Preliminary Education Department rules on campus sexual misconduct include important due process protections, according to report

By August 30, 2018

Late yesterday, The New York Times reported that it acquired a copy of new regulations the Department of Education will soon propose to replace the now-rescinded 2011 Dear Colleague letter and other guidance from past administrations regarding how to respond to sexual misconduct allegations on campus.

Judging solely by the Times’ reporting on the document (the actual draft guidance has not been made public), it sounds as though the proposed rules will go a long way towards restoring meaningful due process protections to the campus justice system, to the ultimate benefit of students — both accuser and accused.

Some caveats: First, the Department of Education told the Times that any information it had was “premature and speculative,” so it’s possible that the document the Times acquired is not the latest version of the proposed rules (these documents generally go through many, many drafts, often with substantive changes between one and the next). Second, news articles are short, while proposed rules are often very long. So it’s possible that details and interpretations that will end up being critical to the rules’ meaning will not be discernible from the Times article alone.

All that said, the proposed rules appear to be an enormous improvement when it comes to how federal government policy affects due process and freedom of speech on campus.

Schools will need to use the correct Davis standard for discriminatory harassment

A broken conception of what constitutes discriminatory harassment, especially sexual harassment, has been at the core of a great deal of campus censorship ever since FIRE’s founding in 1999.

1999 was the same year that the Supreme Court, in Davis v. Monroe County Board of Education, laid out the standard for discriminatory student-on-student harassment in the educational context. In that case, the Court said that plaintiffs could sue schools when they were “deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

To the great detriment of free speech on campus, though, this has not been the standard promulgated by the Department of Education, which has instead used a mishmash of lower standards throughout the years that served to encourage schools to ban a great deal of protected expression.

For example, as the Times points out, the previous administration had on several occasions defined sexual harassment as any “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature,” memorably writing this shockingly broad definition into its so-called “blueprint” for sexual harassment policies across the nation.

This failure to follow the Supreme Court’s clear guidance has been an unmitigated disaster. It resulted in campus policies where students could be brought up on charges for using language like “boy, girl, doll, hunk, sweetie,” for making “suggestive” comments, for yelling “I hit it first!” out a window, for publishing a satirical April Fools’ Day article, or even for simply writing about sexuality and sexual politics on campus.

Because of this defective guidance from the Department of Education, schools have long been uncertain about the proper standard to use for discriminatory harassment in the educational context (which may explain why the Times called it a “new Supreme Court definition” of sexual harassment, even though it’s two decades old).

If the new guidance finally gets schools to adopt the correct, Supreme Court-designed standard for discriminatory harassment policies, it may well be the single greatest blow to campus speech codes in modern history.

Schools may choose between the “preponderance” and “clear and convincing” evidence standards

The Times correctly points out that the most contentious part of the now-rescinded Dear Colleague letter was its mandate to schools to use the low “preponderance of the evidence” standard, which requires only a 50.01% certainty level that an accused student actually committed the offense for him or her to be found “responsible” for it.

While many schools used that standard before the 2011 letter was released, most of the top colleges and universities used a higher standard, and a Yale Law Journal article indicates that as recently as 1987, the higher “clear and convincing evidence” standard (roughly a 75-85% level of certainty) was the campus norm. The 2011 Dear Colleague letter, without warning or discussion, simply and flatly mandated that only the preponderance standard would now satisfy federal law. Given the enormous lack of due process protections in campus tribunals, requiring campus courts to have more than a coin-flip level of certainty that a student committed the offense of which he or she was accused was often accused students’ only real procedural protection. Suddenly, even this was gone, at least in sexual misconduct adjudications; at some schools, post-2011, claims of sexual misconduct are adjudicated under the preponderance standard while other claims of equally serious, but non-sexual, misconduct are still adjudicated under a clear and convincing standard.

Schools generally acted quickly to lower their standards of evidence — in one memorable case doing it in the middle of a student’s disciplinary process. In spite of the rescission of the letter last year, we do not know of any schools that have raised the standard again.

The new guidance, according to the Times, explicitly allows schools to use either the preponderance or clear and convincing standards. Many or most schools will likely continue using the low preponderance standard now that they have it, but at least students will have a chance to advocate for a more reasonable level of protection when brought up on campus charges.

Schools will have to follow a few more of the basic standards of American justice

The Times article mentions a few procedural protections that schools will now be required to provide before finding a student responsible for sexual misconduct in a campus court. These protections are so basic to the search for truth in any kind of disciplinary hearing that it is shocking that all colleges do not already abide by them, but the fact is that most don’t.

They include:

  • The right to face your accuser and cross-examine witnesses

The 2011 Dear Colleague letter strongly discouraged direct cross-examination of accusers, despite the Supreme Court labeling cross-examination “the greatest legal engine ever invented for the discovery of the truth” when the credibility of witnesses is at stake. (This is common in sexual misconduct hearings, where physical evidence is often lacking or unavailable.) Currently, many schools use an investigative model to adjudicate sexual misconduct complaints, where accuser and accused are interviewed separately with no opportunity to ask questions, even indirectly, of the other — a practice that courts have increasingly suggested may violate students’ right to a fair procedure.

The former guidance heavily discouraged direct cross-examination on the grounds that it could retraumatize victims to have to answer questions from the perpetrator. While this may be true in some cases, it could easily be mitigated on campus in the same way that it is addressed in courts of law: by allowing the parties to have their attorneys do the questioning. Instead, most campuses make the situation worse by either banning students from having counsel at all, or requiring counsel or advisors to be a “potted plant” that cannot take active part in the case. For example, in FIRE’s 2017 due process survey of America’s top 53 universities, only three consistently guaranteed students the right to active assistance of counsel.

  • The right to see all the evidence collected in the case

Shamefully, many campuses do not give students, either accuser or accused, the right to see all the evidence collected about the case. The Times states that the proposed rules “allow the complainant and the accused to have access to any evidence obtained during the investigation, even if there are no plans to use it to prove the conduct occurred.”

There is an excellent reason to require this access: The evidence that a college does not plan to use to prove the conduct occurred may include exculpatory evidence that proves, or tends to prove, the accused student’s innocence! There can be no ethical reason for denying this to accused students. For that matter, given the questionable record of campus disciplinary processes, it’s also very possible that accusers may find evidence tending to prove their cases that the school has overlooked.

  • The right to objective and impartial investigations

The Times writes that “[t]he regulations go to great lengths to require impartiality in investigations.” The only thing remarkable about this is that the situation on campuses is bad enough that this needed to be stated. It is a foundational principle of justice that fact-finders must be impartial if findings are to be reliable. Ignoring this, as too many campuses do, results in totally avoidable situations — such as the accused student whose gender-bias lawsuit against Washington and Lee University was allowed to proceed because the supposedly unbiased investigator in his case had in fact spoken publicly, in favorable terms, about an article entitled, “Is it Possible That There Is Something In Between Consensual Sex And Rape … And That It Happens To Almost Every Girl Out There?”

  • The right to be presumed innocent until proven guilty

The final paragraph of the Times article simply states that “[t]he regulations require that schools approach all investigations under the presumption that the accused is innocent until proved guilty.” Sadly, in FIRE’s due process report, at America’s top 53 schools, only a dismal 26.4% even bothered to explicitly guarantee students this most basic of due process rights.

Schools are encouraged to provide “supportive measures” even to students who do not file formal complaints

FIRE has long urged schools to have a robust system for responding to reports of sexual misconduct even when those who come forward as victims are not comfortable with filing an official report or pursuing disciplinary charges against the alleged perpetrator. While these measures must not be punitive, since no determination has been made of the validity of the accusation, that should not — and must not — stop schools from taking non-punitive measures to aid reporting students.

The Times states: “The regulations encourage measures that are ‘nondisciplinary individualized services’ and ‘nonpunitive, time-limited and narrowly tailored’ to keep students in school. The rules provide an extensive list of options, such as counseling, deadline extensions, changes in class schedules, campus escort services, mutual restrictions on contact between the parties, changes in housing, leaves of absences or increased security and monitoring.”

This is all to the good, and FIRE believes it is important for the Department of Education to make clear that reasonable, non-punitive measures may be made available to students regardless of whether the school has officially made a determination of responsibility for sexual misconduct.

In conclusion

FIRE is encouraged to see the Department of Education recommit itself to going through the formal rulemaking process to give all stakeholders the opportunity to provide input. We are also encouraged by the early report that the Department plans to be mindful of the rights of accused students and victims alike. The only viable long-term solutions to addressing campus sexual misconduct will be solutions that take the rights of all students seriously, and we are heartened to see this sign of movement in that direction.

Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections