So to Speak podcast transcript: ‘Dear Colleague,’ due process is now required

May 11, 2020

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak: The Free Speech Podcast takes an uncensored look at the world of free expression through personal stories and candid conversations. I am your host Nico Perrino. On May 6th, the Department of Education published long awaited regulations on how colleges must implement Title IX on their campuses. Title IX is that 1972 law that prohibits sex discrimination in federally funded educational programs. Who could argue with that, right?

However, over the years, and often with the federal government’s prodding, Title IX has been twisted and used to justify censorship and the denial of core due process rights for students accused of sexual misconduct on campus. On the speech side, the abuse of Title IX has led to absurdities, such as charging one student in Oregon for shouting a four-word joke out a dorm window, to also a prolonged investigation in Alaska of a student newspaper reporting on a popular campus social media page.

On the due process side, students accursed of sexual misconduct have been routinely denied access to evidence or even to know what they’re accused of doing. They’ve been forced to participate in hearings without adequate time to prepare, hearings where they or an advisor cannot ask questions of witnesses or accusers, hearings where the college’s judge and jury are clearly biased. And in some cases, students have been denied hearings altogether.

The new Department of Education regulations change much of this by requiring colleges, starting on August 14th, to provide students with many of the procedural safeguards that were previously denied to them. What’s more, the department also will require colleges to use the Supreme Court’s definition of peer-on-peer sexual harassment when adjudicating those claims. Previously, colleges often used a definition proffered by the federal government that broadly and unconstitutionally prohibited any verbal conduct of a sexual nature.

Now, joining us today to break it all down is my boss, Robert Shibley. He is the Executive Director of FIRE and the author of the book Twisting Title IX. We also have with us Samantha Harris, who is a Senior Fellow at FIRE and an attorney in the Title IX and campus discipline practice at the law firm Mudrick & Zucker. Robert and Sam, thanks for coming on the show.

Samantha Harris: Thanks for having me.

Robert Shibley: Thank you for having us.

Nico: All right, Robert, I wanna start with you because you’ve wrote the book about Title IX. When did this really start to become an issue for FIRE? When did this become hot?

Robert: This became hot starting on April 4, 2011. And there’s a certain date for that because that was the day the Department of Education’s Office for Civil Rights, which administers the civil rights statutes like Title IX and other laws that have to do with racial or disability discrimination, issued a letter called the Dear Colleague Letter because it starts Dear Colleague, where it issued some – what we determined at FIRE to be unlawful mandates to colleges and universities about how they had to treat people who were involved in Title IX adjudications on college campuses.

What a lot of people don’t realize is that when there is sexual misconduct on a college campus, even if it’s very serious like sexual assault or rape, it has to be handled – you can’t just turn it over to the police. The universities have to conduct their own investigation of it. And Title IX governs how they do that, treating it as a very severe form of sexual harassment, which itself is considered to be a form of sex discrimination.

And so, on April 4, 2011, they told schools they had to, for one thing, lower the standard of evidence that they used in order to adjudicate these cases. If they had one that was higher, then the preponderance of the evidence standard, which is a 50.01% level of certainty – that is if it’s basically on a knife’s edge whether you believe – whichever side you believe, you just – even if it’s just a tiny bit more certain that one side is telling the truth than the other, then you need to find for that side.

Another issue that it did was determine that colleges had to let both sides appeal every procedure, which was new in many colleges. Generally speaking, you can only appeal, for instance in a criminal trial, if you are convicted. If you are found not guilty it’s over for you, the government can’t appeal that and say, “Hey, I want a second trial at a higher level.” But colleges were told that they had to do that, too.

There were other problems in there. Maybe among the foremost ones was continuing to promulgate bad definitions of sexual harassment that were, and continue to be, harmful for free speech on campus.
Nico: But they also said, or strongly discouraged, colleges from allowing students to cross examine each other, even through an advisor or an attorney. Is that correct, Sam?

Samantha: They discouraged cross-examination out of concern that it would be potentially traumatic for the parties to cross examine one another. The problem is that because virtually all universities prohibit advisors from actively participating in the process, that amounted for all intents and purposes to a ban on cross-examination because you have OCR saying, “We strongly discourage schools from allowing parties to cross examine one another.”

And you have schools, all of which have policies prohibiting advisors from participating in the process, and instead requiring students to represent themselves. And that was the perfect storm, where most schools ended up just banning cross-examination and honestly dispensing with hearings altogether.

Now, just to clarify, under federal law, under the Violence Against Women Act, schools are required to allow students in misconduct proceedings to have an advisor. But VALA is silent about the degree to which schools have to allow those advisors to participate. And so, what most schools do is require those advisors to be what we call potted plants, to just sit there and advise behind the scenes but not actually participate or speak in any part of the proceeding.

Nico: What was the landscape like before 2011? If you got charged with sexual misconduct on a college campus, could you expect your due process rights? Could you expect any due process rights when you were going through that campus disciplinary process? Robert, do you want to speak to that? Or Sam?

Robert: Yeah, it varied more widely before 2011. I wouldn’t say that the decade before that, which was basically the limit of FIRE’s experience there, was any kind of heyday of due process. But you definitely saw more diversity in terms of what schools would provide. For instance, with regard to the standard of evidence, many schools used clear and convincing evidence, which is a higher certainty standard – maybe a 70-80% certainty standard. A few even used the one we’re all familiar with from TV shows and any of your unfortunate felonious adventures you might’ve been on, the beyond a reasonable doubt standard.

Those were plowed over by the April 4, 2011 Dear Colleague Letter. And because it didn’t go through notice and comment, as required by the Administrative Procedure Act, which maybe you’re gonna get into, that actually just came out of sort of nowhere. The government was able to consult with whoever it liked, exclude whoever it liked, and pow. Out of nowhere, schools of a sudden get this mandate that really is a mandate but that the government can claim is not a mandate.

So, there’s really very little to recommend the April 4, 2011 letter from the perspective of legitimacy or any kind of procedural – respect for procedure.

Samantha: I wanted to just add something on there, which is that I think the best measuring stick we have for what happened after 2011, with respect to due process in these proceedings, is that – look, I mean, FIRE was founded in 1999. Due process has always been part of FIRE’s mission. And we’ve always heard from students – from time to time, who complain that they were denied due process in campus judicial proceedings across the board. But beginning after 2011, after that Dear Colleague Letter, we began to be inundated with complaints from students alleging that they were denied a fair process.

And we started to see an increase – I mean, more than 600 students since 2011 have filed lawsuits in federal and state courts alleging that they were denied due process in campus sexual misconduct proceedings. So, while we don’t have, as Robert said, a super clear picture of how those cases were adjudicated before, the absolute groundswell that we got of complaints, which now is just – for those of us who work in the due process stuff at FIRE, it’s just a regular part of our day to get submissions from students who’ve been denied due process in these proceedings. I think that tells us a lot about how things changed.

Robert: Yeah, the requirements were unlawful from the Administrative Procedure Act aspect. But really, it was, I think, more than anything else, a signal. A signal from the federal government that more aggressive enforcement, what I ended up calling twisted enforcement, was going to be expected from now on. And what Sam was indicating is really the best indicator of that, in that those cases started coming our way very, very quickly afterwards and really haven’t slowed down since.

Nico: We’ve made reference to the Administrative Procedure Act a couple times now, so I wanna clarify that for our listeners. That’s what happens when an agency such as the Department of Education wants to promulgate a new regulation that’ll be binding on those they are tasked with regulating. So, in this case, because the Department of Education is tasked with enforcing Title IX on college campuses, they promulgated this rule that came out on May 6th telling colleges and universities how they need to enforce Title IX on their college campuses.

But what you’re saying, Robert and Sam, is that in 2011 the Department of Education didn’t do that, but nonetheless sort of placed requirements on colleges and universities to abide by certain procedures when adjudicating claims of sexual misconduct on their campus. Is that correct? I think this is the first time – this May 6th rule is the first time the Department of Education has ever promulgated a rule on Title IX going through the formal process.

Robert: Well, it’s – yes, you’re mostly right. It’s very confusing.

[Crosstalk]

Samantha: – go through – didn’t the ’97 and 2001 guidance go through some sort of notice and –

[Crosstalk]

Robert: Yeah, here’s the problem. So, there was – documents that were labeled as “guidance” that went through notice and comment process in 1997 and 2001. But they didn’t actually go through the formal rulemaking procedure. I don’t really know why that was. I wasn’t working at FIRE at that time. And indeed, the 2001 guidance actually came out the very last day of the Bill Clinton presidency. So, it was – in terms of formal, actual regulations where you can look it up, it’s in the federal register like you would expect any kind of normal regulated entity to have to deal with, as far as I know, this is the first time since the enabling regulations for Title IX back in the 1970s that this has happened.

Nico: And it might be a little bit confusing for some of our listeners who think that all of our laws are made by Congress. But, as Robert is referencing, there are enabling laws – in this case, the original Title IX from 1972. But then, the administration, or the agencies, are tasks with actually implementing those laws and adding color to them. And often, the way they do that is through this formal rulemaking process which requires notice to the community affected, who can then submit comment that the agency is then required to respond to.

And if you read the May 6th regulations from the Department of Education, they’re 2,000 pages long, in part because most of those pages are spent responding to the comments that they received after they gave notice of the regulations.

Robert: Yeah, I’d say that’s the majority. Yeah.

[Crosstalk]

Samantha: – that’s, for me, one of the most striking things about the regulations is the degree to which they not only obviously went through this formal notice and comment process but the degree to which they painstakingly incorporate so much feedback from commenters. It just goes to show you what a huge difference it is when something is just promulgated with no input and when something actually takes public input into consideration.

And one of the ways we see that playing out is that in September 2018 – I’m sorry, November of 2018 – the department issued what is called a Notice of Proposed Rulemaking, which is where it posted the proposed regulations and then opened them up for notice and comment. And so, until yesterday, all we had seen were these proposed rules. And yesterday, we got to see how the final rules differed from the proposed rules. And while there were a lot of things that remained the same to the extent there were changes, those changes were made in direct response to the feedback received during the notice and comment process.

So, it really underscores the importance of that process and why something like the Dear Colleague Letter, that didn’t go through that kind of process, really was so problematic.

Nico: We’ll need to clarify something else for our listeners. Robert, earlier, when you were describing the origins of the Dear Colleague Letter, you said that colleges are required to adjudicate these. But we’re often talking about cases of alleged rape or sexual assault. Why are colleges required to adjudicate those cases? And why aren’t they handed off to the police, which you might think would be better positioned to address these concerns, or these allegations?

Robert: Well, yeah, I think it’s fair to say that the police are better positioned to deal with allegations of rape and sexual assault. The reason that they have to be, right now, adjudicated on campus is because of the way that Title IX has developed over the years, mostly through judge made law. Title IX originally was passed back in 1972, when I wrote my short book on it, Twisting Title IX – I read the comments in the congressional record. And most of the discussion was actually about allowing women to be admitted onto college campuses equally with men.

Back then, a lot of places – including Harvard, for instance. Harvard was only for men. They had Radcliffe for women, etc. There were many, many non-coed school before that. Title IX has basically eliminated every single male coed school except for one or two, and most of the female ones. It also very quickly became a big deal when it comes to college athletics. And that is, throughout the ’90s and much of the 2000s, much of the talk about Title IX had to do with arguments over whether there needed to be the same number of female and male athletes on a campus, and how you determined what was equal.

But what happened was, Title IX actually says – sex discrimination is the words it uses. This was, a few years later, expanded to cover sexual harassment on college campuses. It was deemed to be a form of sex discrimination. And then, over time, it became – judges started to find that sexual assault, including the most serious forms of it – like rape – were actually, for Title IX purposes, to be considered a form of sexual harassment, therefore putting all sexual misconduct – which is an umbrella act. There really is, I think, unfortunately, in my opinion – it’s considered to be put on a spectrum from forcible rape on one side to people telling dirty jokes on the other side.

And those are actually – the rape is, for these purposes, considered to just be a really, really severe version of sexual harassment. So, that’s why universities can’t simply hand it over to the police. And that’s probably the biggest question that we get, and actually the biggest place where people who generally care about civil liberties are skeptical about why we bother to do anything in this area. Because they say, “Look, this is dumb. Why does FIRE care about this? This should just be a job for the police.” That, however – if that were to become the case, I think it would take Congress to change the law and I don’t foresee that happening anytime soon.

Nico: Sam, so because oftentimes these cases involved allegations of criminal conduct, the accusers can also bring their cases to the police. So, there could be parallel cases going on – one in a campus disciplinary process and one in a court of law. But what happens in a campus disciplinary process, or what is said in a campus disciplinary process by the accused, can be admissible in a court of law. So, does that not create a problem just from a fairness perspective because you are not given the same rights in a campus proceeding as you would in a criminal proceeding?

Samantha: Well, it absolutely does. And it really highlights a lot of the problems that these new regulations look to fix because you have a situation on campus now where students are routinely called in for meetings with administrators to answer questions about alleged misconduct with notice that might just look something like that, “You’ve been accused of conduct that violates the university’s policy on sexual misconduct. Please come meet with the dean on May1st – whatever.”

And the student may have to actually show up and start answering questions without having any idea what they’re alleged to have done wrong. And many of these students don’t know – schools often don’t – even though under the Violence Against Women Act, as I mentioned, students are entitled to have an advisor with them at every stage of the proceedings, schools often don’t offer up this information to students. So, very often, students will go into these meetings alone, with very little idea of what to expect, without understanding that something that they say in that case may be used later in a criminal proceeding.

Now, interestingly, not as many of these cases as you think do involve parallel criminal proceedings. And that’s because typically, the way that consent and sexual misconduct is defined on college campuses is very different than the way it’s defined at law. So, there’s not as much overlap as you might think. But it is a very valid concern and it underscores why students need a fair procedure in these cases.

Nico: Can you dive into a little bit of how colleges defined consent and how maybe the law, or the general population, defines consent? Because as you said, there is a bit of a divergence there.

Samantha: Yeah. So, colleges increasingly use what we call an affirmative consent standard, which instead of – if you think of traditional consent as no means no, meaning that sex is presumptively consensual unless there is evidence that there wasn’t consent. And that evidence might be evidence of force, it might be evidence of coercion, it might be evidence of incapacitation. But you start from the presumption that sex was consensual and then there needs to be evidence that it wasn’t.

Under the affirmative consent, or yes means yes standard, the presumption is that the sex was not consensual unless there is evidence of affirmative consent to the sexual encounter. And not just the sexual encounter. What’s interesting is that colleges really atomize sex and consent on campus. So, you have to be able to demonstrate that you received consent at every stage of a sexual encounter. Did you have consent to kiss the person? Did you have consent to take the next step and so on and so forth.

And in this setting of a campus judicial process, it’s very, very difficult, if not impossible, for a student to prove that they had affirmative consent to each and every step of a sexual encounter because obviously typically there are not witnesses or other evidence. So, where – you set up the situation where the presumption is that sex is nonconsensual unless there’s evidence that it was, it’s really a recipe for disaster, particularly when combined with all of the procedural unfairnesses that plague campus disciplinary proceedings.

Nico: So, to be clear, I grew up watching rom-coms with my girlfriends. Just kissing the girl is not consent anymore. So, if Harry meets Sally and Harry kisses Sally but Sally doesn’t give permission to Harry to kiss her first, that would technically, under the definitions many of these colleges use, be nonconsensual.

Samantha: Correct. I mean, this is how it goes in a campus disciplinary proceeding. If the judicial body is evaluating a sexual encounter that involved everything from kissing to sexual intercourse, and all the things that might happen in between, they will ask at each step – okay, so if the statement is first, “Well, I kissed her.” “Okay. Well, how did you know that you had her affirmative consent to kiss her? Okay. How did you know that you had her affirmative consent to put your hand on her thigh?” And so on and so forth – and if the student can’t come up with convincing answers to each and every one of those questions, he/she is in trouble.

Nico: And they use – a lot of hay in 2011 was made over the preponderance of the evidence standard, the standard by which colleges would use to judge or determine guilt in these proceedings. And FIRE was among those who made hay out of the requirement that they use this lower standard. Now, that’s the standard though, Sam, that is often used in a lot of civil cases, is it not? So, what’s the problem with using it here on college campuses?

Samantha: It is often used in civil cases. I think there are two real problems that I would identify with using it on campus. The first is that civil litigants have a lot of procedural protections that students on campus are not afforded. So, the preponderance of the evidence standard, we say it’s 50% plus a feather, right? So, it’s really just – if there’s any evidence that it’s more likely than not that something happened, then the person is found responsible. And when you have protections in civil court – rules of evidence, witnesses testifying under oath, things like that – those mitigate the limitations of that standard of evidence.

In a campus proceeding, where oftentimes there’s not even a hearing – oftentimes, you just have an investigator interviewing the parties, possibly interviewing witnesses at their discretion, and then deciding who’s more likely to be responsible, that standard of evidence really doesn’t hold up. The other thing is that I think that people compare these campus proceedings to civil proceedings because they can’t throw you in jail for being found responsible on campus in a campus proceeding.

But there really is a quasi-criminal element here. I mean, students who are found responsible for sexual misconduct, this is something that affects the rest of their lives in the sense that it’s very difficult to get into another school. It’s gonna haunt them when they try to get jobs. And to be clear, if they’re responsible for sexual misconduct, that’s entirely appropriate. Sexual misconduct is a terrible crime. The problem is that you have these campus tribunals that really are not primarily aimed at finding the truth and that – the findings of which are really unreliable. So, to have students’ whole future staked on these really haphazard kangaroo courts is really distressing.

Nico: Robert, why is cross-examination so important in these sorts of cases in particular?

Robert: Well, cross-examination, famously the Supreme Court once called it the greatest engine for the discovery of truth. And that’s because it really is the engine that makes the adversarial process that we have as our American justice system work. What does is it matches up the incentives correctly so that the people with the most incentive to defend themselves or, conversely, to make sure that their story is believed, are the ones who are asking the questions and the ones who are driving that.

So, there’s a couple of other aspects to it but it’s important that you be able to, in a live way, face your accuser. I mean, part of it is just a necessary part of being able face your accuser, whether that accuser be – in a campus sexual misconduct case, whether that be the person you’re accused of having engaged in that misconduct with or a witness who’s saying they saw you do it or something along those lines. You need to be able to say, “Okay, well, how can you prove you were there, etc.?” I mean, even really very basic questions like that, which may not – and I think frequently do not – occur to a single investigator, who often has an agenda – they’re after all paid by the school.

They’re not paid by the school to never find a problem. So, there’s a broken set of chain there. It’s important that the person with the most to lose be the person who is able to ask those questions. Sam, I know you had some other thoughts on this, too.

Samantha: Yeah. I mean, the thing with cross-examination is that particularly these cases almost always turn on credibility because there are very rarely witnesses to a sexual encounter. And so, typically, there’s not gonna be a lot of evidence of what happened other than one party’s word against the other’s. And in those cases. It’s critical to be able to test the credibility of the parties.

And there really just is no effective way to test the – if all you have is the two parties narratives on paper, and all you can do is look at them and say, “Well, that one sounds a little bit more plausible than this one,” that’s very different from a situation where the parities are able to listen to one – review one another’s statements, listen to one another’s testimony, and then pose questions. And again, I’m talking about these questions being posed through a third party, through an advisor. But that imposed question’s aimed at – to the extent the other person is not credible, at showing that the person is less credible.

You really just can’t get that from the parties’ written statements. I mean, having been part of proceedings in which it’s all done on the written statements, and having done proceedings where you have the ability to ask those questions, there is just no comparison in terms of your ability when you know that your client is the person who’s being truthful. There’s no question that it’s very, very difficult to prove that without being able to pose questions to the other party to demonstrate whether or not they’re credible.
Nico: So, let’s talk a little bit about what these May 6th regulations do. What are the rights that they give to students who are involved in these hearings? The regulations provide for an express presumption of innocence, which bizarrely was absent from a lot of these proceedings. They allow for live hearings with cross-examination conducted by an advisor of the individual’s choice. It may be an attorney. The regulations require sufficient time and information, including access to evidence, to prepare for interviews and for the hearing.

They require impartial investigators and decisionmakers. And they require that all relevant evidence receive an objective evaluation. Sam, that was often something that was excluded from these hearings as well, is that inculpatory or exculpatory evidence just wasn’t introduce or given to both parties, correct?

Samantha: Correct. And if you look at a lot of the lawsuits that have been brought by students who allege they were denied due process, the exclusion of exculpatory evidence is a common theme. And sometimes that evidence is in the sole possession of the university. For example, there was a case at Ohio State University where the university had evidence that the accuser brought a claim after learning that she had failed courses and was at risk of flunking out of medical school. And through the allegation, she was able to get accommodations that allowed her to stay in school.

And the accuser did not know this. The school knew this and the accuser did not know this. And the court actually held that – the fact that the school had this information in their possession and did not share it with the student, may have violated his due process rights. So now, by requiring that schools allow the parties to review all of the evidence in the school’s possession, even if it’s not the evidence that the school ultimately relies on to make its determination, it’s gonna be a lot harder for schools to exclude exculpatory evidence like that, or inculpatory evidence I should say.

I mean, obviously at FIRE, and in my work as a campus disciplinary lawyer, we hear from students largely who allege that they have been wrongly accused. But all of these procedural protections are really important for complainants, too. There are cases where – particularly, if the accused student is a high-profile athlete or the child is a big donor, the school may have an incentive – a financial incentive – to sweep things under the rug. So, this is not just that the accused student’s gonna get to see the evidence. The complainant’s gonna get to see it too. So, if there’s evidence tending to prove someone’s guilt, that they university is for any reason inclined to hold back, they’re not gonna be able to do that either.

Nico: Robert, now another important element of these regulations is the standard that they provide for sexual harassment on campus. This is the standard proffered by the Supreme Court of the United States in 1999 in a case called Davis v. Monroe County Board of Education. Can you tell us a little bit about that standard and why that standard in particular is important to avoid the sort of censorship that fire has seen throughout its history on college campuses?

Robert: Yeah, in 1999, in that case that had to do with sexual harassment – actually, in an elementary school – the Supreme Court went through a lot of the same kind of First Amendment analysis that FIRE, or any other First Amendment lawyer, might go through to try to figure out how best to reconcile the fact that we do have a First Amendment and we have freedom of expression in this country that needs and must be respected along with the fact that some sexual harassment doesn’t involve only physical conduct but also the conduct that our expression, but maybe not protected expression.

So, the Supreme Court determined that the conduct at issue would have to be severe, pervasive, and objectively offensive as well as unwelcome. So, I’ll get to both of those. And effectively prevent the person from getting an education. And each one of those is important. No. 1, severe – this is harassment. It’s not annoyance. What makes something annoying, what turns it into harassment, a big part of that is the severity of it. If somebody simply tells a single dirty joke and then you never see them again, that’s not harassment. It would be – it cheapens – often people colloquially talk about that sort of thing as harassment, but it’s not. And the courts don’t expect schools to treat it like that.

Pervasiveness is another aspect that needs to be there. Pervasiveness means that it’s something that’s hard to avoid, right? That it’s all around you or that, for some reason, you can’t just turn it off, or walk away, or something along those lines. And then, there is objective offensiveness, which means it needs to be offensive to a reasonable person. If somebody is offended simply by saying, “You have nice eyes,” or something along those lines, that’s not necessarily going to get over that standard. It also needs to be subjectively offensive to the person, which – the way they put that is that it needs to be unwelcome.

In other words, if you are saying something that is sexual in nature to someone but they are – it’s not unwelcome to them, again that’s not harassment because in that case it wouldn’t even be annoying. It would be welcome. And then, finally, it needs to have an impact on the person’s ability to get an education. There’s been a certain amount of argument over, for instance, if two students get into some sort of conflict off campus, or even if they get in conflict with somebody else from a different campus, in an area where maybe they’re home for the summer or they’re in another country, or who even know – what should the school be able to do?

In order to limit the jurisdiction of school so that they don’t have literally universal jurisdiction over every single thing a person says or does, it has to actually affect the person’s ability to get an education at that school. And the reason that’s important is because, in the 2001 guidance, that took place after Davis was passed in 1999. But instead of simply adopting the standard, it’s actually an interesting read – not that I would recommend people read it. But to see them try to argue that a watered down standard that said, for instance, severe or pervasive meant the same thing as severe, pervasive, and objectively offensive.

They basically said, “Well, we both mean the same thing.” As I think they put it well in the – somewhere in the 2,000 pages of regulations that came out yesterday, that hasn’t been born out by reality. The fact is universities all used much lower standards – pretty much all of them that I know of. I know there are a few exceptions that could very easily be abused in many, many cases to censor a lot of constitutionally protected speech and that did not end up equating to the Davis standard.

And thankfully, the new regulations say not in the name of Title IX, you’re not gonna do that anymore. We’re gonna say that for Title IX purposes, this is the definition of sexual harassment. And if you’re gonna attempt to punish expression for some other reason, that’s not for this reason. You don’t have that excuse.

Nico: So, we’ve heard critics say that this is a very stringent standard, the severe, pervasive, and objectively offensive standard. But when the Davis case came down, who was it – Kennedy – thought it might –

[Crosstalk]
Samantha: Kennedy, yeah.

Nico: – not be speech protective enough?

Robert: Yes, this – Davis was a 5/4 decision with – and this standard was written by the five liberals of the court if you count O’Connor as the moderate. I believe she was the one who wrote the opinion. And the four conservatives who – Kennedy wrote the dissent there – said, I think very presciently in many ways, “Hey, this standard is not stringent enough. It’s going to enable a whole lot of censorship on college campuses” – or, excuse me, not on college campuses, in education generally. At this point, we’re now arguing that Davis is the right standard to use. I actually think there are good arguments out there that somebody could entertain that Davis is insufficiently stringent.

I don’t think that’s a crazy argument. But frankly, I think the Davis standard and FIRE has long taken the position the David standard, if properly applied – and there is a lot of rubber meets the road type of stuff there – will protect the right expression that is protected, and also allow colleges not to protect behavior or expression that’s so severe, pervasive, and objectively offensive. I’m just repeating myself there, but that it does amount to sexual harassment. A lot will depend on the sincerity of colleges actually applying that standard, and that remains to be seen.

Nico: So, in talking about these regulations – and FIRE, since 2011, has been – I hate to say that about ourselves, but we’ve been the lead champion in trying to get these regulations rolled back and to get due process and free speech reintroduced to these campuses – or introduced in some cases in the first place. And in making these arguments, we’re having to put on an education for a lot of people as to why certain things are done in America. Why is the presumption of innocence a good thing? Why is cross-examination important? Why is it important that we have impartial investigators and decisionmakers?

Why is it important that the judge and the jury be separate? So, Sam, I wanna do a little bit of a rapid-fire with you as we near the end of this podcast, to just talk about a couple of those things. Why is it important that the person who conducts the entire investigation, and presumably knows the most about the allegations and the evidence – why is it important that they’re not the ones who make the decision about guilt? Why do we separate the police and the prosecutor, for example?
Samantha: Right. Because there’s an opinion in a case from Brandeis University where a judge – he puts it so well that I almost – I mean, I don’t literally have the quote in front of me, but I’m gonna try to paraphrase as best I can. He said basically any time you combine all of these rolls in one person, even if that person is incredibly well intentioned, their own biases, and prejudices, and preconceptions may infect the process. So, it’s a checks and balances thing. Even if that person – I mean, unfortunately, for a lot of other reasons, that person on campus is not always impartial and unbiased.

But even if they were, it’s a lot of authority to put in one person. And you wanna have those checks and balances in place, precisely because of the presumption of innocence.

Robert: It also means you only have to fool one person. I mean, that’s important, too. When you’ve got all of that power in one hand, those people have one specific set of vulnerabilities, whether – everybody’s got prejudices. It’s unreasonable to expect that they don’t – and other things like that. So, it really puts too much – it’s like putting all your eggs in one basket. If you figure out a way to grab the basket, you’ve hijacked the whole process.

Nico: And the training material – so, for clarity, the single investigator model that was popular on college campuses for many years is now banned by the regulations, correct?

Robert: Yes.

Samantha: It is, but it should be noted that the regulations don’t go into effect until August 14th. So, there are still – I mean, the single investigator model still dominates on campus right now. And so, it’s not yet a thing of the past though it soon will be.

Nico: Why did – just a quick aside. Why did colleges go to that model? Is it just the most efficient and cheapest way to investigate, or did they honestly think this was the best way to handle these serious allegations?

Samantha: I mean, one big conflict between the way colleges see their processes and the way people outside of the ivory tower see them is that schools like to say that their process is educational, right? And they really shy away from anything that comes across as adversarial. They’re very afraid of operating mini courtrooms. And to some degree, I don’t entirely blame them. I mean, colleges have been forced by Title IX into operating these parallel judicial systems. And I can’t imagine it’s easy even when they do have good intentions.

So, I think a lot of it is just an effort to avoid this adversarial model. But I think, unfortunately, to have a fair proceeding, that adversarial model is genuinely unavoidable. It’s also been spoken about favorably by the federal government under the Obama administration. There was a White House taskforce to protect students from sexual assault that issued a report. And that report spoke favorably about the single investigator model, which I think led a lot of schools to think, “Okay, well, if we do that we’re gonna be complying with Title IX and what the federal government wants us to do.”

Nico: Now, another thing that we had seen in a lot of these cases were training materials that were biased – so, not the individuals actually conducing these investigations, but training materials that said that if someone sounds logical that’s an evidence of their guilt. Robert, you had talked a little bit about this in your book Twisting Title IX. Can you explain for our listeners what those training materials sometimes look like, and do you suspect those training materials will go away now that these new regulations are put in place?

Robert: Well, I certainly hope that the worst ones at least will go away, although I suspect that suddenly a lot of the training will become more in the manner of lore than actual training. I hope I’m wrong about that. The new regulation –

[Crosstalk]

Samantha: – fear that they’re just gonna stop putting them in writing.

Robert: Yeah. One of the really appalling ones that we did run across was using a book that was written, dealing with how to deal with domestic violence victims and talking about the nature that domestic violence perpetrators, in the opinion of the author, had. And acting persuasive and logical would be one of the signs of guilt. And conversely, having a story that didn’t hold together that well or wasn’t – didn’t necessarily follow was actually considered to be a sign that people are telling the truth.

There’s a lot of inbuilt sex stereotyping there, too, having to do with the way men and women supposedly relate. And one thing that we have found, which I think is extremely ominous – and I’ve never had a good explanation of this – is that FIRE actually has – we requested – we FOIA’d Title IX training materials from many schools. We also requested Title IX training materials from a number of private schools. We got resistance on many of the FOIAs. Many of them did end up coming through. Not a single private school, which was not subject to a Freedom of Education request was willing to send their training materials to us. Not a single one.

There is absolutely not defense for that. And in many cases throughout this entire process, I will say that unfortunately the opponents of due process have been relying on, frankly, a lot of obfuscation and refusal to engage in argumentation of any kind in order to avoid explaining things like why, for instance, you wouldn’t say students are innocent until proven guilty. We saw that happen twice in a row. More than 70% of the top 53 schools – 73%, I think, failed to say anywhere in their policies that students were – just come out and say, “Hey, they’re innocent until proven guilty.”

We pointed out the first year. Second year, there was no difference. That is not an accident. That is done on purpose. And there is simply no justification for it and yet the schools have continued to do their very best to avoid ever having to explain any of this.

Nico: Sam, double jeopardy. This is something that’s core to Americans’ fundamental understanding of a fair process. The idea that you cannot be tried for the same crime twice. However, on college campuses you can. So, these regulations, unfortunately, do not fix that. But the Department of Education’s hands were also a little bit tied. So, why is it important that people not be tried for the same crime twice? And how do these regulations address the question of double jeopardy?

Samantha: I mean, it’s just – it’s been one of the fundamental principles of our justice system. And yet, on campus, as you say, both parties have to be given the right to appeal. And if you think about what it’s like to go through that process once, and to be found not responsible, and then essentially to have to go through it again – now, the department says that you have to be able to appeal on three bases. And they’re fairly narrow. They are – I don’t have it right in front of me, so Robert, you can jump in, too. But it’s new evidence that wasn’t available at the time of the hearing, it’s I think substantial procedural error – it’s not – the department does not mandate that people be able to appeal on a blanket the finding wasn’t supported by the evidence.

But it does unfortunately allow for schools to add additional bases for appeal. So, if schools add the additional bases for appeal, that you can appeal on the grounds that the findings weren’t supported by the evidence, that’s essentially just a rehearing and it does – it will put students in that position. And among the many lawsuits we’ve seen against schools, we have seen a fair number of cases where students were found not responsible. And then, on appeal, they were found responsible sometimes based on allegations that were not introduced at the original hearing – not because they weren’t available or brand new, but just because they weren’t introduced the first time around.

That’s terribly unfair. So, this is one of the downsides, even of these new regulations, is that the double jeopardy continues. But overall, this is a huge – I mean, live hearing with cross-examination, unbiased trainings with training materials having to be made publicly available on a school’s website, access to all of the evidence, meaning notice. There are, as we just discussed, a few problems with these regulations. But overall, it’s an overwhelming improvement and I think it’s gonna go a huge way towards restoring due process on campus.

Nico: We’ve said students a lot. But a lot of the Title IX abuse that we see on campus also occurs with faculty members. Laura Kipnis was famously brought up on a lengthy Title IX investigation for writing a book about the abuse of Title IX at Northwestern University. There was the case of the professor at Howard University who wrote a law exam question about Brazilian wax, who was put through something like a 500-day investigation because one of his students took offense to the legal question. But these regulations are mostly focused on students, right? I mean, this is focused on peer-on-peer issues?

Robert: Well, in terms of what we’ve been talking about, yes. They actually do also – I think, maybe even for the first time – actually explain officially, in terms of regulations, that there is quid pro quo sexual harassment, which is the traditional thing. “Sleep with me and you get a promotion,” or vice versa, “You don’t get a promotion if you don’t sleep with me,” which really applies to employees. So, that has a lot to do with faculty. But it’s been assumed that that was part of it anyway.

And then, we’ve got the peer-on-peer hostile environment harassment, which is governed by Davis. And part of the reason is that because schools are also an employer, there’s a lot of employment law that applies to faculty members. I do think there will be positive knock-on effects here. I think trying to, for instance – I think it’ll be much harder for Northwestern to justify or get away with another Laura Kipnis inquisition once these new rules take effect, simply because that was so preposterous. It really can only be supported by a hugely overwrought Title IX apparatus.

So, I think there will be positive knock-on effects for faculty, but you’re right. For the most part, these regulations don’t have a ton to do with the way faculty members are going to be treated.

Samantha: Right. I mean, I think, Robert – correct me if I’m wrong, but on a lot of campuses, the way that faculty claims are handled is that the investigation might be done pursuant to a campus Title IX policy because a lot of times a sexual misconduct policy applies to all faculty, students, and staff. But then, there will be different ultimate adjudication and sanctioning processes for faculty and staff that are different from the student processes. I would guess that to the extent that investigations into faculty are conducted pursuant to schools’ Title IX policies, that those investigations will have to comply with the new regulation –

[Crosstalk]

Robert: Yeah, that’s a good point.

Samantha: – in terms of a notice given and things like that. I don’t know that faculty will be granted the hearings and things like that because that’s often where you see these policies diverging. You’ll have the investigation done under the auspices of the Title IX policy, and then the faculty will have its own adjudication and sanctioning practices. But I do think – again, I’m not positive, but I think that to anything that’s actually occurring pursuant to the university’s Title IX policy will now have to comply with the regulations in terms of notice and access to evidence and things like that. What do you think?

Robert: No, that’s a good point. And the reason for the difference, just briefly, has a lot to do with the fact that so many faculty have provisions about this in collective bargaining agreements or contract agreements. So, you might have, right now, a school, for instance, that has a single investigator for students who ends up effectively making the decision. But faculty would get a hearing. So, in many cases, schools – because faculty have – the students really have no bargaining power at all. Faculty do. And so, many times they have protections that are different in that way.

Nico: And that’s why you often see the clear and convincing standard for faculty members –

[Crosstalk]

Robert: That’s right.

Nico: – when they’re going through the disciplinary process because that’s a part of their collective bargaining agreement with these universities.

Robert: That’s right.

Nico: So, I’ve got two more questions – one for Sam and then one for Robert – before we sign off. Sam, the courts – they’ve been going in the direction of compelling universities to provide some of these protections that these regulations now guarantee.

Samantha: Correct.

Nico: Absent the Department of Education coming out with these regulations, what would we have seen schools have to start doing just as a matter of being good by the law as the judges in these various courts have seen it?

Samantha: Well, it would vary a lot depending on where you were in school. So, for example, the Sixth Circuit, which includes Michigan, and Kentucky, and Ohio, and – I don’t know if you have any other Sixth Circuit states to add there, Robert. I don’t have them all in front of me.

Robert: Not off the top of my head. Maybe West Virginia. I’m not sure.

Samantha: You have district courts in every state. A lot of states have multiple districts. And then, you have circuit courts, which are the appellate courts. And they generally include the district courts of multiple states. This is the federal court system I’m talking about. And then, above the appellate courts, you have the Supreme Court. So, the Sixth Circuit, which governs a handful of Midwestern states, has held that due process does require a live hearing with cross-examination in cases turning on credibility. So, already –

[Crosstalk]

Robert: Tennessee. Tennessee is one of them.

Samantha: – we were seeing universities in the Sixth Circuit have to revise their policies to be consistent with that decision. The First Circuit has held that some right of cross-examination is necessary but that may be a more circumscribed type – only through a third party like a hearing panel. The Eighth Circuit is considering a case on cross-examination right now. So, we’ve seen this case law evolving patchwork around the country, such that students’ right really vary depending on where they were in school.

Whereas now, with these regulations, you’re gonna have – and of course, very dramatically depending on whether they were in a public or in a private school because constitutional right to due process is something that applies at public universities but not private. So, now you’re gonna see this standardized so that students around the country are gonna be entitled to the same rights.

Nico: Robert, what does this really mean for FIRE? I mean, this – a lot of the stuff that’s in these regulations have been things that we’ve been arguing for – maybe some of our top priorities over the last 10 years. So, when yesterday happened, and you’re reflecting on everything since 2011, what did it mean to you? What did it mean to the organization?

Robert: Well, it’s obviously a big victory. When we began this, I believe our first letter to the Department of Education about this was in May of 2011, starting to take issue with this. Frankly, it seemed like an uphill battle up a cliff. As time went on, I think that we obviously gained allies. More and more people started to actually noodle through what the problem was. People on both sides of the aisle, and libertarians as well, started to say, “Hey, there is really a severe problem going on on these campuses.”

And so, I think the smart money back in 2011 probably would’ve been that we were not going to get to this point. So, it’s a huge deal in that sense. But we still have a lot of work to do. There’s already groups that have basically said that they are going to sue to try to stop these regulations from being put in place. Unfortunately, Vice President Biden has also said that if he’s elected he would undo these regulations.
So, there’s fights ahead of us. And then even if everything is smooth sailing and everybody just decides, “Hey, these regulations – we’re just gonna let it go. Let’s do it.” I think there’s gonna be many years of trying to get schools both to implement these regulations properly and – or to implement them at all, basically – and then, also to actually take them seriously. Just in the way that FIRE often has cases at schools whose – where they – obviously, most schools have speech codes. But often, we have free speech cases at schools that really don’t have very much to do with the speech code. They find a different way to violate these same rights. I think we’ll continue to see that.

So, it’s a big deal – it’s a huge, huge deal – once they go into effect for students on college campuses. For FIRE, it’s another step on the ladder to what we’ve all hoped from the very beginning, which is basically putting ourselves out of business. And I would love to see that come closer and closer to happening.

Nico: Well, for any of our listeners that wanna learn more about our work on this issue, you can go to our website. We’ve probably written tens of thousands of words over the last nine years about this issue. Robert’s written a book about this issue. Sam has, on our website, a due process litigation tracker where she digests a lot of the major cases that have opinions and tells people what the law is, or what happened in those cases. And that’s a tremendous resource for anyone who is looking to understand that.

Over the years, FIRE has testified in Congress. We’ve had meetings with different departments and agencies, different allies. We’ve even filed a lawsuit against the administration, the Department of Education, for violating the Administrative Procedure Act, that was subsequently withdrawn once the Dear Colleague Letter was rescinded back in 2017. But we’ve been at the forefront of this and we’ve been gathering allies ever since 2011. So, it’s a huge victory and I think I’m safe to, on behalf of FIRE, thank all of our supporters who might be listening today for their continued support throughout the fight.

But the fight is not over. We’ve still got much more work to do to ensure that these guarantees from these regulations are actually implemented on college and university campuses starting August 14th. And I know that my colleagues Robert and Sam will be doing everything they can to do so. So, Robert, Sam, thanks again for coming back on the show.

Robert: Thank you for having us.

Samantha: Thank you.

Nico: Just a reminder. Robert is the Executive Director at FIRE and he is the author of the book Twisting Title IX, which can be bought at Amazon or wherever else you buy your books. And Samantha Harris is a Senior Fellow here at FIRE and an attorney in the Title IX and campus discipline practice at the law firm Mudrick & Zucker. This podcast I hosted and produced and recorded by me, Nico Perrino, and edited by Aaron Reese.

You can learn more about So to Speak by following us on Twitter at twitter.com/freespeechtalk or by liking us on Facebook at facebook.com/sotospeakpodcast. We also take email feedback at sotospeak@thefire.org. If you enjoyed this episode, please consider leaving us a review on Apple Podcast, Google Play, or wherever else you get your podcasts. They do help us attract new listeners to the show. And until next time, thanks again for listening.