Revisiting Title IX process could benefit all, lawyers say

Attorneys say a new process for handling campus sexual assaults could recalibrate a pendulum that may have swung too far.

While no one wants to return to the days when colleges too often swept sexual assault allegations under the rug, local attorneys are cautiously optimistic that a new process recently announced by the U.S. secretary of education will culminate in an improved investigatory and adjudicatory process for all parties.

Speaking to an invited audience at George Mason University on Sept. 7, Education Secretary Betsy DeVos succinctly announced that the “era of ‘rule by letter’ is over.”

DeVos was referencing the “Dear Colleague” letter issued in 2011 by the previous administration’s Office of Civil Rights in the Department of Education.

While perhaps technically not having the force of law, the “Dear Colleague” letter provided a jolt by attaching consequences, including the possible loss of federal funding, if universities did not follow its guidance in enforcing Title IX.

Soon, offices dedicated solely to Title IX compliance began sprouting on campuses nationwide, which in turn has spawned litigation on behalf of students who say they were unjustly deprived of their education due to deficiencies in the enforcement procedures those offices have instituted.

By way of a “transparent notice-and-comment process,” DeVos seemed intent on giving those offices new marching orders to “incorporate the insights of all parties” to “ensure that America’s schools employ clear, equitable, just and fair procedures that inspire trust and confidence.”

And she did so on Sept. 22, when her department issued its own “Dear Colleague” letter withdrawing the Obama 2011 letter and additional guidance from 2014, while referring colleges and universities to OCR policies issued in 2001 and 2006.

While some in the media have painted the rescinding of the 2011 letter as a “rollback” and depicted advocates for victims’ rights and accused students as natural enemies, that is not the case, attorneys urge.

“We should reject the false narrative of two irreconcilable camps, locked in battle over whom Title IX policies harm the most,” Boston attorney Naomi R. Shatz wrote in a Huffington Post piece, which predated DeVos’ announcement. “There is no war.”

“It’s not a zero-sum game,” agreed New York attorney Andrew T. Miltenberg, whose firm specializing in campus sexual assault just opened a Boston office.

In fact, one reason for optimism is the amount of thought being given to the world as it should be by judges overseeing cases brought by students challenging their removal from school, along with bar associations, law professors and practitioners.

Increasingly, the contours of how campus sexual assault allegations should be investigated and prosecuted have been well defined. Now, it may be just a matter of honing in on the best ideas and giving them the force of law.

Procedural protections key

Some local attorneys say that new processes could recalibrate a pendulum that may have swung too far by depriving accused students of what in other legal contexts are considered basic rights, but others are on guard.

In an effort to show the long-overdue zeal urged by the DOE’s Office of Civil Rights in pursuing sexual assault allegations, concepts such as due process and fundamental fairness were cast aside, some argue.

In addition to “seriously overbroad” definitions of sexual wrongdoing on college campuses, which “go way beyond accepted legal definitions of rape, sexual assault, and sexual harassment,” enforcement is “frequently so unfair as to be truly shocking,” wrote Harvard Law School professors Elizabeth Bartholet, Nancy Gertner, Janet Halley and Jeannie Suk Gersen in an Aug. 21 memo titled “Fairness for All Students Under Title IX.”

Miltenberg called the procedures he has seen “at worst, bizarre, rudimentary and sinister, and at best, negligent and juvenile in their approach to equity and transparency.”

But Colby Bruno, senior legal counsel at Boston’s Victim Rights Law Center, said that the 2011 “Dear Colleague” letter has gotten too much of the blame for these issues. Nothing in the letter mandates taking away procedural safeguards from the accused, she said. She pointed to the ruling last year that Wesley College in Delaware had violated Title IX as evidence that the Office of Civil Rights sincerely cares about the due process rights of students accused of sexual misconduct.

And Claire K. Hall, an education attorney in Narragansett, Rhode Island, who advises colleges and universities on Title IX compliance, said that any assertions of unfairness boil down to how the rules are applied by individual schools.

“My feeling is that the guidance from 2011 and 2014 really stressed that the process had to be fair and equitable, so I don’t think the documents themselves are the reason behind any examples where policies have been called unfair,” she said.

In a similar vein, Providence, Rhode Island, trial attorney Steven M. Richard said each case has to stand on its individual merits, “and it’s too sweeping a statement to say that the pendulum had swung one way or the other. The focus should be on individual cases rather than on broad pronouncements.”

Daniel K. Gelb, of Beverly, Massachusetts, said that one thing he hopes emerges is a greater degree of consistency across schools.

As things stand now, he said, one school may permit the accused to question witnesses directly, while another requires questions to be submitted to the presiding chairperson who decides whether to allow it. One school may informally preserve what is said at a hearing using rudimentary audio recording equipment, while another invests in a certified court reporter.

Some of his concerns may be addressed by DeVos’ Sept. 22 letter, which ushers in changes such as allowing schools to cross-examine complainants. The new policies also require that interim measures, such as no contact orders or moving involved parties to a different dorm room, have to be fairly applied.

“Conceptually, preponderance of the evidence is easier to understand because it’s ‘more likely than not.’ That doesn’t necessarily mean that schools shouldn’t move to a clear and convincing standard, but finders of fact will have to be trained on what that means.”

— Claire K. Hall, education attorney

Braintree, Massachusetts, attorney Jeffrey E. Dolan said he has detected a particular focus on the need to ensure the impartiality of fact-finders, given that they are often students or faculty.

Such safeguards “would go a long way toward ensuring that both parties in a case receive a fair process, and that everyone involved has some faith in the reliability of the outcome,” Shatz wrote.

But with new procedures now handed down, many colleges won’t need to change much, according to Djuna E. Perkins of Dedham, Massachusetts.

“Most schools work really hard on their processes, do care a lot about due process, and don’t deserve the criticism Betsy DeVos is making,” she said.

Hall agreed that dramatic differences won’t be noticed immediately.

“Schools still have to have a grievance process, and the Department of Education wants schools to do three things: stop the behavior, prevent its reoccurrence, and remedy its effects. The new guidance will continue to work toward those three goals,” she said.

While it is tempting to think that the courts alone could provide a course correction on procedural deficiencies, Shatz’s colleague, Ruth O’Meara-Costello, said that has not been her experience.

Last year, U.S. District Court Judge F. Dennis Saylor IV in Boston denied Brandeis University’s motion to dismiss in a suit brought by a former student claiming that the school had used a fundamentally unfair process to evaluate the accusation against him. Yet O’Meara-Costello said she has yet to see schools amend their policies in any significant way in reaction to the Brandeis decision.

Choice of standard

Perhaps the most controversial aspect of the 2011 “Dear Colleague” letter was its mandate that colleges use a preponderance-of-the-evidence burden of proof in sexual assault cases.

Of late, the burden-of-proof issue has been the subject of much debate and discussion, dividing the Task Force on College Due Process Rights and Victim Protections commissioned by the Executive Committee of the ABA Criminal Justice Section.

Beyond concluding that a beyond-a-reasonable-doubt standard would be inappropriate, the task force split into camps advocating preponderance and clear-and-convincing evidence. It ultimately compromised, writing in its June report that it would be “best to avoid labels and instead articulate the appropriate basis for a finding of responsibility.”

DeVos has now given schools the option of using either the preponderance standard or the clear and convincing standard.

Hall said that no matter which standard schools adopt, it has to be applied consistently across all student conduct cases.

“But how do you teach the decision-makers what ‘clear and convincing’ is?” she asked. “Conceptually, preponderance of the evidence is easier to understand because it’s ‘more likely than not.’ That doesn’t necessarily mean that schools shouldn’t move to a clear and convincing standard, but finders of fact will have to be trained on what that means.”

Meanwhile, Richard said that the new guidance may inject some degree of uncertainty into pending sexual misconduct lawsuits.

“We all have to wait and see how the interpretation of Trump’s guidance documents might impact pending cases,” he said.

Hall emphasized that schools remain subject to the Clery Act, whose requirements of transparency in reporting campus crimes overlap significantly with civil rights laws.

“Regardless of what happens with Title IX, schools still have to respond to sexual assaults very thoroughly,” she said. “And they are committed to handling these cases in a fair and equitable way.”