In 2011, the Obama administration transformed Title IX law by issuing its “Dear Colleague” letter, a set of recommendations encouraging colleges to amplify their protections of victims of campus sexual assault and harassment. But the Dear Colleague letter’s guidelines have proved difficult for colleges to adhere to — and have attracted many critics, primarily for its failure to provide due-process protections for accused students.
Harvard Law School’s Jeannie Suk Gersen is one of those critics. In her regular columns at The New Yorker and in a California Law Review article entitled “The Sex Bureaucracy” (a version of which appeared in The Chronicle Review), Gersen has argued that the Obama-era Title IX regime was “detrimental to the fight against sexual violence.”
Under Betsy DeVos, U.S. secretary of education in the Trump administration, that regime is about to undergo major changes. The Chronicle Review spoke with Gersen about the new rules, how the Title IX debate became so polarized, legal challenges to DeVos by the ACLU, and the role of the law professor as public intellectual.
What are the biggest changes in Title IX?
The major story here is that for the first time, the regulations are really making it clear that there are certain elements to a fair process. It’s not just telling schools to be fair, which they have been told by the Education Department multiple times. These regs are actually laying out some of the elements that the department thinks are essential to making a process fair in the college disciplinary context. There is now some meat on the bones about what fairness consists of. Reasonable people can agree or disagree about whether all of those elements need to be in there, or whether there are others that should be in there. That’s what regulation is — it considers, and it makes choices.
There are some excellent, essential things in the new regulations, and also some bad things, and I don’t want those bad things to be extended to other contexts.
It is now clear that some of the things that some schools have done in the past cannot be done anymore. Those include very basic things — like the respondent not being given the complaint, not being told what the allegations are, not being told who the accuser is, or who the witnesses are. Not being allowed to present evidence or to see the evidence after it’s been gathered, so that the respondent can respond to it. Sometimes respondents have been told that they can’t physically have any of the investigative materials — they have to look at them in an administrator’s office and take notes, which obviously impairs the ability to seek the advice of any lawyer or any adviser
The presumption of innocence is a big thing. Now the regulations say that there has to be a “presumption of nonresponsibility” — that’s what they call it. Ordinary people, when they hear about this, think: “How could that not have been a basic requirement?”
Another big deal is the new requirement that there be a hearing and cross-examination. Many, many schools, including Harvard University, do not currently have hearings as part of their Title IX process — they simply conduct interviews seriatim, with all of the relevant witnesses and the parties. Then at the end of that interview process the decision maker will just make a decision as to responsibility or nonresponsibility. There won’t be a live hearing of any kind.
It’s not that having no hearing is absolutely or automatically unfair, but I tend to think that processes are more fair when there’s a hearing, especially on something important. It’s not simply a parking ticket — and even for a parking ticket you have a hearing.
No longer are schools allowed to use the single investigator or the investigator-only model, where the same person does all the investigation and all the adjudication. So now the regulations require that someone does the investigation, and someone else does the adjudication. It’s a bit like having the police investigator and the judge who decides the case be different people.
In a New Yorker column, you refer to the “disturbingly large gap between reality and rhetoric” with regard to DeVos’s Title IX provisions. You mention Nancy Pelosi’s calling the provisions “callous, cruel, and dangerous.” Can you say more about the gap you perceive? What motivates it?
Right now it is part of our general culture of extreme polarization, of never wanting to see that the other side is other than callous, cruel, and dangerous — and out to harm people. I’m not going to say that the idea that it’s callous and cruel is an unjustifiable opinion, but it’s got to be backed up by something solid. I have some genuine objections to the regulations, but I don’t think it comes anywhere near thinking that it’s telling schools to sweep rape under the rug.
The Trump administration did something on an important issue, and it is very important to a lot of people to understand all of it to be without merit, all of it to be nefarious. I basically think some of it is really good and some of it is not good.
Is it fair to say that you are more for the DeVos revisions than against them — that on balance these seem better than the Dear Colleague-letter protocols?
Yes, because the regime that was there before had very few concrete directions. Lots of people talk as if the Dear Colleague letter required schools to do all kinds of things that are objectionable, but that’s not the case. If you read the Dear Colleague letter, very few things are required. The preponderance-of-the-evidence standard is one. But everything else is more rhetoric about making sure that sexual violence is taken seriously.
So I’m not a big Dear Colleague-letter naysayer, but what it left was a set of vague directives that led schools to overcompensate for their uncertainty about what they were supposed to do to keep the government satisfied. And at that point, schools did all kind of things that were not anywhere to be found in the Dear Colleague letter.
I really do not trust this administration. There are some excellent, essential things in the new regulations, and also some bad things, and I don’t want those bad things to be extended to other contexts, namely race and disability discrimination.
So in the absence of concrete regulatory prescriptions, they just sort of invented things?
Exactly. And they were influenced by lots of other cultural forces, including interest groups and groups that were out for profit, like companies that were offering their services on how to design Title IX systems. Once certain orthodoxies would catch fire within those industries, they would just spread.
Do you worry about DeVos’s larger motivations? Do you think that this is the first step toward something like a true gutting of the Title IX system? In other words, do you trust her?
I don’t tend to think in terms of “Do I trust” public officials. I think in terms of the process. There is a process set up for officials of any administration. The particular one that she used, which is the rule-making process, happens to be very robust, dictated by the Administrative Procedure Act. It has certain requirements, which she followed.
But, by the question of trust, you might mean, do I think, if Trump and DeVos stayed in power, will they attempt to enact policies that narrow schools’ obligations to address racial harassment, and narrow the definition of racial harassment, as the regulations have done for sexual harassment in ways I have criticized? The answer to that is, no, I really do not trust this administration. There are some excellent, essential things in the new regulations, and also some bad things, and I don’t want those bad things to be extended to other contexts, namely race and disability discrimination.
There is a lot cognitive dissonance for some liberal or left-leaning observers who are skeptical of the consequences of the Obama-era Dear Colleague letter but who can’t figure out how to feel about Trump and DeVos seeming to partially rectify it.
I understand. But the right answer can’t be that because it comes out of a particular administration you have to condemn it. That can’t be the right answer.
Your co-authored California Law Review article, “The Sex Bureaucracy,” is cited several times in the new guidelines, as is one of your New Yorker articles. How do you feel about the treatment of your ideas?
I don’t think it is fully accurate or precise, because they are really citing nameless commenters who are citing my work to support a general point of theirs.
In particular, “The Sex Bureaucracy” is cited for a proposition about the “severe, pervasive, and objectively offensive” standard, but that article did not mention that standard. I am a clear supporter of the “severe or pervasive” standard.
In “The Sex Bureaucracy,” I was mostly trying to give an accurate description of the legal regime that had developed. Lots of people were experiencing confusion about campus discipline and sexual assault. So the goal was really to just, in a comprehensive way, shed light on what the legal regime was.
Maybe there were some prescriptive or normative suggestions, but that really wasn’t the biggest point. In writing the article we were aware that in just a few years since 2011 there had been all these developments at schools that made processes very unfair, often disastrously so. So we wanted to shed light on that, too. But there is no reason that you couldn’t have a fair sex bureaucracy — one that requires that all of the implementations at different schools would be held to a standard of fairness. That wouldn’t be any less bureaucratic.
In a response to the article, also published in the California Law Review, Deborah Brake says that you pit bureaucracy against freedom in a way that she thinks is theoretically unjustified. She also says that you neglect the sexual-equality justification for this new bureaucracy — that freedom without equality doesn’t really exist.
Of course there are lots of ways for people to be freer with bureaucracy than without. Obviously, it is desirable for bureaucracy to combat sexual assault or sex inequality. But many people would also like to have the freedom to engage in consensual sex. In the past few decades, we’ve come to accept that the government shouldn’t be able to tell you which consenting adult you may or may not have sex with, or what kind of consensual sex you may have. This is a space of freedom that our legal culture recognizes.
Anything that’s not consensual should not be in that realm of freedom.
So I was trying to unpack the key question of how bureaucracies were defining sexual consent and the procedures and consequences that would flow from the definitions. I do agree that I was talking about a kind of freedom. But that is a freedom I would argue everyone wants in a democratic and free society — the right of adults to have consensual sex with other adults. It is not the freedom to abuse, exploit, force, or coerce.
So to the extent that I’m said to be pitting bureaucracy against the free realm of consensual sex, I would only correct by saying, well, not bureaucracy per se — just how this bureaucracy has operated on that space of consensual sex. I stand by the point that our government and institutions, through bureaucracy or otherwise, should not constrain consensual and voluntary sexual activity.
I do not think that there is sex equality in our society, but even in its absence, I do think there is still such a thing as consensual sex, and that consensual sex should be a space of freedom. I don’t think sex equality must exist in order for us to believe that consensual sex is possible.
The ACLU is suing over some of DeVos’s proposed changes. What are they suing over? And do you think they’ll win?
The ACLU has shown a lot of integrity in this matter by being able to say that they agree with some parts of these regulations, in fact strongly support some parts, including some things that are very controversial, like cross-examination and the live hearing. They’ve been very clear since the regulations were issued that they applaud those and the basic requirements of fairness that they lay out.
But the parts that the ACLU doesn’t support are ones that I too have some reservations about. I too would prefer not to have a deliberate-indifference standard. I too would prefer that the sexual-harassment definition be broader than the one that the new regulations adopted. But where I might disagree with the ACLU’s lawsuit is the idea that these disagreements amount to legal defects.
It is possible that the ACLU will have a hard time prevailing in court, because its claim is that the agency violated the Administrative Procedure Act in how it chose to issue these regulations. So the ACLU suggests that DeVos should have given more explanations for certain choices. And it claims that some of the policy choices DeVos made are “arbitrary and capricious,” which is language from the Administrative Procedure Act. An agency action is invalid if it is arbitrary and capricious. And arbitrary and capricious can’t just mean “I disagree with it.” It would have to mean that it was irrational. They are going to have a difficult time, but, on the other hand, in litigation there may be other things that come out that I am not aware of or haven’t focused on.
The ACLU also claims that some aspects of the regulations are inconsistent with Title IX statute. It will be an uphill battle to win these claims.
I’ve seen the ACLU accused of hypocrisy for not having sued earlier, over the Obama-era Dear Colleague letter. Why didn’t it sue?
Let’s just take a couple of specific issues. Cross-examination. The ACLU supports the cross-examination requirement. It’s very controversial, and it took a lot for the ACLU to come out in favor of it even though it is very much in line with their traditional civil-liberties position. But it’s controversial because many victims’ rights groups think that cross-examination is something to be avoided. So for the ACLU there’s a tension, a classic tension that they’ve experienced for decades with certain feminist law reforms.
But the Dear Colleague letter never actually said the schools couldn’t allow cross-examination. It discouraged schools from allowing parties to directly cross-examine each other. That’s a very narrow thing: the two parties, respondent and complainant, cross-examining each other. That is also prohibited by the regulations that DeVos laid out.
Am I understanding you correctly to mean that on the subject of whether the two parties, complainant and respondent, can cross-examine one another, the DeVos revisions are in fact more stringent than the Dear Colleague letter’s, because the Dear Colleague letter merely discourages such an arrangement whereas the new guidelines prohibit it?
Yes, that’s right. There’s nothing inconsistent between what the Dear Colleague letter said and what the new regulations say on cross-examination. When you say, why didn’t the ACLU sue to get the government to allow cross-examination, well, what could they sue for, given that the government never prohibited it? And the same thing with the hearing — the Dear Colleague letter didn’t say hearings are not allowed, or even discouraged. And confusingly, the Dear Colleague letter did not claim to be legally binding, even while schools felt massively pressured by the government to comply with it.
So in other words, from the ACLU’s point of view, under the Dear Colleague letter, the proper target of litigation wouldn’t have been the administration but rather the individual colleges that might have been implementing unfair processes?
It’s hard for me to speak up for the ACLU in that regard, simply because I notice it did not bring lawsuits against schools. And there have been over 500 lawsuits brought against schools by students who were disciplined for sexual misconduct since 2011. The ACLU didn’t participate in any of them, didn’t file an amicus brief, didn’t speak out publicly in support of the accused students’ lawsuits to vindicate fair process.
This has to be understood in the context of how hard it is for organizations to balance the different interests of the various groups that they support. On the one hand, the ACLU might be traditionally and classically associated with protecting individual rights against oppression by either government entities or by employers, and on the other hand, it is interested in the rights of vulnerable people, including women and sexual minorities. So it really is a story about that internal conflict. When you as a person or an organization have that internal conflict, sometimes it might look like you’re hypocritical.
Let’s talk about cost. Although initially people thought the new revisions would be cheaper for universities, you argue that in fact they will end up being more expensive. What does this mean for accused students and for victims at colleges that are less well-heeled than, let’s say, Harvard?
It’s a problem. Because fair process is expensive. It’s much less expensive to do it unfairly — to either side. So it’s a problem. I do not have the answer. The department kind of throws up their hands, in my opinion, and said we don’t think it will be too bad. But at a time when certain schools on a day-to-day basis are wondering if they’re going to survive, it does feel a bit unfortunate that now they have to take on a lot of costs to come into compliance with these regulations.
I want to return to a question I started with about rhetoric and reality. You used the word “polarization.” Do you see any way to repair the polarized battle that Title IX has occasioned?
There’s that general issue of the polarization, which is not just about Title IX but is about every issue of importance, and some issues of not very much importance. Then there’s the separate issue of Title IX.
On the first, do I see any way? Unfortunately I don’t. The only thing I can hope for is that if there is a change of administration, people will get out of what I think of as a collective trance. I have felt it also — I’m sure I have participated in it. We’re in this collective trance that causes us to not think very well sometimes. To be very reflexive, quick to dismiss, because so much of what is going on with our government is so awful, and truly merits alarm.
On Title IX: Yes, there are some reactions that seem to embody that big gap between rhetoric and reality. But over all, the reaction has been somewhat muted, compared with what one might have expected. Now that could be because there’s so much else going on in the world, but I also think it’s because these are real regulations — these are serious regulations. And they’re a mixed bag like many regulations, and in any regulatory situation you have interest groups, sides battling it out. But over all, because the agency made an effort to incorporate many things that it initially was not taking to heart, the end result is not going to really sustain a huge amount of outrage.
It seems to me that in the Trump era, there’s a new appetite for reading the public writing of law professors — like they’re having a moment. Does that seem true to you?
It’s a lot like the public-health experts in this Covid crisis. A lot of expertise and explanation and education of the public by those professionals has become extremely welcome and necessary. And similarly, during the Trump presidency there have been a lot of legal crises, which we either didn’t previously have or didn’t previously have to think of as truly threatening to our legal fabric. So because of that, whatever area you’re in — whether it’s criminal or constitutional law, or torts, or regulatory or environmental — all of those areas have become important during this presidency. Including sexual assault and sexual harassment, because of what this president has been accused of. So it’s an extension of our educational function.
This interview has been edited for length and clarity.