New Title IX Proposal Would Restore Fairness in Sexual-Misconduct Cases

Thank God for Betsy DeVos.

With the release on Friday of the proposed new rules for adjudicating campus sexual-misconduct cases, the education secretary has taken an important step toward restoring common sense and sanity in how these cases are handled.

My firm has represented more than 100 students and professors at more than 80 institutions across the country — from world-famous academics at major institutions to anonymous 18-year-olds at tiny religious colleges. Mostly, we represent the accused, male and female alike, because they tend to need lawyers more than the accusers do. (Plus, a host of nonprofits are eager to represent people who call themselves victims; not so if someone has called you a rapist.) But we’ve also represented accusers, and we fight just as hard for them as we do for the accused.

So we have seen both sides of this issue. And I can say, without qualification, that these rules would be a significant step forward for both sides.

First, the accusers: In our experience, they don’t always want to punish the accused. That’s because only a small number of these cases that we’ve seen involve allegations of force or even the use of the word “no.” Rather, the vast majority involve people who drank alcohol, used bad judgment, and wound up with deeply conflicted feelings about the whole experience — feelings that are too often exploited by Title IX offices with a prosecutorial mind-set and a tenuous grasp of how human sexuality is practiced in the real world.

The Obama administration gave accusers essentially two options — do nothing, or commit to the total Title IX process. Alternative forms of resolution were falsely equated with sweeping sexual assault under the rug.

The new proposed rules would, fortunately, change this. And in so doing, they would return agency to the accuser. Mediation and restorative justice would be on equal footing with a full-blown Title IX investigation. Accusers could choose which form of resolution would most help them. Colleges would not be allowed to force these alternatives on students; rather, colleges would give them a choice. Colleges would listen to them, not just dictate to them.

The proposed rules also stress how important it is that colleges provide supportive measures to the accuser. Indeed, they encourage institutions to give such support even when no formal complaint is filed. I have little doubt that colleges will embrace the opportunity to do this.

The news for the accused is also heartening. First, the new rules would require colleges to permit cross-examination by a party’s adviser — not the parties themselves — in disciplinary hearings. Some are outraged at this, arguing that any such questioning would “retraumatize” accusers. But in a system that places the burden of proof on an accuser — which is how we do things in America — there’s no way around that.

If you accuse someone of a terrible thing, he or she should have the right to question you, effectively, about that. And having a trained adviser, like a lawyer, question an accuser is far better than either not allowing questioning or allowing two young and freaked-out college students to question each other.

The concern that aggressive defense lawyers will bully accusers is exaggerated. Alienating the jury — which is what bullying would do — never ends well. So I suspect that advisers, be they lawyers or otherwise, will be careful to strike the appropriate balance between skepticism and respect.

To be sure, this will be hard on accusers — but it should be. That is how a system that presumes innocence is supposed to work. It’s called an evidentiary burden for a reason — it’s heavy, and sometimes it’s hard to carry.

The second hugely significant change is the requirement that colleges hold live hearings on sexual-misconduct allegations. Such a change would do away with what I, as a lifelong Les Miserables fan, have previously called “the Javert model,” in which a single investigator acts as judge, jury, and executioner. Seeing how people respond to questions they’re asked on the spot in front of other people, not one on one, behind closed doors, often leads to the truth — as I suspect anyone who’s ever sat through a contentious faculty meeting can attest.

Some of the proposed changes would make less of a difference, except on rare occasions. For example, the new rules would allow colleges to choose between the lower “preponderance of the evidence” standard or the higher “clear and convincing evidence” standard when deciding sexual-misconduct cases. I suspect few institutions would choose the higher burden, because the political backlash would be overwhelming.

Still, that choice could present interesting challenges for institutions like the University of Virginia, which uses the highest standard in the law — “beyond a reasonable doubt” — to adjudicate cases under its vaunted honor code. That’s because the new rules would also require colleges to use the same standard for all conduct violations that carry the same sanction.

In other words, if sexual assault and cheating can both get you expelled, the college has to use the same evidentiary standard for each of them. It will be interesting to see if the University of Virginia decides to lower the burden of proof in honor-code cases to “preponderance of the evidence,” and thus severely undermine its legitimacy, in order to placate campus Title IX activists.

To be sure, no system designed or run by human beings is perfect. The Obama administration put its thumb entirely on the accusers’ side of the scale, because they were more interested in fighting a culture war than being fair. (“Due process matters” is a decidedly less catchy rallying cry than “start by believing.”)

The new proposed rules, by contrast, may be the most balanced thing I have seen come out of the Trump administration, and Secretary DeVos should be applauded for her courage. If put in place, the rules will finally begin to restore sanity to a process that too often shortchanges both sides of a difficult issue.

Justin Dillon is a partner at KaiserDillon PLLC, in Washington.