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The president’s distrust of the new regulations is understandable. They were initiated by an acting head of the Department of Education’s Office for Civil Rights who dismissed 90 percent of rape allegations as next-morning-regret, and enacted under a secretary of education who put her own religious views over the best interests of students — all this during the presidency of a man who bragged about committing sexual assault. Still, as the Biden administration begins the process of revising the new regulations, it must not let prejudice, or a lack of concern for the accused, cloud its judgment. Regardless of their source, the new regulations are still a tremendous improvement over what existed before.
Among other advances, the new regulations recognize quid pro quo and Clery Act/Violence Against Women Act offenses as discrimination. That means a college employee conditioning an aid, benefit, or service on an individual’s unwelcome sexual conduct or “a single instance of sexual assault, dating violence, domestic violence, or stalking” constitutes sexual harassment. There’s no longer a need to prove additional harm.
The new procedural protections also rectify the due-process wasteland that existed in the wake of the 2011 "Dear Colleague” letter. Requiring colleges to fully investigate both sides and provide a written investigation report in advance of a hearing means students will not be forced to defend themselves against secret allegations, as Francisco Sousa did at San Diego State University in 2014. Insisting that the decision maker be impartial is the bare minimum for a fair hearing, but it wasn’t accorded to John Doe at Purdue University in 2016. Mandating that hearings have live testimony and witness questioning means both complainants and respondents can have their sides fully heard — something that Brandeis University denied a different John Doe in 2014. Should President Biden be tempted to reject these changes out of hand, he should remember that many of the new procedural regulations are based on detailed consensus recommendations from a diverse American Bar Association criminal-justice section task force, which included prominent advocates for the accused and victim/survivors.
As good as some of the regulations are, others are deeply problematic. They significantly narrow what counts as actionable conduct, and they make it easier for colleges to get away with doing nothing in response. Here are some recommendations for how to reform existing regulations:
Beef Up Protections Against Online Harassment
Although the new rule covers online harassment, it does not do so prominently or explicitly. Making matters worse, the Department of Education has a narrow definition of when online harassment would fall within a college’s program or activity. The college must have both substantial control over the respondent and the context in which it occurs, which may even exclude online harassment during class time.
Sexual harassment in cyberspace is a serious enough problem that it should be prominently and clearly discussed in the new rule. “Online harassment,” the law professor Mary Anne Franks explained in a 2012 article in the Maryland Law Review, “has various and wide-ranging harms: Targets have committed suicide, lost jobs, dropped out of school, withdrawn from social activities, and decreased their participation in employment, educational, and recreational (including online) activities.” Colleges and students should not have to read the fine print to figure out that online sexual harassment is verboten.
The Education Department should both broaden and clarify what kinds of online harassment falls under Title IX, and it should expressly state that online sexual harassment violates Title IX.
Introduce Special Rules for Complainant’s Prior Sexual History
Evidence of a complainant’s sexual history is sometimes essential for a fair hearing. For example, it might be used to prove that someone other than the accused was the source of semen, injury, or other physical evidence. Alternatively, it might be important for showing that the sexual activity was consensual. Because of the sensitivity of this evidence, however, colleges should create a special protocol for its admissibility, modeled on Federal Rule of Evidence Section 412. (The Federal Rules of Evidence govern the introduction of evidence in U.S. federal courts. Most states have closely modeled their evidence codes on the FRE.) First, the respondent should have to provide notice that he or she is intending to introduce this evidence. Second, if the complainant objects, there should be a hearing in advance of the formal adjudicatory hearing in which a hearing chairperson (but preferably not a decision maker) determines whether the evidence should be admitted. At that prehearing, both parties should have the chance to speak.
Fine-Tune Admissibility of Witness and Party Statements
The new regulations do not require parties to submit to questioning, but if they don’t, their previous statements cannot be considered. Before this rule change, colleges allowed a person to be found responsible without ever having the chance to challenge his or her accuser. The change is consistent with the recommendations of the ABA task force, and it is modeled on the constitutional rights afforded to criminal defendants and on restrictions under the Federal Rules of Evidence.
As currently written, however, the ban goes too far. The point is to prevent a self-serving statement from being admitted without the other side getting a chance to challenge it. Thus, the regulations should be used only to exclude exculpatory statements by the accused (“I didn’t do it”) but not confessions (“I did it”). Similarly, the ban should be used only to bar accusatory statements by the complainant (“He did it”) as opposed to recantations (“He didn’t do it”). Accusatory statements by witnesses should not be admitted unless the witness answers cross-examination or other questions.
The new regulations aren’t perfect, but the solution isn’t going back to the injustice of the 2011 “Dear Colleague” letter, as Biden has vowed to do. That would mean disregarding the rights and vulnerabilities of accused students. And it wrongly assumes that victims/survivors won’t benefit from having robust procedures. On the contrary, robust procedures are especially important when the accused is, for instance, a star athlete or a popular professor. In such situations, colleges might be reluctant to fully investigate accusations or allow the victim/survivor to introduce and challenge evidence. Existing Title IX regulations can and should be improved, but not at the expense of due process or the other significant improvements made by the last administration.
