A first look at the new campus harassment hearing regulations

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Three years ago in this space, I decried due process deficiencies in the way colleges and universities generally handle allegations of student-on-student sexual harassment and assault. No one is in favor of sexual violence, but due process matters, too, and right now it tends to be dangerously inadequate.

Pre-hearing discovery of evidence is often forbidden. Often the accused cannot confront or cross-examine the accuser. Academic tribunals are generally comprised of teachers and/or students without legal credentials, in a setting where proper application of legal rules is critical. Because lawyers are generally barred from advocating on behalf of either an accuser or an accused, there may be no properly trained voice in the room when legal questions arise.

I also was concerned at the Obama administration’s directive, in a 2011 “Dear Colleague” letter signed by Russlyn Ali, assistant secretary for civil rights in the U.S. Department of Education, on how federally funded educational institutions generally should handle allegations of sexual harassment or assault. The letter exacerbated these problems by prescribing an inadequate standard of proof and mandating pre-hearing treatment of the accused that basically presupposed his guilt. It also specifically approved of denying the accused the right to cross-examine an accuser because it “may be traumatic or intimidating,” never mind that it may also deprive the dishonestly accused of the only path to showing the tribunal that the accuser is lying.

While I am not a fan of Betsy DeVos, the current secretary of education, I did applaud her decision a year ago to rescind the letter. At the time, DeVos stated the department would, in due course, issue new regulations. The New York Times has now seen those regulations in draft form, and its early report on them is mostly encouraging. Though they do not always require it, the reported new rules at least enable a better balance between the interests of the accuser and the accused.

There has been controversy, for instance, over when a complaint first triggers the institution’s obligation to investigate and respond. Bush and Obama administration rules in effect deputized all staff to receive complaints and held institutions responsible to investigate and remediate as soon as a complaint was received, no matter who received it. The Times reports  the new regulations consider the responsibility to be triggered only by a complaint “to ‘an official who has the authority to institute corrective measures,’ not, for instance, a residential advisor in a dormitory.” This makes sense. A complainant may wish to have her circumstances known to a dorm advisor but not to escalate the matter to investigation or hearing. Both the accused and the institution likewise benefit when the process is unambiguously initiated or not. (The Times noted schools have complained earlier departmental guidance had “held them accountable for allegations of which they were not aware.”)

Burden of proof

The most important development is the change in requirements concerning the burden of proof. I was hardly alone in criticizing the Obama administration’s approach on this. The letter said that “in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard” rather than the clear-and-convincing standard which is commonly used in cases where important liberty rights are in the balance. Here, the accuser has a liberty interest in continuing her education at an institution that enjoys federal support and not being driven out by trauma.

But the accused, who may be expelled, also has that interest, plus a liberty interest in avoiding unwarranted and serious reputational damage (likely to be an impediment to obtaining any professional license, for example). There is not a comparable level of stigma for the accuser if the complaint is not sustained.

The jeopardy to the accused’s liberty interests is high, even before taking into account the other problems I have mentioned, all of which increase the risk of erroneous adjudication. Given all these hazards, the accused should be protected by the more demanding clear-and-convincing standard of proof.

The Trump administration regulations are reported to allow but not require schools to choose the clear-and-convincing standard. One can only hope that, particularly at schools which increase the risk of erroneous findings of guilt via the mentioned procedural shortcomings, there will be an embrace of that standard.

The Obama administration also sanctioned pre-hearing treatment of the accused as if he were guilty, for instance moving the alleged perpetrator (presumably involuntarily) to a different residence hall and arranging for the complainant (but not the accused) to retake a course or withdraw from a class without penalty. This differential treatment, not likely to escape the notice of student colleagues and faculty, would be stigmatizing to the accused – and there was no suggestion of any affirmative actions the institution might take to remove the stigma should be accused by exonerated. The reporting on the new rules is somewhat unclear on the point in the proceedings at which the accused might be barred from campus but conveys this would only occur after “a safety and risk assessment.”

While the Times reporting does not make it clear what has become of the abhorrence of cross-examination, it is to be hoped that fairness to the accused returns to this area once the new regulation is in place.

Location question

One reported aspect of the new regulations is discouraging. The Obama administration placed schools under the obligation to respond to allegations of student-on-student harassment or abuse no matter where it allegedly occurred. The Trump administration reportedly would “hold schools responsible only for investigating episodes reported to have taken place within their own programs, or on their campuses, not, for instance, in off-campus parties.” The former administration got this right, particularly in view of the legal roots of the entitlement of the federal government to intervene, namely Title IX’s requirement to make federally-assisted education available equally to all.

If the focus is on availability, anything that interferes with that availability should come within the scope of the regulation regardless where that interference occurs. When harassment by fellow-students can and no doubt does happen with, for instance, the receipt of a text when the victim reading it is halfway across the country, the geographic limits of a campus have no relevance.

Because we have not yet seen the text of the regulations, and the regulations have yet to go through notice-and-comment, this is only a nascent story. But it is mostly encouraging so far.

Jack L.B. Gohn is partner emeritus with Gohn Hankey & Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.