From an entirely different perspective, they were hailed by a spokesman for the Foundation for Individual Rights in Education as “going a long way toward establishing meaningful due process” on campuses.
We are lawyers who have represented scores of students and professors accused of sexual misconduct by their schools. We have also represented students who have been sexually assaulted on campuses. We agree that due process on campuses is in shambles. But we don’t think the new reforms go far enough in ensuring that campus judicial hearings are fair to the accused.
The new rules are better in some areas than others. The most significant changes for students and professors appear to do with how the Department of Education would require evidence to be gathered and presented during hearings on campuses. But the new rules won’t change how that evidence should be weighed — which is the crux of much of what is unfair to those accused on campus.
According to the Times, the proposed rules would allow the parties in the Title IX proceeding to cross-examine each other and get other kinds of evidence from each other during the investigation process. These could be substantial and very good changes.
Allowing for meaningful but respectful cross-examination will dramatically increase the fairness of these proceedings. In our experience, accusers are too often given a pass on the parts of their allegations that do not bear scrutiny. Time and again, we have submitted proposed questions for adjudicators to ask accusers, only to see the questions tossed aside or watered down so much that they become meaningless. Allowing students to question each other directly will do a much better job of getting at the truth than most schools do.
In one case we handled, the complaining witness said that she was too drunk to consent to sex even though, at the time, she indicated she wanted to have sex. When our client proposed asking the woman how much she had had to drink, to test her assertion that she was effectively incapacitated by drink — as opposed to, as he contended, intoxicated but sober enough to meaningfully say yes to sex — that question was not allowed. No explanation was given as to why this question was impermissible. The panel relied solely on her description of her subjective experience of her level of intoxication. The accused student was found responsible and expelled.
Another improvement in the new draft rules is allowing the parties to require each other to hand over evidence. In today's digital world, many of these cases are won and lost when adjudicators scrutinize text messages and other electronic communications between and among students. Students may pick and choose which text messages to give to the school or present at a hearing, and schools routinely say that they can’t make students produce any evidence they don’t want to produce.
Our firm represented a man who was in a postgraduate professional school. He had a years-long relationship with a fellow student. After they broke up, he deleted all of their text messages. Then he found out that she had filed a sexual assault complaint against him based on three times (out of many others) they had sex. We asked the school to force her to give administrators relevant texts she had in her possession but were told the school couldn’t make her hand them over.
We were lucky. Our client was in the military, and his ex-girlfriend had also filed a complaint there, and the military required her to hand over her text messages as a part of its investigation. We were able to get those texts through a Freedom of Information Act request. They showed that hours after each alleged sexual assault, she texted, in very explicit terms, that she enjoyed the encounters.
Had we not been able to get those text messages, there is little doubt that our client would have been expelled.
That is the good news about the changes the Education Department is considering. The bad news is that the standard of proof will not change. The Obama administration required schools to use a “preponderance of the evidence” standard, which some lawyers describe as “50 percent plus a feather.” Before the Obama administration’s changes, the vast majority of schools used a higher standard of “clear and convincing evidence.” “Preponderance” is the standard used by courts in auto accident cases. And, indeed, if you’re going to decide which insurance company pays to fix a fender, that seems like a fine standard.
If the goal of your policy is to get more convictions, it’s fine, too. But if you want a fair process — one whose outcome could decide someone’s educational or occupational future, and whether they will forever be branded a rapist — it’s woefully inadequate.
One odd quirk of the Obama-era guidance was that it mandated the lower standard of proof only in sexual assault cases, not in other college discipline matters. As a result, it was, at least in theory, easier for a campus judicial body to find that someone was guilty of rape than that he violated the school’s open-container rules by walking outside carrying a beer.
The proposed regulations would let schools choose between that low standard and the higher “clear and convincing evidence” standard schools used before the Obama administration weakened the protections for those accused on campus. (“Clear and convincing” falls somewhere between preponderance and the familiar “beyond a reasonable doubt” test we all know from criminal cases). A move to “clear and convincing evidence” would force adjudicators to do more than essentially flip a coin, which is essentially what too many of them do.
In light of the cultural and political climate on campus, particularly in the aftermath of #MeToo, giving schools the option to choose among evidentiary standards is a meaningless gesture: Schools will always choose the lower standard, lest they be branded safe havens for rapists.
For that reason, it’s disappointing that these regulations don’t propose to require the higher standard for these life-altering cases.
To be sure, suffering a sexual assault is a serious and life-altering tragedy. But so, too, is being falsely found to have committed sexual assault. An appropriate system for resolving sexual assault will protect both those who have been assaulted and those who are wrongfully accused.
There is much more that should be changed in how schools resolve these cases. It’s unclear from recent reporting whether the new rules say anything on this subject, but we hope that the proposed or final rules will also have something about how people who investigate and sit in judgment in such cases should be trained. If the people deciding these cases are falsely told — as some in our cases have been — that more than 90 percent of sexual assault allegations are true, that can’t help but skew the proceedings against the defendant.
Add the “50 percent plus a feather” standard to that statistic, and you’ve got yourself an Easy-Bake Oven of convictions. The new regulations do require that schools presume the accused is innocent until proved guilty — a fine sentiment. But if the training materials aren’t changed, we will surely see litigation about whether that presumption is consistent with the training materials at many schools.
The system of adjudicating sexual assault cases needs to change. About that, the critics of the Obama rules are right. The new Education Department rules are good — necessary, even — but don’t go far enough. It's our hope that the administration will, in the end, go further than these early leaked drafts suggest.
We hope the final regulations will have sufficient teeth to protect the due process rights of every student and professor accused on campus.