What’s Good, and Less So, in New Title IX Guidance

Under President Obama, the Education Department crusaded against due process on campus in sexual-misconduct cases. That’s over. New rules will be written, the department says, to do justice for both accusers and those they accuse. And the department’s “current expectations” under Title IX for how schools respond to sexual-misconduct charges, set out in guidance announced today, command fairness and permit justice — at least in certain respects.

On the headline issue of the standard of proof, Secretary Betsy DeVos’s changes don’t go far enough. But on some other issues, there’s better news.

Secretary DeVos. Photo courtesy U.S. Department of Education.

Under President Obama, the department told schools that sexual-misconduct charges had to be judged by the preponderance of the evidence — that is, if it was even slightly more likely that the accused was guilty than that he wasn’t, he had to be found guilty. Now, schools have the option of requiring clear and convincing evidence. That’s still less than the standard of proof beyond a reasonable doubt used in criminal court (and at at least one school, for all charges against students except sexual-misconduct charges), but it’s a lot better than the preponderance standard.

And it’s now permissible for a college to let an accused student appeal a verdict against him without letting the accuser appeal too. In other words, colleges don’t have to allow students who’ve been found innocent to be put on trial again.

But both of those changes, which allow colleges to implement principles of justice cherished by our constitutional tradition, are optional. Colleges are, at least for now, also allowed to retain the preponderance standard and the right of an accuser to appeal — even if they only adopted those policies because the federal government said they had to. And it’s likely that many of them will retain these policies, not only because of a cultural movement in favor of rape accusers, but because keeping policies is simpler than changing them.

The value of letting universities make their own, varied decisions, of course, weighs in favor of giving them these options. But if universities simply leave in place the policies they have now, they may be keeping rules that are more the result of the Obama Administration’s commands than of any deliberative process in their own academic communities. So the policies may neither reflect distinctive institutional values nor, by differing from school to school, provide students significant options.

The best thing in the new guidance may be what it says about “interim measures” — and this is not optional. Under the old rules, colleges were required to take action to protect accusers even before they had determined whether the accused was guilty. And when taking action to separate the accuser from the accused, they were required to “minimize the burden on the complainant.” Now, while schools may still take such interim measures, they are forbidden “to rely on fixed rules or operating assumptions that favor one party over another.” In other words, the old rules encouraged schools to impose all the burdens of separating the parties on the accused; the new guidance encourages treating the parties evenhandedly.

That’s as it should be. If the charge is true, the accused has committed a horrible wrong against the victim, who shouldn’t have to be near him (or her), except for hearings. If it’s a lie, the accuser has committed a horrible wrong against the accused, who shouldn’t have to be near her (or him), with the same exception. And if it’s neither — as sometimes happens — one or both of them may be innocent, yet find the other’s presence very uncomfortable. So keeping the parties apart, if either of them asks, is reasonable. But putting all the burdens on the accused by default, just because he’s the accused, is treating him as presumptively guilty. Putting the burdens entirely on the accuser, of course, would treat her as a presumptive liar. Using a neutral principle implies nothing about who, if anyone, has wronged whom.

Much of the criticism of the old rules relates to what happened at hearings. But the old rules didn’t require hearings, and neither does the new guidance. That’s too bad: Hearings are useful for finding truth, because they create a venue where both sides, if permitted, can question each witness. (The old rules discouraged allowing the parties to cross-examine each other.) They’re also useful for demonstrating to both parties that they have been, quite literally, heard.

The new guidance requires universities to allow both accusers and accused students to bring the advisers of their choice — even lawyers — to hearings, if there are hearings.

I hope the new permanent rules will be better. But the interim guidance is a good start.