The new Title IX rule raises concerns for defendants

The long-awaited proposals for a new Title IX regulation under the Biden administration were published last week for mixed reactions. The proposals include a change in the way colleges investigate sexual harassment, which has raised concerns and condemnation of civil liberties advocates.

Some critics believe that changing the process of investigating sexual harassment would restore the right to a fair process for defendants, returning higher education to an environment that was in favor of defendants’ rights, which has led to a storm of lawsuits from convicted offenders in recent years.

Proponents of the changes argue that Biden’s Title IX regulations violate rules established by the Trump administration that have silenced defendants and made victims less likely to come forward.

Arguments for and against

The proposed changes to the Biden administration will eliminate mandatory live hearings in Title IX cases – unless required by state law – to provide defendants for cross-examination, allowing them to return to a single-investigator model, reducing the evidence a college has to share. By A written summary of the accused and allowing colleges to investigate sexual misconduct without formal complaint.

These changes revert to a number of regulations established under former Education Secretary Betsy Davos during the Trump administration that emphasize appropriate procedures for defendants. Opponents of the Davos regulation have welcomed the changes, although most of the response has fallen on party lines, with Democrats celebrating and Republicans envying.

Richard Burr, a Republican senator from North Carolina and a ranking member of the Senate Committee on Health, Education, Labor and Pensions, issued a press release calling Biden’s rules deeply flawed, arguing that they were one step behind and undermining the judiciary.

“Not only are these attempts at torture extremely disturbing, but they go against the precedents of federal courts and the views of top legal experts, including the late Justice. [Ruth Bader] Ginsberg. With this proposed regulatory change, it is clear that the administration is placing allegations of guilt over fair consideration of evidence, ”Burr said last week.

Patty Murray, a Democratic senator from Washington who chairs the Help Committee, went in the opposite direction, backing the proposals last week. Celebration tweets: “Above #TitleIX Anniversary, I can’t think of a more appropriate tribute today than Biden Admin that they would replace the Trump-Davos rule that silenced survivors and brushed off sexual harassment on campus. The new rules will help make the campus safer. ”

Some senior ed observers, such as Casey Johnson, a professor of history at Brooklyn College and CUNY Graduate Center, have warned that the proposed changes, which would be a return to the Obama-era rule, would lead to a “Title IX search,” a system check and balance lack and appropriateness. Limits the process and therefore systemic fairness.

Johnson, who tracks lawsuits filed by students accused of sexual misconduct, said in an email that the new regulations “originally represent a return to the 2013-2016 system but in a dramatically different legal environment.” No matter, as there is now with Davos registration, there will be a wild disparity between public and private schools and it will depend on which judicial circuit. There must be a school. “

Basically, this means that precedents set by the court can shape different rules and outcomes based on where the colleges are geographically located.

He added that colleges could maintain existing procedures – including live hearings and more access to evidence for defendants – if they choose to, as the new regulations do not prohibit it, he hopes a few institutions will.

Alexandra Brodsky, staff attorney at the nonprofit legal advocacy firm Public Justice, has celebrated the proposed rules, which she sees as a victory for survivors of sexual misconduct.

Brodsky eased concerns about the appropriate process for defendants, arguing that the changes would allow colleges to choose the disciplinary model they deem most appropriate, rather than imposing a quasi-judicial model on them that he believes undermines victims’ rights.

“One thing I will note [the] The process is that the proposed regulations allow schools to choose from a variety of disciplinary models, including one required by current Davos regulations, ”Brodsky said via email. “This is a return to pre-Trump stagnation on both the Democratic and Republican administrations, and the status of the School Discipline Act for all other forms of misconduct: courts and federal agencies have long allowed school prudence to be disciplined, unless they respect certain fundamental rights, and Previously refused to impose one-size-fits-all models.If an orderly student or faculty member believes that a school’s disciplinary policies – whether for harassment or any other form of misconduct – do not comply with due process or basic fairness requirements , That investigation is not related to the obligations of schools under the U.S. Constitution and state law, Title IX. “

Striking a balance

Other observers believe that the Department of Education has struck a balance between survival and the rights of defendants. They maintain that while the proposed regulations are not perfect, they are more justified than a letter from the Obama administration’s 2011 favorite colleague – who has been blamed by some for the rise in Controversy Title IX cases by defendants – and the Trump administration’s 2020 rules, which critics say victims of sexual misconduct. Less likely to complain.

“I think many of the criticisms of the 2020 regulations are based on the fact that they were unbalanced in defending the rights and compromised the rights of the plaintiffs for the benefit of the respondents. I think, in a sense, the 2011 letter from a dear colleague did just the opposite, “said Brett Sokolo, president of the Association of Title IX Administrators. “So the question was whether the Biden administration’s efforts were going to take us back to a more complaints-centric process, or were we going to strike a better balance between the two? I am pleasantly surprised that I think they have achieved a more balanced approach than I expected. I don’t know if it’s an ideal balance, and I think there are certainly ways to improve it, but it’s not a one-sided process. It’s very balanced and I think it’s a sign of the times and the Department of Education is not ignoring the rights of all participants in this process. “

The duration of a 60-day comment will follow the Department of Education’s June 23 proposed rule-making notice, which came on the 50th anniversary of the enactment of Title IX federal law. The Biden administration summarized the proposed changes in a fact sheet published last week.

Sokolo believes that as the Biden administration gathers feedback on the proposed rules, some aspects of the regulations will likely be moved, meaning that what is being proposed now is not final.

Expensive reverse title IX case

Critics of the 2011 Obama administration’s directive suggest that the over-application of sexual misconduct issues on campus led to false accusations and unfair punishment. Davos withdrew the letter from a dear colleague in 2017, but defendants have reportedly filed more than 700 lawsuits.

“Before the Dear Fellow letter, there were virtually none of these cases,” Johnson said.

Often universities settle with plaintiffs behind closed doors instead of proceeding with costly and messy court cases.

Johnson said, “Universities are settling on increasing frequencies before deciding cases because they can basically read tea leaves. “Or they will try to dismiss the case; If they fail, they will settle. In almost all cases, with a few exceptions, the students’ main demand was a removal of the record সক্ষম able to say for them, ‘I have not been held responsible for sexual misconduct.’ Because if you are responsible, the chances of moving to another school are limited, or it will lead to a job that requires a background check and limited career options. “

Johnson believes there is little pressure, internally or externally, to provide appropriate procedures for defendants, which is why he welcomes the Davos regulations and is wary of Biden.

Brodsky, however, pushes the Davos regulations to one-size-fits-all disciplinary models in colleges and believes that many of the cases brought by the defendants are questionable cases.

“I don’t think they’re succeeding because they’re actually talented. I think they are succeeding because the court is unusually sympathetic to them. I think they are succeeding because they have tapped into a cultural narrative that the Me Too movement has gone too far and the real victims of sexual harassment are falsely accused men, which I don’t think is clearly true. But I think you see that instinct at the heart of a lot of opinions in this case, ”Brodsky said.

But will Biden’s proposed changes usher in a new era of reverse Title IX cases, where defendants claim to have been wronged in the investigation process? Sokolo is skeptical.

“I think the regulations are cleverly pushed back to the court. It says that we are going to establish a floor, a baseline of systemic protections, and then based on your jurisdiction, based on state law, based on federal court rulings, you will want to increase your systemic protection level accordingly, ”Sokolo said.

Sokolo suggested that in the event of a change in the appropriate process under the proposed regulations, specific rules, states would act on their own, incorporating protections into law.

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