United States Supreme Court, October 1, 2003 (Photo/AstroNomer) (Wikimedia Commons)
On June 23, the U.S. Department of Education (DoE) issued a proposed rule that would dramatically revise the current regulations addressing sexual harassment and sexual assault. This is the last of a two-part series to discuss the proposal and explain its potential impact on Cornell and its students. Whereas the prior piece explored free speech concerns, this part will discuss the lack of due process.
In general, Title IX prevents discrimination on the basis of sex. DoE conditions federal funds to colleges upon their compliance with certain rules, which the Biden Administration is now proposing to amend. Under Title IX, the DoE can prohibit Cornell from engaging in sexual harrassment, but cannot directly regulate the conduct of students. So, student–on-student harassment is beyond its authority. However, the DoE believes that it can hold Cornell responsible for the collective actions of its students if the combined impact is to create a “hostile environment” that deprives another student of educational opportunities based on sex.
So, DoE in proposed Section 106.46 sets a required procedure for processing alleged instances of sexual discrimination including a hostle environment or sexual assualt. These procedures are a watered down version of the due process requirements in the current rule. First, except for certain “confidential employees” such as counselors or doctors, most Cornell employees must report suspected sexual assault or harassment to the Title IX Coordinator. Said coordinator must keep and publish statistics measuring how widespread the problem is among Cornell students and staff. Second, the Title IX Coordinator must follow up with all complaints and investigate them.
Even before the process is completed and an accused student is found guilty, the Title IX staff can order interim measures. Typically, this involves an order that the parties do not contact each other. In many cases, the Title IX office will suspend one of the students involved (typically the male student) from Cornell pending the outcome of his hearing or order him removed from the dorm if both parties live in the same dorm.
The hearing process rolls back a number of advances from the 2020 rule by:
- eliminating students’ right to a live hearing;
- eliminating the right to cross-examination;
- weakening students’ right to active legal representation;
- allowing a single campus staff member to serve as both judge and jury;
- eliminating the requirement of a signed formal written complaint to start a case;
- allowing Cornell to combine related cases, even if it will result in prejudice against one or more accused students.
- Allowing third parties to file complaints even if the putative victim chooses not to. Hence, anyone who alleges having knowledge of sexual impropriety can make an accusation that the college must investigate.
- requiring colleges to use the weak “preponderance of the evidence” standard to determine guilt, unless they use a “clear and convincing evidence” standard in other comparable proceedings. At Cornell, the “preponderance of the evidence” standard is used for accused organizations but “clear and convincing evidence” is used for individual misconduct.
The proposed rule would also preempt state and local laws. Inconsistent laws would be given effect if they provide greater protection against sex discrimination, but would not apply if they give students greater protection against accusations of misconduct. NYS Education Law Section 6443 provides all college students with a “Bill of Rights” that guarantees, “Make a decision about whether or not to disclose a crime or violation and participate in the judicial or conduct process and/or criminal justice process free from pressure by the institution” and “ Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard.” The proposed rule may be too vague to be the basis for voiding these guaranteed rights.
For five decades, Cornell allowed its elected representatives in the University Assembly to decide what is a fair process, but the new 106.46 process in the proposed rule is mandatory even if a campus believes more fairness is required. So, the rule establishes the maximum fairness allowed rather than a minimum. One element of fairness is to know in advance what conduct is permitted and what misconduct is proscribed. The proposed rule basically says “it depends.” The proposed rule offers a long and vague definition of “hostile environment harassment”:
Unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment). Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following: (i) The degree to which the conduct Iaffected the complainant’s ability to access the recipient’s education program or activity; (ii) The type, frequency, and duration of the conduct; (iii) The parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the alleged unwelcome conduct; (iv) The location of the conduct, the context in which the conduct occurred, and the control the recipient has over the respondent; and (v) Other sex-based harassment in the recipient’s education program or activity.
In contrast to that word salad, the 2020 rule simply defines it as, “Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity;” The current definition is based on the Davis v. Monroe County Board of Ed Supreme Court case.
The proposed rules are not limited to on-campus activities and can even apply in a foreign country if the trip was college-sponsored. The key factor will be the impact on the complainant rather than the elements of the accused student’s conduct. So, if the subjective impact was so severe as to limit the complainant’s access to the college’s educational programs, then the accused student has violated the rules, even if he was just one of a hundred students engaging in that conduct. No clear tests are provided, and no safe harbors are established so that a student can speak and act freely without fear of a surprise Title IX complaint. The proposed rule dismisses case law including Davis. A valuable due process right is to have a determination reached by a jury of your peers. Under the proposed rule, instead of Cornell’s University Hearing Board and the University Review Board reaching a decision, fact finding is done by the Title IX staff, who face administrative pressures to rack up a high number of cases closed in favor of the complainant. Thus, under the proposed rule, the same employee of the Title IX Office would serve as prosecutor, judge, and jury.
Some women’s rights advocates following the #MeToo movement would argue that a woman alleging sexual misconduct should always be believed. Yet, both men and women can bring Title IX complaints. Consider a case where a male and a female student have an intimate encounter while drunk, and wake up the next morning with regrets. In such cases, both may file Title IX complaints in anticipation of the other party doing so as well. So, Cornell is effectively put into the position of determining what actually happened when neither person has a clear memory of the events.
The current Cornell policy has a one year time limit for filing complaints, but it is unclear whether that would be allowed under the proposed rule.
To the credit of the DoE, the proposed rule does not require that women must be believed over men. However, the presumption of innocence and the burden of proof is watered down compared to what is required in the courts downtown or to cases brought under the Student Code of Conduct.
The main purpose of a campus judicial system is to protect the accused student from the hassle and expense of a criminal proceeding and to provide more confidentiality. However, as proposed, the revised Title IX procedures do not offer any benefits. First, Cornell is under pressure to process and convict enough students to prevent it from being accused of maintaining a “hostile environment.” Second, the students are being accused of committing “crimes” that are not well-defined. Third, the proposed process is stacked against the accused student. Most of all, because the proposed rule does not align with the prevailing case law, even if Cornell does exactly what is asked of it by the DoE, private parties can still sue Cornell and hold it liable for damages.
The 2020 Final Rule tried to address those concerns, but the proposed rule, if adopted, will only make matters worse and place both Cornell and its students and employees in a no-win situation.
As a Second Circuit Court of Appeals judge noted a few weeks ago about Cornell’s handling of a Title IX case, the Obama era process is “one such example of the brutish overreach of university administrators at the expense of due process and simple fairness. His allegations, if corroborated, would reveal a grotesque miscarriage of justice at Cornell University.”
DoE has invited the public to comment on the proposed rule with comments due near the end of August.
UPDATE – On June 23, the Department of Education proposed changes to the rules that implement Title IX. Today, the proposed rule was published in the Federal Register. The Department will accept formal comments from the public through September 12, 2022. The team of lawyers at the Department will then read, summarize and respond to the comments before issuing a final rule.
