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Turning the Page on Title IX Fairness

While August is a sleepy month, July was anything butespecially on Title IX issues: Two more federal courts acted favorably on the new Title IX regulation which applies in campus sexual misconduct cases and which guarantees due process for those accused, as well as supportive measures for complainants; and the nomination of Catherine Lhamon, Biden’s controversial pick to oversee Title IX as head of the Education Department’s Office for Civil Rights (a post she held under President Obama) failed in the Senate Health, Education, Labor and Pensions Committee.

Both developments are huge victories for Title IX fairness and major setbacks for extremist feminists in higher education and elsewhere.

Title IX is the federal law banning sex discrimination at schools receiving federal funds but which is now used to address sexual misconduct. Lhamon weaponized this law when she was last in charge, enforcing a 2011 Dear Colleague Letter (DCL) that lowered the burden of proof to find fault and encouraged schools to presume guilt, withhold evidence, and suspend or expel students based on mere allegations. Trump Education Secretary Betsy DeVos began cleaning up this mess by withdrawing the DCL and promulgating the new rule, following the Administrative Procedures Act (“APA”) and obtaining public input instead of issuing “guidance” as her predecessors had done. The result is the new regulation, which requires schools to presume innocence, to disclose all evidence to parties and, at the post-secondary level, to hold live hearings with cross examination.

The recent actions by two federal courts, in Massachusetts and California, represent two of five lawsuits brought against the Rule; the others were in Maryland, New York, and Washington DC. The latter two were filed by state attorneys general; the other three were brought by feminist groups such as The Victim Rights Law Center. But the complaints against the Rule in each case are so similar that one might think they were orchestrated or drafted from one, central location (are they real “cases and controversies” or political discontent brought to court?). Challengers claim that the DeVos Department of Education was “arbitrary and capricious,” “undermined Title IX,” acted “beyond statutory authority,” or that the final rule was “not a logical outgrowth” of the one originally proposed; challengers also claim violations of the Constitution’s First Amendment, Fifth Amendment, or equal protection clause. 

In short, they hit DeVos with the kitchen sink.

But the effort failed. Every court to review the Rule has upheld it, and the lawsuits in Maryland and New York have now been withdrawn, the latter court stating, “While Plaintiffs disagree with the choices made by the DOE, they have failed to show that those decisions were arbitrary and capricious […] the Rule’s new provisions […] in due process […] are also in the public interest.” While the California court most recently failed to dismiss the case, giving challengers 45 days to amend their filing, it did express skepticism that those bringing suit had standing to do so.

The legal landscape is further complicated by the fact that Biden’s Education Department announced in April a “comprehensive review of Title IX,” a curious use of resources considering that DeVos just completed a review of three years’ duration (2017-2020). Because the Administration seems unsupportive of the rule, the Texas Attorney General and the nonprofit “FIRE” (Foundation for Individual Rights in Education) have asked judges if they may defend it instead of, or alongside, Biden lawyers. The D.C. court said “yes” but the Massachusetts court said “no,” so FIRE is now petitioning the United States Supreme Court to resolve the issue.

The truth is that feminist groups and Catherine Lhamon-types were going to take this Rule to court no matter what it said. They’re never happy, never satisfied, and with them, you can never win.

Obviously, the situation is fluid. But the numerous court victories for due process are consequential: They add to the growing body of law cementing basic procedural rights for those accused of Title IX offenses. Another group advocating campus fairness called “SAVE” (Stop Abusive and Violent Environments) has just released a compendium of these court holdings. It should be required reading for all Title IX personnel and especially for school General Counsel offices since they must advise Title IX staff on best practices—that is, what they can, and cannot, do.

Even the Massachusetts court’s removal of one part of the DeVos rule can be seen as a due process victory. The court noted the Rule’s exclusion of statements if the one making the statement could not be cross-examined:

if a party or witness does not submit to cross examination at the live hearing the decision maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility.

Such an exclusion is similar to the ban on hearsay in regular court: If a person making a statement cannot be questioned, the statement is “hearsay” and not admissible into evidence (though many exceptions to the hearsay rule exist). The Massachusetts court, however, presented a parade of horribles that could result from this unremarkable provision:

a Respondent may work with the school to schedule the live hearing and nothing in the final rule or administrative record prevents him or her from doing so to further a disruptive agenda e.g. At an inopportune time for third-party witnesses. The respondent may elect not to attend the hearing to avoid the possibility of self-incrimination and, so long as he does not do so in a tortious or retaliatory manner, the respondent may speak freely to his or her peers about the investigation to collect evidence or even to persuade other witnesses not to attend the hearing. The respondent could then rest easy knowing that the school could not subpoena other witnesses to appear…(emphasis added)

These scenarios are puzzling not only because they are speculative and implausible but also because they are obviously unethical. Indeed, in regular litigation they would constitute tampering with evidence (witnesses), or obstruction of justice, both serious crimes. Unsurprisingly, such actions are already banned by requirements for good faith in policies at most schools. What’s more, the DeVos Rule itself may already forbid such behavior in Section 106.45(b)(5)(vi) which requires schools to give all parties all evidence, including statements from others not relied upon for its determination. When parties are guaranteed such access to all third-party statements, the unfair or bad faith exclusion of relevant statements is certain to be contested and therefore highly unlikely; it would also be correctible on appeal.

More important, the Massachusetts court did not find the provision itself unlawful but rather only the agency’s failure “to consider this necessary and likely consequence,” concluding: “[I]n the absence of evidence that the Department adequately considered [this] prohibition on statements not subject to cross examination,” the provision “is remanded to the agency for further consideration and explanation.” This means that the prohibition can easily be reinstated if the agency provides a reason for its inclusion and addresses the consequence the court dubiously considers “necessary and likely.”

Otherwise, the Massachusetts opinion is straightforward, if somewhat repetitious, since it mentions over 25 times, in the span of 5 pages, all the meticulous work done by the DeVos team to promulgate the Rule, with constructions such as, “The Department considered […] responded […] detailed […] explained […] clarified […] documented […] stressed […] reasoned,” and so forth.  Indeed, observers know not only of the DeVos three-year inventory but also of the many public hearings, the review of over 124,000 comments, and the release, with the Rule, of almost 2,000 pages worth of comment and explanation.

In what world can such painstaking agency action be deemed “arbitrary and capricious”?

Perhaps when defending the rule, the Texas AG or FIRE could ask this question in court and inquire if such allegations are therefore frivolous, and sanctionable, since they waste a court’s time in making findings that advocates themselves should already know?

The truth is that feminist groups and Catherine Lhamon-types were going to take this Rule to court no matter what it said. They’re never happy, never satisfied, and with them, you can never win.

And that’s why their defeats this summer are so important.

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