The long-anticipated new federal guidelines for how schools should respond to allegations of sex discrimination and sexual misconduct threaten to strip away certain important due process rights for those accused of violations.
The Education Department has now for a second time delayed issuance of these final rules, previously slated for release this October (and prior to that promised by May 2023). Although there is no doubt that schools must vigorously pursue and discipline wrongdoers on campus, there is a right way to do it that increases the odds of an accurate, reliable reckoning. Hopefully, the Education Department will use the additional time to reconsider its current path.
Title IX of the Nixon-era Education Amendments of 1972 bans sex discrimination by educational institutions receiving federal funds. The implementing regulations require recipients to respond promptly and effectively to sex-based discrimination claims. Failure to comply risks investigation and loss of federal funding.
The landmark Title IX overhaul surfaced in June of 2022 when the Education Department released its draft rules. The proposed Title IX guideline revisions would, among other things, explicitly make off-campus conduct — for example, at study abroad programs or in buildings under the control of student organizations, such as fraternities or sororities — subject to school disciplinary hearings, and would extend coverage to other forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.
What is notable from a procedural fairness perspective, however, is the new rules lower the default standard of evidence to determine guilt from “clear and convincing” to “more likely than not.” The stated goal is to make it easier for administrators to hand down determinations of responsibility.
Of even greater concern, the very same school administrators who investigate the allegations and decided whether to initiate disciplinary charges can now also serve as the final decision-makers, rendering them the disciplinary investigator, prosecutor, judge, jury and executioner The new framework additionally removes the right to a live hearing, including the opportunity for cross-examination, and additionally makes the right to present expert testimony a thing of the past.
These weighty changes have generated understandable worries about independence, politicization of the process, bias and accuracy in fact finding. Nevertheless, the Education Department and its Office for Civil Rights steadfastly maintain their “historic” changes to Title IX should be welcomed by all because they purportedly promote efficiency and access, help schools maintain a safe environment for learning and foster “institutional and civic values.”
But this is an oversimplification. Findings of factual guilt are anything but trivial matters. Although secondary traumatization of survivors is a serious concern, it is also true that for students, a determination of responsibility for having violated institutional codes brings with it the potential of severe, life-changing sanctions, up to and including revoked diplomas, suspensions and expulsions. Faculty and staff, in turn, face discipline and termination. Those grave consequences say nothing of permanent reputational damage and the possible criminal charges and civil litigation that can follow a finding of responsibility — or even non-responsibility.
The Government’s paring down of on-campus procedural safeguards paradoxically also comes at the very time that many legislatures and prosecutors are leaving off-campus victims more exposed by restricting law enforcement powers and beefing up the rights of the accused in the criminal justice context.
The Education Department’s embrace of due process minimalism creates additional ironic tensions. What, for example, of the otherwise prevailing reform-minded concerns about those in power mistreating individuals from historically underrepresented and marginalized groups, including those who are students? Is there any reason to believe they will not suffer similarly disparate impacts when schools remove institutional due process safeguards?
Even supporters of the final rules concede these significant changes create fertile ground for sincere claims of bias, politicization and unfairness. The deluge of 240,000-plus public comments on the proposed rules serves as a conspicuous telltale that, despite the Department framing of the issue, the final rules are anything but straightforwardly uncontroversial. In fact, this mountain of critical feedback is the very reason the Education Department delayed issuance of the final rules to Spring 2024 at the earliest.
The proposed new rules promise to introduce weighty, controversial changes to college and university disciplinary procedures and the due process rights they confer. Considering the broad scope and aggressive nature of the proposed Title IX changes, absent a rewrite, lawsuits led by concerned state attorney generals are certain.
Few will line up to morally defend students, administrators or faculty who engaged in sex discrimination and misconduct. Such bad actors must be decisively dealt with and should have no place on campus.
Reasonable people, and particularly those who consider due process rights an important institutional protection against institutional overreach, can fairly question the wisdom of endorsing rules explicitly tailored to help college and university administrators more easily achieve determinations of “guilt.” After all, who would want to be judged using such a pared-down process? And is there a credible argument that it is likely to produce more integrity-filled outcomes?
The Education Department should use the additional months caused by the delay in issuing the final rules to carefully consider its current direction on disciplinary proceedings so that findings of culpability are, and will be publicly perceived as, appropriately reliable and meaningful. We owe that to victims and the accused in equal measure.
T. Markus Funk (@TMarkusFunk1), a former federal prosecutor who taught criminal law at institutions including Oxford University (where he earned his PhD in Law), the University of Chicago and Northwestern University, is in private practice with a global law firm. He is the author of Rethinking Self-Defense: The ‘Ancient Right’s’ Rationale Disentangled (Rowman & Littlefield, 2021).
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.