The Education Department released draft regulations in November related to Title IX, a federal statute prohibiting sex discrimination by educational institutions. The new rules, if they become law, would require hundreds (perhaps thousands) of American colleges and universities to change how they handle allegations of sexual assault and harassment. Conforming campus rules to the new federal mandates will require time and attention, with difficult trade-offs that may divide campus communities.
Since her confirmation as education secretary two years ago, Betsy DeVos indicated her desire to roll back Obama administration guidance related to Title IX, particularly as it affected campus adjudications of sexual assault and harassment charges. The Obama guidance had inspired widespread criticism from both liberals and conservatives. Supporters of the Obama guidance — including groups advocating for sexual assault survivors — had few friends in the Trump administration, making rollback seem nearly inevitable. The November announcement indeed delivered much of what these advocates feared, including a requirement that complainants face cross-examination during campus hearings, as well as opportunities for institutions to limit the scope of what counts as sexual harassment under their own rules.
Much as they did when the Obama administration issued guidance and began vigorous enforcement of its vision of what Title IX required, universities in the DeVos era will find a way to conform to federal law and avoid antagonizing the Education Department, which at least in theory has the power to deny all federal funds to an institution that violates federal anti-discrimination law.
However, as was also true during the Obama administration, universities will have choices to make once the new federal regulations become final and binding. For example, while universities will have the option to exclude certain off-campus student-on-student rape from their definitions of student conduct offenses, would that be wise? A narrower definition spares the university the difficulty of adjudicating charges of off-campus assault, but it also leaves victims with fewer options and may prevent the institution from expelling a known rapist. Prosecutors often decline to prosecute rape despite having good evidence because even solid cases may not be provable beyond a reasonable doubt.
Further, now that cross-examination is likely to be required by federal law, institutions must decide how to implement the practice. Advocates for survivors have strongly objected to introducing cross-examination at campus hearings, stressing the risk of causing additional trauma to victims and arguing against the needless “criminalization” of campus discipline rules. Institutions should think now about how they will obey federal law while minimizing the negative effects on student complainants. I have supported cross-examination for some time and also understand why colleagues I respect deeply feel differently. Regardless of whether one supported cross-examination in the first place, institutions should consider how they will train their hearing officers to prevent improper badgering of witnesses.
With advocates for accusers and accused students likely to assume larger roles, institutions should consider who will represent their students at campus hearings. Some students have sufficient means to hire licensed lawyers, and particularly those facing possible expulsion may find that expense worthwhile. Others lack the ability to pay lawyers. Perhaps institutions should find lawyers willing to provide this service at the institution’s expense. Or, because campus hearings are not court proceedings at which a law license is required, institutions may wish to train non-lawyers to represent complainants and respondents. These participants could be staff, faculty or even students.
With the proposed regulations opening the door to greater use of mediation and other informal resolution processes in sexual assault cases — the Obama administration guidance had discouraged the practice—institutions must decide whether and when to choose that path. Mediation can resolve cases more quickly than formal hearings, and the mediation process may be less unpleasant than the court-like atmosphere of a hearing room. Hearings, however, have the benefit of standardized procedures, and they protect victims from being pressured into negotiating with their assailants and eventually dropping their claims to promote reconciliation.
As these examples indicate, colleges and universities will soon have to make difficult decisions about how to amend their campus rules concerning sexual assault and harassment. Worthy goals will often be in tension with one another, forcing administrators to leave some constituents disappointed. In addition, even policies that everyone of good will should support — such as effective training for hearing panelists and careful guidance about proper cross-examination — will take time to implement well.
Institutions will be tempted to rush through amendments to their internal rules in the wake of the final approval of the Education Department regulations. Unless they thoughtfully seek input from varying perspectives, colleges and universities risk choosing policies that cause needless trauma to sexual assault victims — and accused students — already suspicious of campus officials. Unless they embrace the opportunity to discuss how to best honor institutional values, they risk enacting procedures they will later regret. One day, the United States will have a new president, with a new education secretary.
Ben Trachtenberg is an associate professor of law at the University of Missouri.