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I have previously written of my strong support for the “Me Too” movement, tempered by concern about the danger of the pendulum swinging too far toward the presumed guilt of the accused. While I am a confirmed champion of survivors of sexual assault, as a lawyer I am an officer of the court and must also champion the right of the accused to due process.
How can this delicate balance be struck in the emotionally charged world of alleged sexual assault? As a nation, we are now in the midst of confronting that challenge.
The U.S. Department of Education recently released proposed regulations interpreting Title IX, specifically relating to allegations of sexual misconduct. As expected, the proposed regulations would relax some of the guidance of the Obama Education Department. The prior guidance threatened the withholding of federal money to universities if certain requirements, not specified in the Title IX statute, were not met.
Many thought the prior guidance was too one-sided, giving short shrift to the rights of the accused to a fair proceeding. In fact, the number of lawsuits filed by accused students against universities is said to have increased exponentially, to an average of one per week.
In 2017, Education Secretary Betsy DeVos, quoting an open letter from the Penn State University Law School faculty, said there “is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.”
Now the department has published proposed regulations that adhere to the statutory requirements of Title IX and U.S. Supreme Court rulings. In determining the liability of educational institutions for violations of Title IX, this leads to a more restrictive definition of sexual harassment: In most cases, it must be “unwelcome conduct … so severe, pervasive and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity.” Universities won’t be liable for inaction unless an official with authority to institute corrective measures has actual knowledge of the allegations.
The proposed regulations also address the evidence standard (preponderance of the evidence, or “more likely than not,” versus “clear and convincing” evidence), allowing schools to choose which standard to use while requiring uniformity with other disciplinary processes. And they add due process protections, including, in the case of universities, cross-examination—but not by the accused, and not by forcing the alleged victim into the same room as the accused.
Advocates for survivors of sexual harassment are concerned about the potential for some of these provisions to depress reporting. Some estimate that as many as 80 percent of student survivors of sexual assault already choose not to report the assault.
It would be concerning, even alarming, if the processes adopted by schools further depressed reporting, but I believe there are ways to avoid that in the manner the schools choose to conduct their processes. It’s critically important to create a survivor-friendly reporting environment, which can easily be done within the proposed regulations.
Critics object to the definition of sexual harassment, saying it’s too restrictive. However, the only legal remedy for that is to amend the Title IX statute. And it’s important to note that misconduct not specifically covered under Title IX can still be punished under the school’s disciplinary processes.
The bottom line: The department is following the law, and schools can—and should—vigorously protect the rights of victimized students while preserving due process for both accuser and accused.•
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Daniels, a partner at Krieg DeVault LLP, is a former U.S. attorney, assistant U.S. attorney general, and president of the Sagamore Institute. Send comments to ibjedit@ibj.com.
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