Stay up to date with notifications from The Independent

Notifications can be managed in browser preferences.

The Independent's journalism is supported by our readers. When you purchase through links on our site, we may earn commission.

Title IX college sexual assault rules have changed. As a former dean, I have some concerns

This new option gives an escape route for university administrators in cases where the alleged perpetrator is powerful — say, because of lucrative athletic promise or a strong academic career

Alexandra Dufresne
Monday 11 May 2020 16:13 BST
Comments
Colleges across America are required to follow Title IX regulations or lose funding
Colleges across America are required to follow Title IX regulations or lose funding

On May 6, 2020, the Department of Education released its new Title IX regulations governing sexual assault and sexual harassment on university campuses. These new regulations reversed key policies of the Obama administration and have been met with both praise and criticism.

Some feminists regard the Obama administration’s policies as groundbreaking, vindicating the courage of student activists and combating decades-long practices of failing to take sexual assault and sexual harassment seriously. However, Obama’s approach has also been sharply criticized by civil libertarians, prominent feminst professors, and journalists for leading to a lack of due process for accused students and faculty. It has hit the news recently after the furore surrounding one New York Times feature titled: “The accusations were lies. But could we prove it?” One thing’s for sure: The issue is exceedingly complicated.

My perspective stems from serving as a residential college dean (well before Obama’s famous 2011 “Dear Colleague” letter), representing refugees and immigrants in deportation proceedings, and representing children in the child protection and juvenile justice systems. I have seen young people make exceedingly poor decisions and learn (and sometimes fail to learn) from them. I have seen the immense social pressure on victims of sexual abuse not to speak out against abusers. I have seen how shockingly common sexual assault is and how traumatizing it is. I have also seen up close what happens when good people make hard decisions without the benefit of basic norms of due process.

Poor process yields unjust results for alleged victims and alleged perpetrators. People are notoriously bad at assessing credibility. We rely on heuristics, stereotypes and untested assumptions to resolve ambiguities and fill in gaps. We let our beliefs and personal experiences influence our interpretation of evidence.

Our legal system has developed touchstones that, while imperfect, help reduce the risk that biases will infect decision-making. The greater the likelihood and harm of an erroneous decision, the more these protections are needed. In cases of sexual harassment and assault, the stakes for both sides are very high.

The new regulations seek to improve the due process rights of the accused by requiring universities to give the accused timely notice of the allegations against them and allowing accusers to be cross-examined in a live hearing. These are essential improvements.

Refusing to let the accused know the allegations against them before interviewing them can lead to frightening and absurd results (as has been illustrated in some particularly alarming stories here, here, and here.) The previously-allowed single investigator model can prevent parties from challenging investigator bias. Greater protections are particularly important in protecting black students accused of misconduct, who are at heightened risk of an unfair outcome.

Some critics argue that due process rights are not necessary because disciplinary proceedings are not “criminal”. This overstates the case: basic norms of due process are required in civil and administrative proceedings where significant interests are at stake. Being expelled, losing one’s scholarship, job, or career prospects, and being branded an abuser are significant losses, especially for young people, particularly in light of social justice movements designed to recognize the developmental needs of young adults.

Advocates and researchers have raised concerns that cross-examination can be re-traumatizing for victims of sexual assault. Chanel Miller writes beautifully about how dehumanizing such questioning (in the context of a criminal trial) can be. But it is essential to the accused’s ability to present their defense. While better training and selection of adjudicators is important, it is not a substitute for the right to cross-examine one’s accuser, through an adviser or lawyer. The right to cross-examination might actually result in more severe sanctions, such as expulsion, being imposed more frequently, as decision-makers will be more confident in the reliability of their findings, and will be less tempted to engage in some sort of intuitive “split the baby” type of justice that results in a mild sanction for severe conduct.

Moreover, the regulations allow for procedures to make testifying less traumatic, such as protecting survivors from confronting the accused face-to-face or being forced to answer questions asked directly by the accused — accommodations similar to some given to children who are required to testify in court about traumatic experiences. Questions about the accuser’s sexual history are forbidden.

However, the new regulations take a step in the wrong direction by giving universities the choice of employing the “preponderance of the evidence” (“more likely than not”) standard traditionally used in civil cases, or the more demanding “clear and convincing evidence” standard, used in civil cases in which the consequences of an erroneous decision would be particularly severe; for example, in cases involving the termination of parental rights. Giving universities the choice to employ the higher standard is unnecessary and counterproductive, and victims’ rights activists are right to be concerned about a chilling effect on reporting.

Some argue that the preponderance standard is too low because there would only need to be a “50.1” percent chance that the person is guilty, something that seems odd if one thinks of this in terms of, for example, a roulette wheel. The implication seems to be that 49 percent of people disciplined for sexual assault are actually factually innocent.

This demonstrates an artificial understanding of what “more likely than not” means and how people reason from evidence. The “more likely than not” standard is, in civil cases, quite demanding. Decision-makers do not flip a coin or calculate the odds based on experience adjudicating 100 similar cases. Instead, they look at the evidence and make a judgment about what they think is the right thing to do. The default is always set to protect the status quo, as evidenced by the fact that the percentage of complaints resulting in disciplinary action of any consequence is very low. In cases involving sexual harassment and abuse by faculty, in particular, a heightened evidentiary standard could lead to more situations of repeated abuse of multiple people over decades (as we can see here, here, and here.)

The pressure not to report abuse — not to “ruin someone’s life” — and the stigma of being a victim of sexual violence is immense, for victims of all genders. This is not to say that false claims never occur — just that there is no need to build a higher standard of proof into the system to guard against this possibility, especially when other due process protections (such as cross-examination) are added.

Most importantly, the “clear and convincing” evidence option might give university administrations an escape route in cases in which the alleged perpetrator is powerful, either by virtue of a storied academic career, a promising (and for the university, lucrative) athletic career, or by virtue of having wealthy and well-connected parents. The higher standard enables a university to avoid the awkwardness of concluding that a victim is lying or mistaken, while allowing the perpetrator to remain on campus with impunity, which could put other people at risk, given the serious problem of repeat offenders. It makes it too easy for administrations to claim that “their hands are tied.”

One day we will return to campus life in person. When we do, we should take care not to misinterpret these new regulations as a license to return to our ugly history of failing to protect survivors of sexual harassment and violence.

Alexandra Dufresne is an American lawyer for children and refugees and the former Dean of a residential college at a university in the US. She currently teaches law Switzerland and is writing a textbook about US law

Join our commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies

Comments

Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged inPlease refresh your browser to be logged in