Two weeks ago, the Department of Education's Office for Civil Rights rescinded two Obama-era guidance documents that instructed schools how to address sexual violence on campus. In new interim guidance, the Department made recommendations on a handful of issues. The new recommendations allow, but do not require, schools to depart from prior practices. One provision that has attracted substantial attention states that schools can now choose whether to use a “preponderance of the evidence” standard or “clear and convincing” standard in deciding these cases, so long as it is the same standard they use in other student misconduct matters. Under the Obama-era guidance, schools were instructed to use the preponderance standard.
The reaction to this change was swift, and from many corners, extreme. Anti-sexual assault activists decried the revocation of the old guidance as an attack on survivors of sexual assault. The youth-led group Know Your IX stated “Today’s guidance allows schools to systematically stack campus investigations against survivors and push survivors out of school.” Stanford Law professor Michelle Dauber tweeted “Trump Administration declares open season on college women for rapists. He is waging war on women.” Conservative commentators and pro-due process groups heralded the changes; some saw it as the end to a “war on men” they believe has overtaken college campuses. Journalist Ashe Schow crowed “For 6 years it has been open season on innocent men on campus, that changed today.” Lawyer Justin Dillon compared survivors’ rights groups like Know Your IX to the Death Star, and accused students’ advocates to Luke Skywalker.
Now that the dust has settled on the new announcement, and before the Department issues proposed regulations for public comment, it seems to be a good time to stop and think about what all of the arguing and hand wringing is really about. I (and others) have previously argued that there is plenty of room for consensus on improvements to existing campus sexual assault procedures. Everyone seems to agree that these processes should be fair and transparent, and respect the rights of all students involved.
The reaction to DeVos’ announcement shows that people on different sides of this debate nonetheless have fundamentally different concepts of the purpose of these adjudications. For proponents of the Obama-era guidance, the goal is to make the process “equal” for complainant and respondent. According to these groups, the preponderance of the evidence standard—in which both parties start on equal footing and the decisionmaker decides if the evidence tips the scale even the slightest bit one way or the other—achieves this goal. Those who favor this standard argue that Title IX is a civil law, the standard of evidence in a civil court case is by a preponderance, and that should therefore be the standard within school adjudications. (This argument misses some nuance of the law in this area, for example, that plaintiffs bear the initial burden of making out a case for discrimination). In this view of Title IX, the dispute is between the complainant and the respondent—the school’s role is to serve as arbiter.
For those who decry the lack of procedural protections in campus sexual misconduct adjudications, the dispute is not between accuser and accused any more than a criminal case is between the alleged victim and the defendant. The adjudication is one in which the institution seeks to determine whether a student is entitled to remain a part of the school community. In Title IX adjudications the consequences for respondents are punitive—often suspension or expulsion. In that sense, it is akin to a criminal prosecution. For those that hold this view the very idea of “equalizing” the playing field between complainant and respondent is nonsensical—the institution is only looking to punish one of the students, and that student should have protections to ensure that that punishment is meted out fairly.
Neither of these views fully captures campus sexual misconduct adjudications’ hybrid role. Title IX requires schools to address gender discrimination. Schools cannot ignore the complainant’s needs or the entire purpose of Title IX is missed. But school disciplinary procedures contain power disparities between the institution and the accused and a risk of punishment, like criminal proceedings. To treat these disputes as solely between two students ignores the purpose of campus disciplinary procedures: for the school to enforce its rules through punishment, often suspension or expulsion.
Much of the arguing between these groups is premised on an assumption that the only way to redress and prevent a hostile environment is to separate students from the school. We should be exploring whether schools can achieve Title IX’s purpose of ensuring that students are free from discrimination without relying only on extreme discipline. Some have suggested that restorative justice approaches might meet these needs. We should also be examining the appropriate use of alternative dispute resolution, mediation, and forms of punishments other than suspension and expulsion.
It is not clear whether the two camps can ever fully bridge their conceptual divide. We should, however, understand these different views, recognize that we must move beyond analogizing Title IX solely to criminal and civil cases, and think creatively about alternative resolutions if we are going to redress discrimination and provide fair processes for students facing discipline.