Editor's Note: This article was originally published by National Review on August 24, 2020 and is republished here with permission.
August has been a big month for Title IX, the federal law banning sex discrimination at schools receiving federal funds. Two federal district courts allowed the Trump administration’s new Title IX regulations to take effect on schedule (August 14), and at least two schools, Princeton and Tulane Universities, announced they are creating two disciplinary tracks for campus sexual-misconduct complaints — one reflecting federal Title IX policy and the other reflecting the school’s own policy. Given the history of Title IX and the politics of campus sexual-assault allegations, this “two-track” approach should be closely watched.
Title IX was an uncontroversial 1972 ban on sex discrimination in education that became controversial when it was used to fund women’s college sports — and defund men’s — and was later applied to sexual misconduct, considered as a form of sex discrimination. This latter development was originally limited to quid pro quo propositions — high grades in exchange for sex, for example — but later was extended to the idea of “hostile environment” sex discrimination and then grew to include even the crime of violence, or sexual assault, as sex bias. These expansions came mostly from bureaucrats in the Clinton and Obama Education Departments — with the help of a few liberal judges — but were well received by feminists on campus, especially in the Title IX office, which quickly became known as the “campus sex police,” eagerly investigating and punishing any student accused of sexual assault. Wrongly accused students then began to successfully sue their schools, claiming due-process violations or contractual breaches of student handbooks when Title IX offices presumed guilt, withheld evidence, and banned the live questioning of witnesses or accusers.
The new regulations restore balance to these Title IX proceedings by mandating basic due process, such as the presumption of innocence, the right to see evidence, and, in higher education, the right to a live hearing to question accusers and cross-examine witnesses, among other things.
They also restore an objective and more education-related definition of “hostile environment” sex discrimination, based on a 1999 Supreme Court case, Davis v. Monroe County Board of Education, which found that Title IX holds schools responsible only for “conduct on the basis of sex” that is “so severe, pervasive and objectively offensive” that it effectively denies educational access. The new regulations also include two other categories of prohibited conduct — quid pro quo propositions and sexual assault.
Opponents of the new regulations quickly challenged them in court, however, claiming they were arbitrary and capricious and therefore should not take effect. Judges in New York and D.C. last week disagreed, finding that Trump’s Education Department had considered public input and had explained its rationales (the rule was issued with 2,000 pages of comment).
The court complaints (four were filed) object to the Davis standard, arguing that some acts may be severe but not pervasive — what if a student is shown pornography but only once? — while other acts may be pervasive but not initially severe, such as recurring taunts of a sexual nature. Must a student wait until educational access is “effectively denied” before complaining to the Title IX office?
Actually, yes. Because Title IX is quintessentially a guarantee for educational opportunity and not a sex-crimes law, it should apply only when educational opportunity is violated. In effect, the new regulations help bring Title IX back to that original purpose. (In fact, because the last category of prohibited conduct, sexual assault, presumes that such opportunity is violated, it deserves more scrutiny by the courts and others.) Schools are free, however, to ban taunts or pornography or any other “conduct on the basis of sex” in their own student codes, and now Princeton and Tulane have done just that: They are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.
Is this a move to evade the new due-process requirements? At Princeton, for example, its separate track allows for written cross-examination of witnesses, while the Trump regulations require a live hearing with in-person questioning of parties and witnesses, stating, “Such cross-examination at the live hearing must be conducted directly, orally and in real time by the party’s advisor of choice.”
If evasion is the intent of such schools, they should realize that this probably won’t work:
While not every complaint is a Title IX complaint, every school program, including disciplinary procedures, must comply with Title IX. And due-process deprivations can themselves become a Title IX issue if they favor one sex. One court explained: “Title IX . . . is understood to ‘bar the imposition of university discipline where gender is a motivating factor in the decision to discipline.’” In effect, if procedural problems suggest sex bias, even on a non–Title IX disciplinary track, an accused student can invoke Title IX as a shield to ensure evenhandedness.
But even more simply, courts are increasingly requiring schools to provide due process, including live hearings in sexual-misconduct cases, as a matter of fundamental fairness rather than regulatory mandate. That was the result of Doe v. University of the Sciences in Philadelphia, a Third Circuit case decided earlier this year: The court there found that procedural deficiencies violated both Title IX and the school’s student handbook, which guaranteed “fair” and “equitable” treatment of students. The court additionally noted that fairness was also required by state case law and the Pennsylvania Administrative Code, which governs private as well as public institutions. The court insisted that “basic fairness in the context of sexual assault investigations requires that students accused of sexual assault receive these procedural protections.” For the Third Circuit, which also covers Princeton, N.J., such “procedural protections” include live hearings and cross-examination. Princeton’s general counsel should have a look (will written cross-examination suffice?).
Of course, schools would do well to include due-process protections in all of their disciplinary tracks; but given the seriousness of sexual misconduct and the history of Title IX abuses, discipline on this second track will be closely watched for fundamental fairness — at Princeton and Tulane and elsewhere.
Teresa Manning is Policy Director at the National Association of Scholars.