Colleges, Courts on Collision Course

Corey Friedman
Mon, 25 Jul 2022 17:02:11 -0700
Opinion

You're accused of a serious offense. Determined to clear your name, you agree to an interview and give a voluntary statement. The evidence against you is secret, and there's no right to face your accuser. Weeks later, the same person who informed you of the allegation decides your punishment.

That farcical facsimile of justice is better suited to a corrupt autocracy than a constitutional republic, but if Catherine Lhamon has her way, it will become the norm at American colleges and universities.
Updated: Tue Jul 26, 2022

You're accused of a serious offense. Determined to clear your name, you agree to an interview and give a voluntary statement. The evidence against you is secret, and there's no right to face your accuser. Weeks later, the same person who informed you of the allegation decides your punishment.

That farcical facsimile of justice is better suited to a corrupt autocracy than a constitutional republic, but if Catherine Lhamon has her way, it will become the norm at American colleges and universities.

Lhamon, the U.S. Department of Education's assistant secretary for civil rights, is the driving force behind new Title IX regulations currently in the notice-and-comment stage of federal rulemaking. When the proposed rules take effect, colleges will face pressure to adjudicate sexual assault and harassment claims without even a cursory pretense of fairness.

Education Secretary Miguel Cardona unveiled the rulebook on June 23, the 50th anniversary of Title IX's passage. Cynically described as a reform measure that will "restore crucial protections" for victims of sexual misconduct, the document instead strips away due process rights from respondents — the students and professors who stand accused.

"This new proposal is a non-starter for student and faculty rights," explained Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression. "These regulations eliminate the right to live hearings, eliminate the right to cross-examination, weaken protections for free speech, and authorize schools to deny students the right to have the active assistance of a lawyer. That's a recipe for constitutional violations that courts are unlikely to ignore."

Under long-standing interpretations of Title IX, colleges are required to investigate sexual assault, harassment and discrimination complaints. That's the root of the problem. Rape and assault are violent crimes better left to sworn law enforcement officers than campus bureaucrats. Harassment, discrimination and retaliation are complex civil matters that often call for legal expertise.

Title IX compliance officers are hopelessly out of their depth. Without subpoena power, forensics labs or search warrants, their "investigations" largely consist of personal interviews. With no working knowledge of law and precedent, few can reliably draw distinctions between genuine harassment and garden-variety rudeness.

Lhamon's new diktats for American colleges put the kibosh on cross-examining witnesses, either personally or through a representative. They expressly allow the single-investigator model in which the same official who gathers the evidence passes judgment on the accused. In most cases, schools will be required to use the weak preponderance of the evidence standard, or "50% plus a feather," in deciding which side is more credible.

The Department of Education's Title IX regulations also will replace the Supreme Court's definition of sexual harassment with a looser definition that can apply to some protected speech, teeing up First Amendment challenges at public colleges, which have constitutional obligations, and breach-of-contract lawsuits at any private institution that promises equivalent free speech and academic freedom.

When the rules become official, they'll replace a set of standards former Education Secretary Betsy DeVos introduced to ensure both accusers and the accused received fair treatment. Civil liberties watchdogs largely favored the old rules, but victim advocacy groups said survivors shouldn't have to relive their trauma under harsh cross-examination, and never mind if that tilts the scales.

Lhamon's playbook is bad news for colleges and universities, and the news will only get worse. Case law in some jurisdictions already requires due process in Title IX cases. That supersedes administrative rules and will leave administrators in an unenviable Catch-22 that's sure to tie them up in litigation.

When their schools brand them responsible for sexual misconduct, some students and professors sue — and because actual courts of law tend to frown on kangaroo courts, they often win. Appellate panels in the 3rd, 6th and 7th circuits have demanded due process, while a conflicting 1st Circuit decision says campus disciplinary hearings don't have to include cross-examination.

All roads lead to the Supreme Court, which won't look kindly on Lhamon's make-it-up-as-you-go-along approach to campus justice.

In the meantime, the falsely accused will have their reputations ruined and the guilty will use the shambolic process as a loophole to escape consequences. If all this benefits sexual assault survivors and sexual harassment victims, it's difficult to see how.