A Primer on the New Title IX Rules (NT9R’s).
Women have Forever been Sexually Harassed in School:
Take that as axiomatic. No man can fight a sexual misconduct proceeding in school thinking that the system did not allow men to abuse women for probably as long as the first woman went to school. It did. And finally, starting around April of 2011, the Obama administration, trying to fix a probably century-old practice from school staff of just telling (mostly women) survivors of sexual assault on campus that they should move on with their lives and not wear revealing clothing if they did not want to be sexually harassed, (meaning a deplorable practice that seems to have been the norm at every single higher ed provider in the US) published a letter. (1). This “Dear Colleague” letter asked colleges to prosecute men for sexual misconduct under Title IX or face loss of federal funding. Although the letter did cause a great deal of enforcement—and inquisitorial type “you are guilty because I say so” tragedies—not a single school, to my knowledge, ever lost this federal funding. What schools lost was their moral standing: It finally appeared like hypocrisy exists in a work force—school staff—that has no effective check or balance. The school staff gets away with a lot because even if a student has a complaint, that student moves on, and the next one does not know. Faculty? Not their job! They need to publish or perish, not fight the staff.
The Kangaroo Court Period:
Since the Department of Education’s 2011 “Dear Colleague” Letter, critics have charged that the procedures at these “quasi-judicial” hearings are biased against the accused. The accused, make no mistake, are overwhelmingly heterosexual males, and in my experience, overwhelmingly either athletes or men of color, an intersection that, in addition, happens a lot in college sports. The procedures also replicated asymmetries between students—the whiter and wealthier the student the better chance of a no-responsibility finding. In law, that’s called “intersectionality” a field pioneered by UCLAw professor Crenshaw. (2) And there has always been news criticizing this risk—that no man or his family imagined that going to College would land him in a kangaroo court that would end his career and even more so if the student had low resources or was of color. (3).
The Men Start Fighting Back (Greatly Supported by their Mothers).
Activism against the Kangaroo Court period started not from the disgraced students, but from their mothers. They founded groups that inform, refer for legal action, lobby congress and the Department of Education, and, importantly, track litigation from men who sue their schools because they were disciplined under an allegation of sexual misconduct that violated something—“fairness,” or the student’s actual contract with the school (say for example the school says it will be thorough in its investigation of sexual misconduct but it does not interview your witnesses), or the student’s rights to due process, or to be educated without bias against men. You can read a lot more on these claims throughout our website, www.studentmisconduct.com. These groups include, for example, https://helpsaveoursons.com/, which forms the counter-weight to the groups who advocate for enforcement of Title IX, including https://endrapeoncampus.org/. They engaged in a dialectic struggle--to put it mildly. But it yielded results:
The 2011 Guidance is Revoked
The election of Donald Trump brought his appointment of Betsy DeVos to the Education Department and she, along with the new leaders in the Education Department’s Office of Civil Rights (“OCR”) decided to invalidate most of the letters that OCR had published during the Obama administration. (4). What triggered that? Well, men responding to sexual misconduct allegations did not do well under these letters. This, of course, depends on your point of view, but it did seem like the letters’ theme was “a woman in school has an enormous chance of being raped” (as some journalists pointed out, a claim made possible by using flawed statistics where the rate of female rape in US campuses was higher than rates of rape in countries where rape is used as a weapon of war). That theme moved on to a very logical position: thus “we must protect the woman”. But in that quest to protect the woman, the letters gave up on the very essence of fairness: That a man, even if very likely guilty, has a right to a defense, and more so the man who was falsely accused. Law professors said this first. (5). We said it, over and over again, in Courts and to OCR. (6). Many disagreed.
The NT9R’s get Drafted and Issued Following the Required Procedure.
To correct all of this OCR actually engaged in a flawless legislative process to issue something that did not exist before—Rules. (7). The problems with the Kangaroo Courts stemmed from “guidance” and from “letters” which are not law. Rules are laws that can be rolled back but they are not ad-hoc rules; suggestions with pointless threats like loss of federal funding. So, after a couple of public comment periods that gave rise to a very unfortunate hashtag telling Secretary DeVos, a woman, to do to herself the very thing that Title IX forbids, the NT9R’s came out. (8). They make a fairer playing field. They do not do away with the systemic experiences of discrimination that both sides complain of, they do not fix intersectionality risk, at all, but they do make everyone more likely to be found innocent if that is actually the case.
The NT9R’s go Into Effect.
The NT9R’s went into effect on August 14, 2020. That means that if after that day a man learns of a sexual misconduct violation and that he is being investigated for it, as well as if a man (9) learns that he is going to face a hearing because of the outcome of this investigation, the man has access to classical guarantees of fairness, including:
1. From day one the school Title IX staff tells you the entire complaint against you.
2. From day one the school Title IX staff (and police and everyone else) must treat you as if they are presuming your innocence, as opposed to assuming you are a rapist.
3. You get to see, in detail, all of the materials the school compiled in their investigation—so you make sure your evidence is in and you make sure the other side is stating the truth.
4. You get a live hearing where you get to cross examine your complainant and her witnesses (which is mostly done if it is necessary to prove they are either lying or mistaken and which is definitely better done by lawyers).
There’s more here: https://www.studentmisconduct.com/news/the-new-title-ix-rules-nt9rs-make-it-better-for-everyone-its-more-like-a-courtroom. For sure, none of this fairness will work as well if the man does not have a lawyer from day one. Like we say above, asymmetries remain, but the field is more level under the NT9R’s.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather, suggestions on how to protect your family’s college students in this Coronavirus national emergency. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. The 2011 letter can be found here: Russlynn Ali, Assistant Sec’y, Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter on Sexual Violence (Apr. 4, 2011) https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
[https://perma.cc/T8HQ-Y97K].
2. https://www.ted.com/talks/kimberle_crenshaw_the_urgency_of_intersectionality?language=en. I went to that school because of that professor.
3. For one of many, many examples, read: Lara Bazelon, The Landmark Sexual Assault Case You’ve Probably Never Heard of, POLITICO MAG. (Apr. 18, 2017), https://www.politico.com/magazine/story/2017/04/sexualassault-title-ix-trump-california-san-diego-215037 [https://perma.cc/E8ST-AJT8
6. https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris
TITLE IX DUE PROCESS OR FAIRNESS REQUIRES SCHOOLS TO SUPPLY LAWYERS TO EXAMINE, CROSS EXAMINE, AND MOVE FOR SUPPRESSION OR ADMISSION DURING HEARINGS.
7. It was so unusual to see the Trump administration do something correctly that we actually acknowledged it, and predicted the NT9R’s would survive challenges; particularly injunctions: https://www.studentmisconduct.com/news/what-are-the-new-title-ix-sexual-misconduct-rules-about-and-will-schools-need-to-follow-them. The challenges have been invalidated to the extent that no injunctive relief will happen. Thus, more than likely, the NT9R’s are here to stay: See, e.g., York et al, plaintiffs, against United States Department of Education, et al, defendants, NYSD No. 20-cv-4260, where in Judge John G. Koeltl’s 46 page order and opinion of August 9, 2020, the Court finds that:
“Although the plaintiffs would have drawn lines differently from those drawn in the Rule, they have failed to show that they will likely prevail on their argument that the DOE acted “arbitrarily and capriciously” or otherwise in violation of law when it promulgated the Rule. Therefore, as explained in detail below, the motion for a preliminary injunction, or for a stay, is denied.”
It is also important to note that while this is a burning issue in education law, or if you are involved in sexual misconduct, the whole question has very little traction in national electoral politics: https://www.studentmisconduct.com/news/2020-campaign-position-how-should-vice-president-joe-biden-and-other-democrats-running-for-office-handle-title-ix-and-student-misconduct
8. https://www.ed.gov/news/press-releases/us-department-education-launches-new-title-ix-resources-students-institutions-historic-new-rule-takes-effect A good analysis that tries to stay objective can be found here: https://www.brookings.edu/research/analyzing-the-department-of-educations-final-title-ix-rules-on-sexual-misconduct/
9. The term “man” is used here as a fractal representing the gender of the more likely respondent or defendant in a claim of sexual harassment or misconduct from another student who, likewise, is more likely to be a “woman”. This by no means ignores the full spectrum of genders and gender preferences involved in the sexual misconduct universe all of whom need to consent to the other: Of course sexual misconduct includes gay rape, lesbian abuse, and all other manner of permutations. Everyone in the role of respondent faces a spectrum of accusations from there was “no consent” (clear rape) to there was no “enthusiastic consent” (gray rape) to “the allegation of rape got formulated in the Title IX office when the woman got there to say her story first”.