How should Democrats running for office in 2020 frame questions about suing to invalidate the new Title IX Rules?
Political analysis of the pointless litigation against the new Title IX Rules.
Title IX’s New Rules go into effect August 14, 2020 giving men responding to complaints of sexual misconduct while in college or grad school the right to:
A Cross Examine the woman accusing them of misconduct (when they deny it).
B Know ahead of time exactly what the complaint is and who filed it.
C See the evidence against them—ALL OF IT, before it is used against them.
In general, the New Rules have overwhelming support from US voters across the political spectrum (1) and they also have specific support from legal scholars and, thus far, from Justice Ruth Bader Ginsburg. (2). Therefore, it is pointless to sue to invalidate them. Similarly, it is pointless to make their invalidation a campaign issue. What matters in campaign discussions of higher education is loan forgiveness and court-like fairness for men and women facing school discipline.
However, the New Rules, particularly A, worry survivor’s groups because some of them hold the view that it is unfair to have a college-educated woman who (at the worst extreme of the spectrum) has been raped, go on to get re-traumatized during her cross examination by the man who allegedly raped her (or in the better scenario by the man’s lawyer). Of course this is the factual extreme and exactly the kind of trauma every rape victim experiences in court. But the New Rules address many other scenarios, which can only be clarified with vigorous interrogation, including misconduct when:
• Both were drunk • One got the other drunk,
• One is gay and did not understand • Sender thinks the texts are sexy
• Recipient sees texts as stalking • Complainant lies.
Cross examination functions as a progressive truth filter that optimally boils down punishment to only the real guilty within that spectrum. (3).
In that context, two strains of lawsuits have arisen seeking to end the new regulation on how Title IX needs to protect both the complainant and the respondent from false and a myriad other complaints. These lawsuits will fail, and distract the political electoral conversation in education away from what really matters (STUDENT LOAN FORGIVENESS and COURT LIKE PROCEDURE (4). They break in two sets:
Lawsuit from Attorneys General (all Democrats):
The cream of the elected Democratic legal establishment filed a lawsuit against DeVos and the new Title IX rules, claiming problems in the promulgation and effect of the new rules, including believing that cross examination is wrong, and traumatizing:
“…, in postsecondary schools, the Rule will require third party advisors to conduct live, direct, oral cross-examination of the other party—even where the advisor selected is a parent or the other party’s teacher and even where less traumatizing methods exist to allow parties to ask questions of each other.” (5).
Thus the Democratic Attorneys General in Pennsylvania, California, New Jersey, Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia short-change Title IX respondents away from the tradition of fairness for defendants in other trials. (6). A Title IX misconduct proceeding, after all, takes away something fundamental, like a man’s education and his degree. Yet in this lawsuit the Attorneys General seek to push the law of Title IX to a new normal of gender-based asymmetry (7) because of our deplorable history of racist misogyny at the expense of the protected interest: a respondent’s education. (8). This lawsuit thinks nothing of the harm to the respondent in a gray case, or to the harm to a falsely-accused respondent.
Plus, of these states, arguably, only Pennsylvania and Wisconsin matter to secure the election of Vice President Biden. Ironically, the argument against cross examination is already moot in those battleground states. Under the federal law of the 3rd Circuit Court of Appeals, cross examination is already a guarantee for student respondents in Pennsylvania, with or without the Title IX rules. (That’s one of the many jewels in the USciences case (9)). Similarly, under the federal law of the 7th Circuit Court of Appeals, male students responding to sexual misconduct are entitled to trial-like procedures and to an absence of male bias. (10). Thus, the status of Title IX law in these battleground states is, already, the status that the voters would like to see. This makes the lawsuits (and supporting them) useless to secure a Democratic win in 2020 both at the presidential and at the down ballot races.
Lawsuit from the ACLU joined by survivors’ groups:
The ACLU sued to stop the new Title IX rules because, as it has stated:
“None of this [lawsuit] has anything to do with the fair process rights of the respondent. It has to do with the obligations of schools to respond to sexual harassment complaints.” (11).
And that makes sense but even with that reason they did not need to try and sink the entire ship. Schools get away with much under the New Rules. But in trying to increase regulation of schools and to remind them to take care of the students, who are their customers, the ACLU inherently opposes the enormous gains in fairness for respondents that the new Title IX rules carry; a benefit that agrees with the ACLU’s great tradition of equality for the powerless. Thus, while this lawsuit might create an elite space for a conversation so that regulation forces Title IX staff to work harder, it also plays into the delay and inaction that schools wish and that voters hate. (12).
In conclusion, it is useless, politically and legally, to sue or talk about suing to invalidate the new Title IX rules.
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, my amateur suggestions on how to campaign as a Democrat in 2020 and talk about Title IX.
As posted in Quora:
Endnotes:
1. See our position paper on how Vice President Biden and other Democrats running for office in 2020 should frame questions related to Title IX’s New Rules available here: 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
2. “The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?”… “Justice Ruth Bader Ginsburg has said in speeches and interviews that the Obama-era regulations deny due process and a fair hearing to the accused. Nadine Strossen, a past president of the American Civil Liberties Union, said on a National Review podcast that the new regulations from Ms. DeVos represented “a step forward in due process for everybody.” Michael Powell, Trump Overhaul of Campus Sex Assault Rules Wins Surprising Support, the New York Times, June 25, 2020, available at:
https://www.nytimes.com/2020/06/25/us/college-sex-assault-rules.html?smid=tw-share
3. We lobbied for cross-examination at school-driven student misconduct proceedings long before the New Rules actually implemented that right: https://www.studentmisconduct.com/news/whats-title-ixs-problem-with-having-college-investigations-of-student-sexual-misconduct-without-cross-examinations. This is the comment we submitted to DOE asking precisely for that provision in the New Rules: https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris
4. “Voters support 57 - 40 percent having the federal government forgive up to $50,000 in student loans for individuals in households making less than $250,000 a year;…”according to the Quinnipiac Poll which is available here: https://poll.qu.edu/national/release-detail?ReleaseID=2617
(5) https://oag.ca.gov/system/files/attachments/press-docs/1-%20Complaint.pdf
(6) In fairness so do a number of members of congress: “WASHINGTON – U.S. Rep. Annie Kuster (NH-02); Jackie Speier (CA-14), Co-Chair of the Democratic Women’s Caucus; Ayanna Pressley (MA-07); and Elissa Slotkin (MI-08) sent a letter today to Secretary of Education Betsey DeVos, urging the Administration to rescind its dangerous new Title IX rule that guts protections for student survivors of sexual assault and places a tremendous strain on already-overburdened schools. The letter was signed by 101 of their U.S House of Representative colleagues. The final rule is slated to go into effect on August 14, 2020, and is being challenged in court.” See, https://www.nashuatelegraph.com/wire/?category=2921198&ID=113779
(8) The movement that encourages women to describe their negative sexual experiences and say “me too” can be traced to a 2007 campaign begun by Tarana Burke, a New York-based advocate for gender equity. She began using the phrase to raise awareness of the pervasiveness of sexual abuse and assault, but it did not develop into the broader movement of that name until 2017 with the widespread use of the Me Too hashtag following the Harvey Weinstein sexual abuse allegations. Alanna Vagianos, The ‘Me Too’ Campaign Was Created by a Black Woman 10 Years Ago, HUFFPOST (Oct. 17, 2017, 1:44 PM), https://www.huffpost.com/ entry/the-me-too-campaign-was-created-by-a-black-woman-10-yearsago_n_59e61a7fe4b02a215b336fee [https://perma.cc/FX52-4CRG]. In 2017, Time magazine named Burke, among a group of other prominent activists dubbed “the silence breakers,” as its “Person of the Year.” Stephanie Zacharek, Eliana Dockterman & Haley Sweetland Edwards, The Silence Breakers, TIME (Dec. 18, 2017), http://time.com/time-person-of-the-year-2017- silence-breakers/ [https://perma.cc/RRR9-SCFT].
(9) John Doe v. University of the Sciences, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 19-2966, available here: https://www.studentmisconduct.com/news/john-doe-v-university-of-the-sciences-united-states-court-of-appeals-for-the-third-circuit-no-19-2966
(10) John Doe v. Purdue University, Case No. 17-3565 (7th Cir. June 28, 2019).
(12) Importantly, the ACLU did not do a kitchen sink law suit perhaps because, as we predicted, the Education Department followed proper procedure to promulgate the New Rules. https://www.studentmisconduct.com/news/what-are-the-new-title-ix-sexual-misconduct-rules-about-and-will-schools-need-to-follow-them