Jauregui Law Firm's Comment on the Proposed Changes to the Title IX Rules 2022 Edition
Raul Jauregui, Comment Submitted on ED-2021-OCR-0166-0001
Agency: DEPARTMENT OF EDUCATION (ED)
Document Type: Proposed Rule
Title: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Document ID: ED-2021-OCR-0166-0001
Biographical and Contact Information
Raul Jauregui, Esq.
UCLA Law School; Member, Pennsylvania Bar.
Plaintiff’s counsel in:
Doe v. Swarthmore College, 2:15-cv-01355 (EDPA, 2015).
Saravanan v. Drexel, 2:17-cv-03409 (EDPA, 2017).
Boye v. Kings, 2021-cv-08874 (Luzerne CCP, 2021).
Respondent’s counsel in a significant number of in-school disciplinary hearings at the college and graduate school level including private and public recipients of DOE funding.
Currently attorney in Philadelphia at The Jauregui Law Firm,720 Arch Street, PO Box 861, Philadelphia, PA 19107, (215) 559-9285, www.studentmisconduct.com
Comment ED-2021-OCR-0166-0001
My concerns about the Draft Proposed Title IX Policy (“New Rule”) stem from the fact that I work with the new and the old rules every day and have been doing so for at least 8 years now. I try to not take a particularly partisan stance; if nothing else because the activists at either edge of this regulatory environment’s spectrum do not reflect my views or my experience. Moreover, that experience, mostly as counsel for faculty and students responding to charges of sexual misconduct in violation of school policies that promise to abide by Title IX, leaves me with one overriding analytical approach:
It is not the complainants and their activists, or the respondents and their defenders, who actually influence the daily practice of student misconduct. Rather, it is the administrators at the schools who implement the practice of student misconduct, and the one national insurer that covers their liability, United Educators, that actually determines these rules and their impact.
This brief selection of my concerns about the New Rules tries to outline what I hope is original: Why I believe that the particular proposed change benefits administrators and, by limiting risk to the school, United Educators, instead of benefiting the ostensibly real parties in interest, the Complainant and the Respondent. My concerns also focus on the potential interaction of the specific New Rules I critique with contradicting case law establishing fairness for respondents in private schools located in two of the three states of the Third Circuit, specifically Doe v. University of the Sciences 961 F.3d 203 (3d Cir. 2020) for Pennsylvania, and Doe v. Princeton, No. 21-1458 (3d Cir., March 31, 2022) for New Jersey. In my view, the New Rules violate the law of the Third Circuit. Should these provisions of the New Rules go into effect in the Third Circuit, I would love to be the first to file stating “I told you so” in this comment.
New Rule §106.2
ALLOWING FOR NEW SUBJECTIVE CRITERIA THAT YIELD DIFFERENT RESULTS IN EACH CAMPUS, NEW RULE §106.2 IMPROPERLY GUIDES A COMPLAINANT ON HOW TO BALDLY DESCRIBE A HOSTILE ENVIRONMENT AT THE EXPENSE OF THE TRUTH.
My now years-long experience interacting with student sexual misconduct processes consistently shows that few Complainants come into the misconduct system with a tangible concern that their environment is hostile because of sex (as opposed to a tangible and describable concern that they have been discriminated against after experiencing assault, for example) and only then do third-party actors shoe-horn their inchoate concern into a tangible claim of the educational environment being “hostile”. That same experience suggests to me that few Complainants (and even fewer Respondents) have any experience on Title IX jurisprudence on hostile environments, or on the models that it has grown from: The theories to state or prove hostile environment discrimination under Title VI (race discrimination by a federally funded recipient) and Title VII (discrimination in employment). Simply stated: Complainants get an excess of help to state their case, and are oftentimes manipulated. They do not need more manipulation, which New Rule §106.2 does.
New Rule §106.2 seeks to alter this already unfair scenario by imparting lessons to the Complainant on how to file a hostile environment complaint. In effect, the new rule further politicizes the Complainants, proposing to ask them leading questions to make sure their claim triggers an investigation against the Respondent on factors that have no set meaning and thus cannot be responded to. This of course only harms Respondents, not the Recipients–because, as Complainants should know but often do not, Title IX does not grant them damages for emotional distress, the main hurt that hostile environments cause. As the Department knows, in Cummings v. Premier Rehab Keller, 2022 WL 1243658 (April 28, 2022), a 6–3 decision authored by Chief Justice Roberts, the United States Supreme Court held that compensatory damages for emotional distress are not available under Section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act 1964, and Title IX of the Education Amendments of 1972.
New Rule §106.2 states that:
(ii) unwelcomed sex-based conduct that is “severe or pervasive” that, based on the totality of the circumstances and evaluated subjectively and objectively, it goes on to create a sing-along definition so Complainants learn how to state a hostile environment, namely, by meeting five relativistic and subjective factors:
• (i) The degree to which the conduct affected the complainant’s ability to access the
recipient’s education program or activity;
• (ii) The type, frequency, and duration of the conduct;
• (iii) The parties’ ages, roles within the recipient’s education program or activity, previous
interactions, and other factors about each party that may be relevant to evaluating the
effects of the alleged unwelcome conduct;
• (iv) The location of the conduct, the context in which the conduct occurred, and the
control the recipient has over the respondent; and
• (v) Other sex-based harassment in the recipient’s education program or activity.
Under New Rule §106.2 a Complainant can follow along and truthfully state “yes I absolutely (i) could not study or concentrate, (ii) because Respondent was on campus all semester, (iii) plus he is older and an athlete, (iv) not to mention that he meets me at seminar every week, and (v) everyone knows that Respondent’s LAX team has a toxic male culture”. Everything in that charge is true but not quite. Thus, under Third Circuit law, it is unfair to have those bald allegations, clearly possible under the new rule, and clearly reflective of the reality of toxic masculinity in College-sports, be the trigger for an investigation that will throw the Respondent into the worst turmoil of his young life. Thus, a proper version of New Rule §106.2 must require and instruct the Complainant on how to state a “plausible” as opposed to a “bald” hostile environment claim. That nuance provides a modicum of fairness to Respondents under Third Circuit law.
New Rule §106.45(B)(2)
ALLOWING FOR A SINGLE INVESTIGATOR MODEL, NEW RULE §106.45(B)(2) LETS THE FOX TAKE CARE OF THE CHICKENS, THE HENS, THEIR EGGS, AND THE FARM.
Benefiting now from years of experience in what has become the student sexual misconduct industry, I can trace the systemic unfairness that student participants experience to basic labor theory concepts: Right now Title IX processes involve interdependent teams with little disagreement but significant self-regulation. In shocking contrast, under New Rule §106.45(B)(2), only one person has power, and the self-regulation vanishes. In the misconduct industry, as in any other, the authority and power of every Title IX employee is based on the formal authority of their position within the Recipient’s hierarchy. The more infallible the employee’s decisions, the more their power within the Recipient. Employees do not admit mistakes because that weakens them. Compare that with the present system, where the Title IX investigator works in a team and is thus checked by a different Title IX decision maker; a labor relation that encourages and fosters both self-regulation and team interdependence. That is the proper way to run a business. And Judges have stated that this tension also causes the kind of improper irreparable bias that allows Respondents to sue Recipients. For example:
“The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions. The dangers of such a process can be considerably mitigated if there is effective review by a neutral party, but here that right of review was substantially circumscribed.”
Doe v.Brandeis Univ., 177 F. Supp. 3d 561, 606 (D. Mass. 2016).
In that context, it is shocking that under New Rule §106.45(B)(2) a Respondent who can find procedural irregularities or evidence of bias must then state them to the one person who is liable for the existence of these errors or biases in the first place: The investigator, now in her decision maker avatar. Simply put, the New Rule expects Respondents with suggestions or evidence that the Investigator-Decisiomaker violated the law, to ask the same person to correct her mistakes or else to violate the law. That is absurd because it asks the investigator to either violate the law or lower her employee prestige. Yet that is the proposal’s naive assumption.
For example, New Rule §106.45(B)(2) assumes that there is no conflict when Respondent states, in response to a review of the investigative file, or again at the hearing, that: “yes I was in California, not in Pennsylvania, on the night of the alleged assault and I proved this to you before, during the investigation you handled, when I gave you the history of my google pins which apparently you did not pay attention to.” While everything in that statement benefits the Respondent and likely exonerates him, it won't quite work, because there is an obvious and unavoidable conflict: The statement requires an admission against self-interest from the Investigator-Decisiomaker who is responsible for the mistake. That, and the myriad other similar statements of precluded exonerating evidence or procedural irregularity I see every day, require someone else to decide; at least someone not personally concerned about the loss of power and prestige that results from admitting to one’s own mistake. Yet:
New Rule §106.45(B)(2) states that:
• The decision maker can be the same person as the Title IX Coordinator or investigator.
It is patently and blatantly unfair for New Rule §106.45(B)(2) to expect the same person who made the mistake as investigator, any mistake in fact, to use evidence from the Respondent of that mistake, to correct the record. Not only that, this expectation improperly shifts the investigative burden of production, currently on the Recipient, to the Respondent. Frankly, New Rule §106.45(B)(2) is just not unfair, it is shocking, except if seen as the ultimate absolver of Recipient liability: There will be no lawsuits because it allows for the Fox who stole the eggs too also keep the farm’s only inventory of the eggs. Thus, a proper version of New Rule §106.45(B)(2) must require a separation of powers between the investigative and the adjudicative. That axiomatic requirement would provide, as it has to this day under the current rules, the fairness which Respondents are entitled to under Third Circuit law.
New Rule §106.46(F)(4)
ALLOWING FOR HERD MENTALITY AND BYSTANDER APATHY TO GO UNCHECKED, NEW RULE §106.46(F)(4) VIOLATES EVERY RESPONDENTS’ DUE PROCESS AND EQUAL PROTECTION RIGHTS AND FAIRNESS EXPECTATIONS.
My now years-long experience interacting with the investigative phase of a sexual misconduct complaint, and with the reports and investigative files that result from that phase, consistently shows that Respondents suffer from systemic bias and from specific deficiencies in their ability to prove their innnocense because the witnesses are either part of a herd mentality that does away with standard legal concepts like every Respondents’ presumption of innocence, and that also impedes exonerating evidence to come out because why would another student want to get exposed to the ostracism and hurt that stems from opposing the herd? Simply put: Complainants only find witnesses that support them; everyone else hides.
The old rules allowed for a correction of this phenomenon through witness cross-examination at the disciplinary hearing. That allowed the Respondent some measure of relief to discredit witnesses. The new rules completely remove this due process mitigator because they allow witnesses to not participate in cross, while empowering the decision maker (who could be the investigator who wrote them down, however accurately) to rely on their statements. Under New Rule §106.45(F)(4) a witness can say “yes I absolutely confirm everything that the Complainant says because I saw it” and then just not appear at the hearing. That testimony would then count to convict the Respondent. Yet, clearly, under Third Circuit law, it is unfair to have that testimony be considered for the hearing. Hence it is wrong when:
New Rule §106.46(F)(4) states that:
• If a party refuses to answer questions regarding their credibility, the decision-maker cannot rely on any statement made by the party that supports their position. The decisionmaker must not draw an inference about whether sex-based harassment occurred based solely on a party’s or witness’s refusal to respond questions related to their credibility.
Incredibly, this same provision in the New Rule does not apply to the party’s witness. Thus, a proper version of New Rule §106.46(F)(4) must state that the same inferential conditions apply for the party and for the witnesses. That is fair under Third Circuit law. The new rule, in contrast, makes the Title IX officer work less, while eliminating the school’s liability, because it does not guarantee for Respondents the cross examination of witnesses.
Dated: September 12, 2022.