New England Student Defense
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By Jonathan Cook

The notice and comment period is over. The Department of Education is currently reviewing and responding to the comments (over 100,000 public comments were submitted), which could take as little as a few months or as long as a year. However, I do not anticipate this administration to make any changes before posting the final rules. This is troubling as a student defense lawyer and as a parent.

I have represented both complainants and respondents in sexual misconduct proceedings allover the country. I have seen credible allegations, false allegations, and some about which I cannot be certain. While I agree with some of DeVos’ proposed changes that provide the accused with fundamental due process rights, like ensuring the accused are able to cross-examine their accusers (majority of colleges and universities currently allow for this by way of submitting questions through a hearing panel chair), and ensuring the accused is able to review ALL of the evidence (I have witnessed several occasions where the school has erroneously withheld evidence it deemed “irrelevant”), the proposal discussed below goes too far because it strips a large percentage of alleged victims of sexual misconduct of their right to some kind of grievance process on campus. It also undercuts the spirit of Title IX and will create more problems for schools. Here is my take in a nutshell:

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The devil is in the details…

Expanded version: Betsy DeVos has proposed that schools would be required to investigate complaints ONLY if they occurred on campus or other areas overseen by the school.

Title IX mandates Colleges and Universities to promulgate policies and procedures to prevent and remedy hostile educational environments created by sexual harassment and sexual violence. This includes providing an on-campus grievance process for alleged victims of sexual misconduct occurring off-campus, when the alleged perpetrator attends the same school. If DeVos has her way, there will no longer be a required grievance process for alleged victims unless the alleged conduct occurred on-campus or at a school-sponsored event. For many students, a hostile educational environment that could have been prevented, may now be inevitable.

According to the proposed rules, “determining whether a sexual harassment incident occurred within a recipient’s [college or university receiving federal funds] program or activity, courts have examined factors such as whether the conduct occurred in a location or in a context where the recipient owned the premises; exercised oversight, supervision, or discipline; or funded, sponsored, promoted, or endorsed the event or circumstance."

Just because nothing in the proposed rules prevents a school from implementing disciplinary proceedings for off-campus conduct, doesn’t mean it will happen. It means that the decision to investigate complaints of this nature are discretionary and thus application will be inconsistent.

Why is this such a big problem? Because whether or not sexual misconduct, including rape, occurs in a school dorm room or in off-campus housing, the parties still go to the same school and occupy the same learning environment! (note: colleges and universities do not have jurisdiction to adjudicate claims against non-students) Of course sexual misconduct, including sexual assault, commonly occurs off-campus and not during school sponsored events. How can a school take real steps to help ensure an educational environment free from hostility when they cannot provide a grievance process? They can’t. Other than perhaps imposing a mutual no contact order, this proposed change creates a loophole ripe for the following scenario to become a regular occurrence:

Student A alleges being raped by student B at Student B’s house, which is off-campus, after a party that occurred off-campus, and was not sponsored by the school. Under current rules and guidelines, Student A may file a complaint with the school’s Title IX office and the school will typically charge Student B (Respondent) and impose interim measures to help ensure Student A’s learning environment is free from hostility created by having Respondent in the same classes, etc. This almost always includes a mutual no-contact order and additional measures to keep the parties separated pending an investigation and disciplinary process. Forget interim measures, Devos’ proposal strips students alleging sexual misconduct against fellow students of any grievance process simply because the act is alleged to have occurred off-campus. The parties still have to go to school together! Consequently, complainants like Student A will now be forced to attend classes, even if that means with the Respondent, who could potentially be Student A’s rapist.

Why can’t complainants just go to police? They often do. But complaints of this nature rarely involve witnesses and almost always involve alcohol. As a result, its hard to prove culpability, and the police rarely follow up with investigations. At least a disciplinary process at school will allow the school to take fair measures to try and maintain an educational environment that satisfies Title IX.

Campus disciplinary proceedings continue to be skewed against the accused and have been at least since Obama’s 2011 Dear Colleague letter. The proposed changes help in that area, but this proposed change goes too far because it removes current disciplinary proceedings, albeit imperfect, for allegations of off-campus conduct. Balance the process, but don’t eliminate it for certain students. DeVos has provided no explanation for how colleges and universities will be able to satisfy Title IX requirements when hostile environments are created by off-campus misconduct. I have a sneaking suspicion that she never will.

Jonathan Cook