What potential changes to Title IX guidance could mean for Columbia.
By Ufon Umanah
Since US Secretary of Education Betsy Devos’s tenure began, concern has grown over the fate of former President Barack Obama’s Title IX guidance, which set protocols for colleges and universities when investigating and adjudicating cases of sexual misconduct. Secretary Devos had remained mostly silent on the leaked draft of proposed Title IX regulations that have circulated through the media and the public since late August, until October 16, when she wrote in response to criticism from Senator Patty Murray, D-WA, that her “efforts will restore [due process] and support all students, including survivors.”
However, the extent to which Secretary Devos’s drafted Title IX regulations would be a welcome development for people organizing for universities to handle sexual misconduct better is unclear. This is in part because the regulations haven’t been submitted for the notice and comment period of executive branch rulemaking. But the regulations as written appear to show limited mandates on how universities can investigate cases of sexual misconduct. They also contain significant rollbacks of the terms and conditions under which an university can be held liable for sexual misconduct cases.
Columbia administrator and legal scholar, Suzanne Goldberg, suggested that Secretary DeVos’s proposals could go in different directions: “The new regulations may set a floor, meaning that schools cannot do less than what the regulations prescribe. Or they might set a ceiling, meaning schools must do what the regulations prescribe, and no more or less.”
If anything, Secretary DeVos seems to love setting floors. Various media outlets have reported that her proposed regulations reduce the burden placed on universities by the Obama administration to take Title IX cases more seriously. In her draft regulation, DeVos offers a definition of sexual harassment as either sexual assault, like the quid pro quo harassment that former Dean of General Studies Tom Harford was accused of, or “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.”
Coverage of the new regulations is right to have has focused on the narrower definition of sexual harassment, which is closer to the standard embedded in Supreme Court case law. As far as Columbia is concerned, the University’s current gender-based misconduct procedures are based on a definition of sexual harassment that isn’t too different from the Supreme Court’s. Columbia’s misconduct procedures also align with Secretary DeVos’s limited definition of conduct that “is intentional, serves no legitimate purpose, and involves contact with parts of another individual’s body that may cause that person to feel degraded or abused” or conduct that “is for the purpose of gratifying the actor’s sexual desire.”
The same applies to Secretary DeVos’s handling of burden of proof for misconduct procedures. The draft regulations thus leave it up to Columbia to decide whether or not to use the preponderance of the evidence standard required by President Obama’s Title IX guidelines, or the clear and convincing standard preferred by some due process advocates. With floor regulations, Columbia could meet DeVos’ narrower standards, and nothing would prevent the University from going above and beyond them. When asked, Columbia Law Professor Katherine Franke’s “guess is EVP Goldberg and Bollinger remain committed” to maintaining Columbia’s Gender Based Misconduct policy as is.
However, while giving universities a choice, the regulations also stipulate that Columbia “must also apply the same standard of evidence for complaints against students as it does for complaints against employees, including faculty.” It’s unclear whether Section 75 of the University Statutes, in which in cases involving losing tenure or a termed appointment, a professor can opt to report to a process using clear and convincing evidence. But, it’s clauses like these that create a ceiling for what Columbia can do. Here the University can make a decision as to how to proceed.
They don’t always have this choice.
The biggest question for Columbia, in light of these draft regulations, is how the University will continue to inform respondents about ongoing investigations. If the language from Secretary Devos’s draft remains, Columbia would have to provide respondents with descriptions of the conduct that constitutes sexual harassment under the University’s Gender-Based Misconduct Policy. Specifically, the complaint would have to list the date and location of the incident, if known and, critically, the “identities of the parties involved in the incident, if known.”
That last part, about known identities, really concerned some survivors, who would prefer to keep “the accuser’s identity as protected as possible.” Anonymity has always been a tricky part of Title IX regulations. In 2011, the Obama Administration wrote that “if the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation.” The administration did permit Columbia to, for example, “redact the complainant’s name and other identifying information before allowing the alleged harasser to inspect and review the sections of the complaint that relate to him or her,” preserving anonymity. This limited the extent to which a perpetrator could retaliate against a charge brought against them, as Professor Geert Bekaert did when he learned former Columbia Professor Enrichetta Ravina reported on his alleged harassment. However, as demonstrated in the Amelia Roskin-Frazee v. Columbia University case, frustration ensues when anonymity comes at the cost of investigating sexual assault.
The draft also mandates cross-examination of parties or witnesses in a hearing setting, which Columbia uses for the Gender-Based Misconduct proceedings. In justifying the decision, the draft describes cross-examination as “the greatest legal engine ever invented for the discovery of truth.” However, the Obama administration discouraged “schools from allowing the parties personally to question or cross-examine each other,” because “allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” Columbia allows complaints and respondents to submit questions to the hearing panel, but the hearing panel asks the questions at their discretion. According to Goldberg, “Nearly every court to address this issue has found that it is a permissible approach for schools to have students submit questions if they choose to the panelists” as Columbia does.
However, the lack of cross-examination has become an aminating issue for the Sixth Circuit of Appeals as well, in which a number of cases, Doe v Baum and Doe v. University of Cincinnati among them. In Doe v. Baum, Trump appointee Amul Thapar ruled that “if a public university has to choose between competing narratives to resolve a case,” it must allow the respondent or their agent to cross-examine, though giving preference in this case to allowing an agent to do the cross-examination. In this, Goldberg notes that “the Sixth Circuit stands alone in its position that schools must allow students or their representatives to cross examination eachother.” In standing alone, however, the Sixth Circuit risks creating a circuit split in a case law of over 100 cases, which increases the chances of a Supreme Court intervention.
While the draft regulations themselves are useful in getting an idea of where the Department of Education wants to go on Title IX, they are still a draft. To that end, the University plans to “review the proposed rules carefully when they come out.” In the meantime, Columbia has to navigate an environment in which students are not prone to trusting its administration or processes.
Or as one student put it, “when has Columbia administration ever done anything more than the bare minimum?”
For Goldberg’s part, universities like Columbia have to point to their “Supportive resources and a investigation and adjudication process that is fair to all students and sensitive to the issues involved” to move past the negative headlines generated by multiple lawsuits in the past year. Goldberg also pointed to “alternative forms of dispute resolution” for situations in which “a student who has experienced gender-based misconduct may prefer to have a mediation process or enter a restorative justice process and that is available for most types of gender-based misconduct complaints” that don’t involve sexual assault.
We won’t achieve clarity on the issue, however, until DeVos releases the final regulations for review.