New Trump Administration Guidelines on Campus Sexual Assault

One of the issues I have been following closely over the past decade has to do with how universities respond to allegations of sexual harassment and assault. Until the Obama administration, universities had policies that varied dramatically, from formal hearings with lawyers to informal interventions by friendly Deans. In 2011 the Education Department issued a "Dear Colleague" letter that tried to impose some uniformity. In particular, it required that universities have written policies regarding sexual harassment and assault, which include formal investigation by some designated official, and that they stick to those policies.

This led to a big legal mess in which more than two hundred colleges and universities were sued for how they handled these cases. These suits came from both parties, the accused and the accusers, who all felt that they were not given a fair hearing. I wrote about this in detail here.

One of the first things Betsy Devos did after becoming Secretary of Education was to institute a review of this policy. New guidelines were issued in draft form in 2018 but they attracted more than 124,000 public comments so it took until now for those to be worked through and the final guidelines issued.

First, this will not solve the problem; acquaintance rape is a devil's problem that will always defy a clean solution, and since we as a society do not agree on what sexual conduct is acceptable we can hardly count on universities to sort that out. Second, it will cost even more money and take up even more time. For example, universities used to be able to assign a single official to investigate a case and give a verdict, but now the verdict will have to be given by a second official or, better, a committee. There must also be a right of appeal if either party thinks the case was mishandled, which means there must be some third person or group to serve in that role. If you compare the official summary of the new policy to the Dear Colleague letter, the new version is at least three times as bureaucratic and technical. I would complain but this just seems to be the way of our world. When confronted by conflict, we respond by enlarging the bureaucracy.

The main changes are as follows:

1. Institutions must presume that those accused of sexual misconduct are innocent at the start of the investigation, which means that accused people cannot be asked to leave campus while the case is being investigated. So accusers who want to avoid the people they have accused have to leave campus themselves, which was one of the major complaints victims' rights groups had about the situation before 2011. (Remember that the whole point of Title IX is to provide women equal access to education.)
2. Colleges can decide whether to use the "preponderance of evidence" standard, as is normal for civil actions, or the "clear and convincing" standard, which is normal for criminal actions. I don't understand this mingling of standards, and I bet this will be litigated in court.
3. First Amendment free speech rights are specifically called out as immune from Title IX complaint. So if you advocate for a return to the patriarchy as a political policy, that speech cannot be construed as sexual harassment.
4. Universities should use the narrowest of the government's several definitions of sexual harassment, which is that to be considered harassment behavior must be "such than an objective person would find it severe, pervasive, and offensive." Since there are no objective people when it comes to these matters, I find this one unhelpful, but the "pervasive" clause does make it very hard to file a complaint for a single utterance. 
5. Universities cannot carry forward investigations based on second-hand referrals if the victim does not want to proceed. Many institutions (including my company, as they remind us all the time) require that anyone who becomes aware of harassment or abuse must report it, and universities have been accused of expelling people for conduct that the alleged victim did not find problematic.
6. No testimony can be entered in the record unless the witness gives it in a "live hearing" and a representative of the other party is present to cross-examine. This has long been one of the flash points of the debate, and the new rules come down squarely on the side of cross-examination. 
7. Schools may offer the parties informal adjudication rather than a formal hearing if both parties agree. (This point, which is standard in civil proceedings, is important because some universities thought the Dear Colleague letter forbade it, although that was never actually clear.)

The general effect of the new standards is to move these matters from a civil complaint about the educational environment to something much more like a criminal trial of the accused. This is what the ACLU and men's rights groups have been fighting for, on the grounds that being expelled from college for rape is a serious matter and ought to be treated that way. Opponents say that now vulnerable young people can't complain about harassment without being willing to face cross-examination by the accused's lawyer, which just adds more pain to what they are already suffering.

Notice how much this requires of the universities: they must have investigators, judges, and what amounts to court rooms, including the option for the parties to be in adjacent spaces connected by video, and they must provide advocates for those who don't bring their own lawyers, etc. One of the complaints made by some universities is that the new rules seem to require them to hire more staff for their Title IX offices by August 14 even though they are 1) closed and 2) in a financially perilous situation. The use of the narrow standard for sexual harassment has also drawn opposition from educators who think universities have a right to impose a higher standard of conduct than would be expected on say an oil rig.

I find myself skeptical of the whole business. If the point is to protect the accused from false conviction, well, consider how often our actual criminal justice system fails at that task. As Aristotle remarked a long time ago, writing the laws is useless if somebody else controls the judges.

We don't know how to respond to problems without layering procedures on top of procedures, rules on top of rules, oversight on top of oversight. We do not trust anyone to be wise or fair. Maybe we just can't, but it makes me sad to think about that.