Deep Dive Episode 125 – The New Title IX Rules
In 2017 the Department of Education withdrew the Obama administration’s guidance documents on Title IX sexual harassment. The next year it issued a notice of proposed rulemaking under the Administrative Procedure Act. The department received more than 124,000 comments on the proposal and held meetings with many interested parties. In May, the Department released its new rules – the first such rulemaking on a major Title IX issue since 1975.
The new rules require colleges to use more robust procedures when adjudicating student-on-student allegations of sexual assault, including by using a live hearing where representatives of each side can cross-examine adverse witnesses. The rules also narrow the definition of sexual harassment cases that schools must address under Title IX, and limit university liability for off-campus events.
Lawsuits from blue-state Attorneys General and activist groups hope to block all or part of the rules. Three of these lawsuits have sought preliminary injunctions, on grounds that the rules will make it harder to eradicate sexual harassment on campus. These legal challenges also have minimized concerns that colleges currently deny accused students a meaningful chance to defend themselves.
Civil liberties advocates have long advocated a fairer approach to Title IX adjudications, but they recently gained important support in the form of briefs backing the new regulations filed by 15 states, including Texas and Florida. These red and purple states argued that Obama-era policies “trampled the rights of students and created a false choice: either combat sexual harassment or protect constitutional liberties. We propose a different option: do both.”
This live podcast discusses and analyzes what this new rulemaking means for students, schools, potential legal challenges, and future administrations.
Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.
Micah Wallen: Good afternoon and welcome to The Federalist Society’s Fourth Branch Podcast for the Regulatory Transparency Project. My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at RTP at The Federalist Society.
As always, please note that all expressions of opinion are those of the guest speakers on today’s call.
And today we bring you a great discussion entitled, “The New Title IX Rules.” For our moderator today, we are pleased to have Linda Chavez, who is the Chairman of the Center for Equal Opportunity. Linda will be introducing our panelists today.
If our audience would like to learn more about all of our speakers and their important work, we encourage you to visit regproject.org where we have listed all of their bios.
In a moment, I will turn it over to Linda to get us started and moderate the conversation. After opening remarks from our panel and discussion, we will then go to an audience Q&A, so please be thinking of any questions you’d like to ask of our speakers throughout the program. Thank you all for joining us. And Linda, the floor is yours.
Linda Chavez: Thank you very much, Micah. In 2015, the Obama administration issued highly controversial guidance on sexual harassment under Title IX of the 1972 Education Act. In 2017, the Department of Education withdrew the Obama administration guidance and the following year, it issued a notice of proposed rulemaking under the Administrative Procedure Act. The Department received more than 124,000 comments on the proposal and health meetings with many interested parties.
In May, the Department released its new rules, the first such rulemaking on a major Title IX issue since 1975. Today’s discussion will update information from our previous conversation on this topic in March, and we will provide analysis of what this new rulemaking means for students, schools, and potential legal challenges as well as for future administrations.
We’re very pleased to be joined today by Stuart Taylor, Jr., who is an author and freelance journalist focusing on legal and policy issues, including unfairness and excessive punishment in the criminal justice system. He’s co-authored three critically acclaimed books, and has written since 1980 for leading publications, including the New York Times, the National Journal, News Week, and RealClearPolitics. In 2012, Richard Sander and Stuart wrote Mismatch: How Affirmative Action Hurts Students Its Intended to Help and Why Universities Won’t Admit It. And in 2007, Taylor and KC Johnson wrote Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case. In 2017, KC Johnson and Taylor wrote The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.
KC Johnson, who is also joining us today, is the Professor of History at Brooklyn College and the CUNY Graduate Center. With Stuart Taylor, he has co-authored two books previously mentioned. And his writing on the issue had also appeared in The Washington Post, The Wall Street Journal, The LA Tines, and commentary. And without further ado, I’m going to turn it over to Stuart first to make a five-minute presentation, and then to KC Johnson. And then we will open it up to your questions. Stuart?
Stuart S. Taylor Jr.: Thank you, Linda. The new rules that we’re talking about are due to take effect a week from today. They will complete Betsy DeVos’s dismantling of policies inherited from the Obama administration and their centerpiece of her tenure of Secretary of Education. DeVos claims that the Obama policies, all too eagerly adopted by the nation’s colleges, had spawned kangaroo courts that denied justice to wrongly accused students while also often mistreating many sexual assault victims.
The Obama administration policies required colleges to follow a list of procedures, every one of which would make the findings of guilt more likely. Those polices also encouraged colleges to have a single campus bureaucrat act as investigator, prosecutor, judge, and jury. And if that doesn’t sound fair, you’re on the right track.
Collectively, these procedures amounted almost to a de facto presumption of guilt. And most colleges were even more unfair to accuse students than the Obama OCR required. While the Obama rules had discouraged campuses from allowing cross examination, for example, almost all colleges went even further by entirely baring accused students and their representatives from cross-examining accusers with their witnesses. Their rationale was that being required to answer skeptical questions would be so traumatic for accusers that they would not report sex crimes or misconduct.
As KC will detail, the campus kangaroo courts have not fared well in most of the hundreds of lawsuits by accused young men against colleges that they say railroaded them, often with life-changing consequences. The new rules required details, procedures to be more fair and more likely to bring out the truth. Most important, the new rules, like a growing number of court decisions, which KC will discuss, will require colleges to determine the truth of allegations through a live hearing at which representatives of both the accuser and the accused have the opportunity to cross-examine adverse witnesses, including the accuser herself and the accused, of course.
This rule reflects the Supreme Court’s oft-repeated hue that cross-examination is the greatest legal invention ever invented for the discovery of truth. The new rules also require that accused students be presumed innocent and that both parties be given access to all of the allegations and relevant evidence. These seem like basic fairness precautions, but many colleges had not used them until now.
The rules further require that college investigators and adjudicators be impartial, that they eschew sex stereotypes, avoid prejudging the facts, be free of conflicts of interest, and that the training rules for investigators and adjudicators, which have long been closely guarded secrets but have been shown to be accuser biased, be posted on the college website. At the same time, the new rules specify that colleges can continue using, as part of their own internal campus disciplinary regimes, accuser-friendly definitions and procedures that the new rules forbid in Title IX proceedings. Colleges that do this will, however, apart from some confusion about these two parallel systems, they’ll run the risk of losing lawsuits, calming that their internal rules discriminate against accused males in violation of Title IX.
The new rules have been widely denounced, often in hyperbolic terms, by Democratic officeholders and politicians. They see women’s groups and universities as part of their political base. Few Republican leaders have defended the rules, and Joe Biden has promised to dismantle them if elected.
What will be the impact if these new rules survive the election and the four federal lawsuits that have been brought against them by 18 blue-state attorneys general, activist groups, and by the ACLU? Much will depend on whether the courts take a firm hand in enforcing the rules against the many colleges that would like to continue their guilt-presuming ways. If the courts affirm, fairness should start breaking out.
Colleges complain that the procedures required by the new rules will be expensive. But it seems like that the new rules will save colleges that comply with them more than they cost. That’s because the rules will make colleges less vulnerable to lawsuits brought by accused students and accusers alike. It will obviously be harder for accused students to prove unfairness if colleges comply if the new rules and are fair. In addition, it will also be harder for some accusers to sue their colleges because, in order to protect the freedom of speech, the rules narrow the definition of verbal sexual harassment for which colleges can be held liable. They also limit college’s liability for off-campus events.
So why, might you ask, are so many colleges so unhappy with new rules that seem likely to reduce their liabilities? My best guess is that the college presidents and other campus administrators know that welcoming the new rules would get them into trouble with those who have the power to ruin them: activists, students, and faculty, Title IX coordinators, and the news media. Thank you.
Linda Chavez: KC?
KC Johnson: So as Stuart mentioned, the rules have generated considerable controversy and substantial legal challenges. I’m going to talk for a couple minutes about those and then a couple minutes about developments at appeals courts in the last few months regarding accused student lawsuits.
There have been, as Stuart mentioned, four lawsuits filed against the rules: one by the ACLU, one by the National Women’s Law Center, one by the State of New York, and probably the highest profiled one by 18 blue-state attorneys general. Three of those lawsuits, all but the ACLU one, had sought preliminary injunctions seeking to enjoin the rules from coming into effect one week from today. Those complaints are — there’re minor differences between the complaints, but there are similar patterns that the opponents of the rule have offered in court.
First, they have claimed that the rule improperly narrows the definition of sexual assault, largely by using the definition that the Supreme Court itself has: severe and pervasive conduct, and as a result, would force schools to allow sexual harassment and some kinds of sexual assault to go unpunished, and therefore would perpetuate, rather than stop, gender discrimination on campus.
Second, the blue states and the NWLC have argued that the procedural fairness provisions of the rules violate Title IX. The NWLC lawsuit, for instance, complains that a requirement that accused student be presumed innocent violates Title IX, which is, when you think of it, a really remarkable proposal. But the heart of the criticism in these lawsuits is against cross-examination and the argument that a system that ensures that an accuser will have to defend herself before a tribunal and might face skeptical questions will decrease reporting, and therefore increase instances of unpunished sexual misconduct on campus.
If you read these complaints, there’s very little difference in the argument as would apply to civil suit or even a criminal suit. So these arguments, especially coming from attorneys general, are quite broad.
And then, third, the complaints have argued that it is unreasonable for the Department of Education to expect implementation of this rule in the midst of a pandemic.
The NWLC lawsuit, for procedural reasons, has gone quite slowly, and there’s not going to even be a hearing on it until September, so it’s unlikely to affect the implementation of the rule. The New York State lawsuit – oral argument for that was last Friday. The court seemed somewhat skeptical of the claims.
And so where the action is at is in the 18 blue-state attorneys general lawsuit, which was argued two weeks ago, where the court asked tough questions of both sides, and it was not entirely clear what the final ruling would be. It is entirely possible that what we’ll see here is a decision that will simply allow the rules to go into effect or possibly enjoin the narrow definitional aspect of the rule, but allow the rest of the rule to go into effect. But, of course, it’s at least possible that the rule will be enjoined entirely.
If the rule goes into effect, I think for the reasons that Stuart pointed out, litigation against colleges will become far less likely, at least by accused students in the coming years because the rule basically will require fair procedures. But if the rule is enjoined or if a subsequent administration basically chooses to gut the rule, then we get to the issue of the unfavorable decisions. There have been, to date, 184 unfavorable decisions to colleges and universities in lawsuits filed by accused students since the Dear Colleague letter, including three major appeals court decisions in the last two and a half months – one in the Third Circuit, a ruling by Judge Porter in a case involving a school in Philadelphia called the University of the Sciences, required that even private institutions that promise fair procedures must provide an accused student with a hearing in some form of cross-examination. In addition, the ruling created a more plaintiff-friendly pleading standard for accused students.
A ruling in the Sixth Circuit, a case against Oberlin College, which already — a circuit that already requires cross-examination, at public universities made what was the common sense point in the opinion written by Judge Kethledge that a wholly illogical opinion in the Oberlin case, the accused student was found guilty of having sex with an incapacitated student, even though the accusing student’s only evidence for incapacitation was a statement that she was not sober in the midst of a 75-mintute exchange with the student – not the normal definition of incapacitation. The court held that in cases where the outcome is wholly illogical, gender bias can be presumed.
And then last week, a decision for the Ninth Circuit, in an opinion written by Judge Milan Smith, in a case involving Arizona State University, also adopted the more plaintiff-friendly pleading standard in these cases that was pioneered by Judge Barret in the Purdue decision in the Seventh Circuit.
So moving ahead, the question is if the rules are either enjoined or subsequently undermined, that the assumption here is that there can be a return to the Obama approach, which Stuart outlined in his presentation. The problem with this, however, is that the Obama guidance came from 2011, 2014, and 2015. Since then, the First Circuit, the Second Circuit, the Third Circuit, the Sixth Circuit, the Seventh Circuit, and the Ninth Circuit all have issued rulings tamping down on college kangaroo courts, and there’s a major case in the Eighth Circuit involving a lawsuit at the University of Arkansas that was argued in January where the panel has yet to issue its opinion, so it’s at least possible that the Eighth Circuit will join this list.
So one of the questions, I think, moving forward in this area is the intersection between federal pressure, either pro-accuser or a more balanced approach; media, and campus pressure, which almost always is pro-complainant in this process; and the role of the courts, which have become increasingly skeptical of the fairness of university procedures in this area. Thank you.
Linda Chavez: Okay. Well, thank you. I did want to draw some attention to an unlikely source of support, tempered though it was, and that was the Washington Post editorial that took place, I guess it was on May 19th. And in their editorial, they did, of course, make the point that they didn’t like the fact that these rules were issued during a global pandemic, and they also thought that the Department should’ve taken more to heart some suggested changes, including how sexual harassment is defined and how victims are cross-examined. But let me just read a sentence or two from the editorial. It said, “The old guidance was in need of improvement, and the new Title IX rules do not provide license for schools to ignore sexual assault and harassment. The revisions, as we observed, when the proposal was out for public comment in 2018 includes some changes that would bring needed balance to disciplinary proceedings.”
So from the presentations we’ve heard, both from Stuart and from KC, it does not look like things would return back to the Obama understanding in 2015. But I’m happy to hear others’ questions on this matter. Do we have any questions, Micah?
Micah Wallen: Yes. We’ve had a few questions come through the line, so we’ll proceed to our first caller.
Caller 1: Yes, good afternoon. One of the questions I’ve heard raised in these contexts — or assertions, rather, is that there are no false accusers. That false accusation is extremely rare. And apart from how one determines that without adjudicatory process in the beginning, I’m wondering if there’s any particular response that advocates of the new rules would have in rejoinder to that accusation.
KC Johnson: It’s an excellent question. There are a couple of general issues here. The first is that studies of false accusations in sexual assault tend to be done by advocates in the area and tend to focus on criminal cases, which of course have a higher burden of proof, and at least have a penalty of if you file a false claim, you, in theory, can be prosecuted. There’s no such deterrent in the campus proceedings.
But the few studies of campus proceedings in this area have shown really recurring patterns. That there are relatively small numbers of outright false claims. And false claims in this area are defined as claims that can be provably false. So, for instance, in Stuart and I’s background, you can think of the Duke Lacrosse case where the allegation was that a student who was on an ATM video a mile and a half away from the house at the time of the alleged incident was the alleged rapist. Obviously, that’s a false allegation. Even in Durham, North Carolina you can’t be in two places at one time. So it’s a very, very high bar.
Then there are somewhat larger number of cases that tend in these studies to be seen as true. But true is defined in a quite broad fashion. It’s generally defined as having enough evidence to refer it to a prosecution. Virtually any other context, we don’t assume that simply because someone is charged, the allegation is true. But even if we want to assume it in this context, the studies tend to show that the majority of cases, somewhere between 50 and 60 percent in these false rape rate studies, are ambiguous. And that’s where the procedures become more important, trying to find a way in cases where—and there’s no typical case, but to give a kind of generic case in the campus context—it’s two students, both of whom have been drinking, where the sexual incident begins with unambiguous consent. And then the consent becomes ambiguous at some point in the middle of the incident.
And in these sorts of cases, being able to challenge the veracity of both sides is critical because there’s no way, absent meaningful procedures, of determining the truth, other than simply accepting the allegations.
So I think the biggest problem with this emphasis that, “Oh, there aren’t many false cases, and therefore we should simply assume that everything else is true,” is that the statistics actually don’t say that. What they show is that most of these cases, even in studies done by victims’ rights advocates, show that in the campus context, the outcome is ambiguous. And in those kinds of cases, procedures really do matter for fairness.
Stuart S. Taylor Jr.: I might just add that sometimes the outcome — the evidence could be said to be ambiguous but it’s telling, for example, the number of cases in which the accuser—typically a female—said she had sex several times with the accused. And the first time it was consensual. But the second time it wasn’t. And the third time it was. In other words, kept going back, even after supposedly having been raped.
Now, in the old days, that might have been seen as a credibility problem. But in today’s campus tribunals, it’s not unusual.
Linda Chavez: Thank you. Next question.
Larry White: Hi. Thank you for the presentation. My name is Larry White. I’m calling from Ankara, Turkey. I actually teach at a university. I’ve never had any kind of experience with this with regards to students, but I have seen two American law schools push out law teachers for similar kinds of things. Just as observation.
But my question is I think there’s been a great move back to balance here in this issue. What do you expect to be the counter push to the new rules? Do you expect any kind of concerted effort to try and reestablish the old ones? Or is the middle ground here going to seem to be the new normal, I guess. Thank you.
Linda Chavez: And I will throw this one to Stuart.
Stuart S. Taylor Jr.: Yes. I think the big question, the lawsuits could throw a monkey wrench into the new rules. But it’s more likely that the election will. If Joe Biden is elected president, I think that he’ll do — I mean, he’s more or less promised to do everything in his power to get rid of the new rules. Now, he can’t just say, “I’m getting rid of them.” They have to go through a process because the rules were created through a process that took more than two years of very careful process with more than 2,000 pages, I think, of discussion, and so forth. But I do think that that would push back in the direction of the old rules, except that there are now so many important court decisions, as KC has indicated. And we may soon—not too soon—but we may eventually see a Supreme Court decision that make it very hard to justify going back to the old rules. And that may lead things to settle somewhere in between. Thanks.
KC Johnson: One other thing that I think that’s worth pointing out on this area of what kind of pushback we might see. Some schools have now already implemented their own campus procedures in response to the rules. Again, as Stuart pointed out, the rules as a whole become effective next Friday. So all campuses will have to do that.
And what we’ve seen at some schools—Princeton is an example, the University of Minnesota is an example; so these two have both finalized their policies—is that with regards to sexual assault, under the rule, the rule says that schools must adjudicate sexual assault allegations that occur in an educational program or activity. So basically on campus or in a dorm or maybe on a student trip or in a fraternity or that kind of thing. But that schools do not have any obligation to adjudicate sexual assault if, say, the two students are on spring break in Florida and the school is the University of Pittsburg, or something like that.
And what campuses have done—it’s quite remarkable in many ways—is they’ve actually set up two track procedures to deal with these, rather than simply say, “All right. We’re going to handle these off-campus sexual assault cases, but we’re going to use the same fair procedures that the rules require. For these non-campus sexual assault cases, they’ve actually retained the pre-existing rules. So if you’re a student, for instance, at Princeton, you’re accused of sexual assault that came in a dorm, you’ll have to go through a hearing. The hearing will have to involve some cross-examination. If, by contrast, you’re in a hotel room in Philadelphia with a female student and she accuses you of sexual assault, you’ll not get any hearing at all.
So this, I think, will be the next area. My sense is that universities will be extremely vulnerable to litigation when they give fair procedures to some accused students and not to others. But it’s a good example of the real pushback that Stuart was mentioning earlier that we’ve seen from universities in this area. They generally welcomed the Obama guidance, in many ways it went beyond what was necessary from the Obama guidance. Here, they have been resolutely opposed and have done everything they can, even when implementing, to do so in the most begrudging way possible.
Linda Chavez: Thanks. Do we have another question?
Caller 3: My question, actually, was going to be about if there’s a Biden presidency, but I guess if there is a Biden presidency and he does go through rule and comments, undoes the whole thing, what is the likelihood of something getting to the Supreme Court? I mean, there obviously is a circuit split on so much of this. But can you kind of game that out for us?
Linda Chavez: Yeah, sure.
Stuart S. Taylor Jr.: This is Stuart Taylor. I think it will get to the Supreme Court sooner or later. KC mentioned all of the decisions by courts of appeals. There’s already a bunch of them. There’s probably already some kind of conflict between some decisions and other decisions that is the sort of thing that gives the Supreme Court a reason to take a case to resolve the conflict. And they’re going to be more cases, and therefore, I think it’s very likely to get to the Supreme Court.
On the other hand, it’s a very long process. You’ve got to have the appeals court decision and then a long period of time before people to decide whether to appeal to the Supreme Court. And then a long period of time while the Supreme Court decides whether to hear it. So probably we might be two years from now before you actually see a Supreme Court decision or even three years from now. I think we’ll see it eventually.
KC Johnson: Yeah, I think there are two — I would echo Stuart’s point. I think there are two possibilities here. So the first is, as the caller mentioned, is if we have a Biden presidency, Biden would certainly move to undo the rules. And this new Biden rule could be subject to legal challenge.
My sense, here, is that it’s very, very difficult, for reasons I suspect we all understand, for universities to implement new procedures in the middle of an academic year. So if the rule goes into effect next week, it’s obviously going to be in place for the 2020-2021 academic year but probably would remain in place for the following academic year. I just don’t see how a Biden administration could write a new rule, go through notice and comment, and get the new rule implemented by June or so of 2021. So there’d be this two-year process, and it would be, I think, harder for universities to pull back.
Second, you know, eventually there is going to be a clear circuit split, and there’ll be one of these accused-student lawsuits that will make it to the Court. There is a lawsuit from a group of accusers — there’ve been far more litigation in this area by accused students and by accusers. But there’s an appeal that’s — where they’re requesting cert from the Supreme Court in a case out of the Sixth Circuit involving Michigan State by three alleged victims. And this was a very boldly written complaint where the underlying premise is that Michigan State’s failure to either find the alleged perpetrators guilty or in the one of the three cases where the student was found guilty, Michigan State’s refusal to expel him. They only suspended him; that that, in effect, violated Title IX by making these accusers vulnerable to continued sexual harassment. Of course, the question was whether they ever experienced sexual harassment at all.
And so even though, for the most part, these alleged victim Title IX lawsuits don’t really intersect with the accused student lawsuits, this one does. And so if, for whatever reason, the Supreme Court granted cert on this—and there is something of a circuit split on the accuser side in terms of pleading standards—that would, in effect, get at least some of these issues before the Court in its next term.
Linda Chavez: Let me sort of follow up on that, and then I’ll defer to see if Micah has any other callers who want to ask questions in the queue. The presumption is that if a new administration wished to change these rules that they would have to go through, under the Administrative Procedures Act, the rulemaking process. But as we’ve seen, not only during the Obama administration, but in the current administration presidents issue executive orders that may or may not follow through with those normal procedures. Is it possible that the Office of the President would attempt to intervene in a way by issuing an executive order, and I guess this is a question for either of you, whether or not that has any realistic way of intervening the process and speeding up revoking these?
Stuart S. Taylor Jr.: This is Stuart. I think that an executive order, flat out executive order, would be unlikely to succeed. It would be hard to say, “This is a national emergency,” the way President Trump says every time he does a border order. It’s kind of a garden-variety, administrative process. And the Administrative Procedure Act has very specific rules on what needs — what an agency or federal government needs to go through by way of procedures—notice and comment and all that—before it can change the law in one of those areas. I think the President trying unilaterally to change it and saying, “I don’t care about the method of the Administrative Procedure Act,” would be unlikely to fly.
KC Johnson: It’s a great question, and if you go to the Biden website, and Biden has also issued a statement on this—I think it was on Medium—Biden has said what he’s planning to do. And what he said is he’s going to undo all of this and to reissue the Obama-era guidance from 2011 to 2014, without mentioning the fact that there would be rule in place and without mentioning the fact that there’re are all of these court decisions. In some ways, it’s kind of extraordinary. This is an issue where Biden has been actively involved in for nine years. He was the Obama administration’s point person on this. And to the best of my knowledge, he’s never acknowledged that there’s been even one unfavorable decision in this area. It’s almost as if he’s pretending that these court decisions don’t exist. It’s very strange.
So the stated policy from the Biden campaign, and this is actually something I keep waiting for in education or a higher-ed reporter to ask the campaign on this and to date they haven’t done so, is that they could issue new guidance very early in a new administration, and that that guidance would somehow trump the existing regulations, which of course is not how the APA works and it’s not how the Executive Department works at all.
So I think that it’s clear that a Biden administration would send a signal to colleges and universities that look, we’re not going to enforce these new rules particularly aggressively, so if you want to violate them, you don’t have to worry about our Department of Education upholding an administrative Title IX complaint against you. But the stated position of the campaign, which is that guidance can trump existing regulations, is just baffling to me.
Linda Chavez: Yeah. And one wonders whether or not some sort of national emergency of rampant sexual harassment on college campuses might not be invoked as a national emergency. So Micah, do we have any more questions in the queue?
Micah Wallen: I see one question just came through, or a few did, so we’ll move to our next caller.
Caller 4: Yeah, thanks for taking my question. Can the panel help me understand the hostility involved here—I hate to say it—against men, but this might be a safe place to ask this? And I heard at the beginning of the program that the reason why colleges are afraid to implement this new rule is that there are people who could destroy them. That’s a remarkable statement, but I think that might be a true statement.
So what is actually the heat behind this? They always say in politics it’s never about what they say, it’s about — and we’ve got the disparate impact here. This affects men 95 percent of the time, and we know if we pick up any kind of a newspaper, that if any rule or any criminal statute or any pattern of prosecution seems to have a disparate impact on some particular group, the whole thing is suspect and it’s gone. And none of that works here.
So I’m not a conspiracy buff because I find that it’s difficult for four adults to figure out what movie they’re going to watch on the TV that night. So I can’t figure this out. Can you — I hate to just walk away thinking this is just part of the war on men and more of Gloria Steinem who famously said that a “woman needs a man like a fish needs a bicycle.” Can you help me understand this better? I’d like everybody that has a thought on that to try to help with this. Thanks for taking my question.
Stuart S. Taylor Jr.: Well, I sort of shared my hand on this already as the caller pointed out. I think that the people who run the colleges are much more afraid of being attacked for violating women’s rights than for violating men’s rights, let’s say. I don’t think they’re at all afraid of being attacked for violating men’s rights because the groups that claim men are being discriminated against by colleges have both, in these Title IX proceedings but also in other ways—single-sex scholarships, single-sex programs, single-sex this, single-sex that—there’re a whole lot of Title IX complaints that have been filed by a couple of people that are getting taken seriously by the current administration that suggests that there’s actually systematic — we’ve gone from systematically discriminating against women on campuses, which we certainly used to do, to systematically against men.
I think there’s something to that. I’m not sure KC sees it the same way I do, so I’ll yield it to him.
KC Johnson: I think there’re a couple of — it’s another excellent question from the caller. I think there’re a couple of underlying things. If you were to ask a fair-minded university administrator who has enacted these procedures, “Give me a non-gender bias rationale for them,” I suspect it would be this: there are two underlying assumptions behind these policies. The first is that campuses are simply awash in violent, sexual crime; that hundreds of thousands of female undergraduates—this is the one-in-five statistic that often gets cited in this area—that hundreds of thousands of female undergraduates every year are sexually assaulted on campus.
Now if you look at actual figures, even reports to the Title IX office, much less criminal figures, there’s nowhere near hundreds of thousands. So you might ask well, maybe there aren’t hundreds of thousands but that’s not the assumption that is made. Instead, the assumption is that the reason that we don’t find out about these is that victims are afraid to report. And so the second underlying assumption is that only through a system in which a complainant can be assured that she will never seriously challenged in the version of events that she’s offering will sexual assault victims report these offenses.
Now, the first point — you can’t disprove it because, of course, you have to kind of prove a negative. The second is, I think, extremely troubling because it suggests that procedural fairness in some way constitutes gender discrimination. And if you think of all of the changes in American society over the last several months, in virtually every other context we’ve seen this widespread recognition that fair procedures are critical in terms of societal advancement. Here, there’s the reverse. So I think that would be the non-gender discrimination.
The second explanation, and this was offered long ago when fire was created by two of my heroes, Alan Charles Kors and Harvey Silverglate, is that advocates of campus due process don’t stage sit-ins in the president’s office. And on this issue, the only pressure that comes from campus comes from victims’ advocates, comes from faculty who are sympathetic to the victims’ rights cause, and critically, comes from the internal Title IX bureaucracy on campus as a whole. Harvard has almost 60 Title IX bureaucrats currently on staff. If there are only a handful of sexual assault adjudications every year, someone might ask why the university needs to employ these 60 people.
So in an area where the pressure is only coming from one side, and if you’re a college president, your chief goal almost always is to ensure that you won’t get fired. And if you know there’s an article in the New York Times saying that your school is indifferent to rape, you’re likely to get fired. The internal bureaucratic pressures only come in one way.
Stuart S. Taylor Jr.: I might just add one thing. KC mentioned the idea that there are hundreds of thousands of women being sexually assaulted every year in colleges. There are studies that say one in every four women is sexually assaulted on colleges, one in every five. They’re really studies. They’re done by prominent parties, including the Association of American Universities. In our book, The Campus Rape Frenzy—I won’t get into too much detail—I think KC and I dismantle those studies, the best known of them, pretty effectively as being completely contradicted by all other evidence, including the gold standard studies by the Bureau of Justice Statistics at the Justice Department over many years. And that they are basically bogus studies by people who begin with wanting to conclude that rape is rampant, and then they use all kinds of statistical maneuvers to try and get there.
Just to quantify it a little bit, the Bureau of Justice Statistic studies, which I think have been proven reliable over the years, would say that about 1 in 40, not 1 in 4, college women is sexually assaulted while she’s in college. That 1 in 40 is way too many but it’s not 1 in 4.
Micah Wallen: All right. We’ll now go to our next caller in the queue.
Eric Lipman: Good afternoon, and thank you. My name is Eric Lipman, and I’m an administrative law judge in Minnesota and I’m a member of the Minnesota Lawyer’s Chapter. In looking at the new regulations—and I want to thank the panel for their very thoughtful and insightful sets of remarks on the proposed changes—it seems that the hearing process is really moving towards the kind of contested case procedures that would be unfamiliar to I think the ordinary staff of the provost’s office or the general counsel’s office – the idea that there would be folks who, in the decision-making and hearing process, ruling on evidentiary objections, explaining laws and procedures, writing findings of fact, conclusions of law, setting out appeals rights, all of these kinds of things are a quasi-judicial function at best.
I’m wondering whether you thought if these regulations survive, not only the election but the legal challenges, whether there’ll be a genuine move in the kind of personnel that are operating as decision makers in this case, or whether there’ll be an effort to have existing staff sort of, I don’t know, brush off their procedural nutshells, as it were, and try to staff these positions. Is the personnel likely to change if the regulations survive?
KC Johnson: There is — this is KC. There is a forthcoming article in the Missouri Law Review by Ben Trachtenberg, who’s a law professor at the University of Missouri who’s also done a very good piece on race and Title IX. And what he argues in this piece kind of reflects the question that’s offered here, and I think would be good advice for colleges. He urges that colleges hire external hearing adjudicators—a retired judge or an ALJ. Someone with experience in legal matters—to rule, basically, on these evidentiary issues, and then allow university officials to simply serve as the equivalent of a jury. And the argument that he offers here—and I think it’s a fairly persuasive one—is that in the long term, this will actually be much cheaper for colleges because they won’t need to train any of their own personnel in some of these often complicated procedural questions.
For instance, the regulations contain a rape shield provision, which excludes some questions. They also contain a relevance provision where questions must be deemed relevant. Now, you can make a criticism, and there has been some criticism on the regulations on the kinds of — that they’re too specific in these areas. And I think in some ways, I think there might be something to that if the last three years had gone differently. I mean, it is critical to recall the context here. In 2017, Secretary DeVos rescinded the Obama-era guidance. She issued her own guidance, which is very short, said she was going to go through notice and comment with a new rule. But that 2017 interim guidance essentially was an invitation to colleges and universities to develop their own fairer processes. Basically, she was telegraphing to schools, “If you want to be fairer in these procedures, you don’t need to worry about a Title IX complaint being filed against you by a victims’ right advocate and OCR coming in and pulling all of your funds.”
And in an environment where, over the last three years, colleges and universities had engaged with DeVos in good faith and had tried to develop fairer procedures in response to the guidance, I suspect the regulations might have been less prescriptive than they are. But instead, we’ve seen a reverse that colleges basically doubled down here. And the Education Department, correctly, in my opinion, concluded that the only way to create fairer procedures was to really specify them and to move towards this more contested model with formal rights articulated concretely in the rule itself.
Micah Wallen: We’ll now go to our next caller.
Caller 5: Great. Thanks very much. So rephrasing your guest’s earlier comment about 1 out of 40 is still unacceptable — and I definitely agree with that sentiment. I have a daughter of my own, and certainly many [inaudible 46.17] friends and so forth. I’m just wondering, so how do we become part of the solution? With respect to that, this may be a little off topic, but I’m wondering whether a corporative administrative action through the Department of Education or some agency, or [inaudible 46.37] action could address what I think may be some of more basic root causes of this, which I think is sort of a hypersexualization of our society through, well, exhibit A from Hollywood, Harvey Weinstein and Madison Avenue and so forth. If the root causes are somewhere more like that, then what’s an appropriate remedy?
Linda Chavez: That’s a great question. I would throw in alcohol consumption as one of the other ancillary causes in this. And either — Stuart, do you want to start, and then KC, you could weigh in?
Stuart S. Taylor Jr.: Sure. Yeah. Well, I think, you put your finger on the biggest elephant in the room. It is alcohol. Almost all of the cases that we’ve seen, I think, KC and I, in studying this for a few years involve both parties being drunk or drinking some. Maybe drug consumption but usually it’s drinking. And ironically, the effort to cut down on drinking by college students, to persuade them to cut down on drinking, to persuade women in particular that if they cut down on the drinking, they’ll be safer, has been furiously opposed by the victim rights groups. You might think, well, why would they oppose something that might reduce the number of sexual assaults as it might? And it seems to be an ideological thing that the victim rights groups think women should be able to do whatever they want, and it’s always the male’s fault if you have a sexual assault or an alleged sexual assault. But if something can be done about the drinking in various ways, I think it would reduce the number of these cases a lot.
One other thing that I’ll — it’s a little bit relevant to the Harvey Weinstein parallel. One thing that’s different in college than in, say, the Harvey Weinstein environment or the workplace, in the workplace, you have hundreds, millions of men who outrank millions of women, or who have the power to affect the careers of millions of women, and therefore, you have an enormous temptation by the men to exploit their power. There’s an abuse of power question here. That is not so much true in the college environment. You might have the football star and the freshman. You might think they have unequal power, if you will, coming into the situation, but it’s not quite like when Harvey Weinstein has a young woman in his presence who knows that if she pleases him, her career is going to take off, and if she doesn’t, it’s going to go nowhere.
So I think that the college environment is different that way than the workplace environment that we’re all used to.
KC Johnson: Yeah, I’d echo Stuart’s point on the kind of difference here. And one other issue in the rule, which has gotten relatively little attention but which is a critical component of the rule, and in fact, has been a critical component of how DeVos has approached this issue from the start. The rule contains very robust requirements that colleges provide supportive services who files complaints. And it’s true that this maybe doesn’t get at the underlying causes, which to a certain extent as the caller’s question suggested, may be beyond the control of colleges and universities, but there are all kinds of things now that under this rule, schools will be required to do. They’ll be required to provide counseling services for alleged complainants. They’ll have to require academic accommodations, housing accommodations, all of these things which impose some expense on the schools. But schools have said they’re willing to do it. Oftentimes, they try to look the other way and don’t do it. And now that they’re in the rule, that will have binding force of law.
So at the very least, the rule will have the effect of ensuring that a student who has experienced sexual assault on campus, a survivor of assault, gets a meaningful assistance from the college or university. And in that respect, the rule is incredibly faithful to Title IX. The purpose of Title IX — Title IX is not supposed to serve as a substitute for the criminal justice system. Title IX is supposed to insure that a student does not lose a right to education because of gender discrimination. And so to the extent that schools can deal with complainants in ways that ensure that they get through their experience on campus, this aspect—the support of services aspect of the rule—might be a very long-lasting change.
Linda Chavez: Well, first of all, I want to thank both of our participants and recommend, highly, their book on this issue because I think, particularly when we’re dealing with an issue in which there is a lot of misinformation out there, a lot of assumptions that are not borne up by the evidence, it’s important to be able to know what is really going on. So I think KC and Stuart’s book is certainly well worth reading. And, again, it’s called The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.
We, in the Regulatory Transparency Project working group on race and sex, will be continuing to monitor this issue going forward. And we thank all of those who have been participating in this Teleforum for listening. Thank you very much.
Micah Wallen: And on behalf of The Federalist Society, I’d like say we’re grateful to all our speakers for their time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.