Guidelines former President Barack Obama’s administration issued outlining how schools should implement Title IX have been described by former school administrators and attorneys as a “meteor” or a “bomb,” coming with little warning and leaving major changes after its initial impact.
Schools, they said, were left scrambling to adapt to the added responsibilities that come with providing trauma-informed care for victims and fair hearing processes for the accused.
Last year, President Donald Trump’s Department of Education undid those guidelines, and more changes are expected.
However, according to former attorneys and former administrators, one theme that arose under the Obama-era mandate is likely to only increase under the new administration—that is the increasing need for schools to take on the role normally left to the judiciary.
According to several school administrators, schools are increasingly needing to act as extrajudicial branches, tasked with holding quasi-trials that afford all constitutional due process protections, and are becoming increasingly scrutinized by the federal courts.
“We’re starting to see it develop, right in front of us like a sort of hurricane, where it’s becoming a court system on campuses,” said Stetson University professor Peter Lake, who previously served as an interim director of Title IX compliance. “And it’s one that a lot of the federal courts now feel empowered to dictate exactly the procedural requirements that you’d see in other court systems.”
Pressure and Process
The pressure to resemble a minor judiciary is coming not just from the Trump administration, but also from the courts themselves. But, according to former administrators, the guidelines have been trending that way for some time.
In 2011, the Obama administration issued what is called a “Dear Colleague” letter, which outlined for schools how the Department of Education expected them to pursue potential Title IX claims. Among other things, the guidelines said schools needed to establish policies for investigating and resolving claims, schools needed to evaluate claims based on the lower “preponderance of the evidence” standard, schools could not use mediation to resolve sexual assault claims, and schools were discouraged from allowing students accused of sexual assault to cross-examine their accusers during hearings.
“The 2011 ‘Dear Colleague’ letter hit like a meteor,” Lake said. “I don’t think [schools] were terribly well prepared for it, and I think we’ve been trying to catch up ever since.”
According to Elliott Greenleaf attorney Kelley Hodge, under the rules, schools were given a significant amount of freedom to develop processes that fit with their unique features, such as its size, proportion of international students, and the municipalities it spans.
Hodge served as the University of Virginia’s first Title IX coordinator, beginning in 2015. Taking over in the wake of a national sex scandal, part of her role was rebuilding the school’s Title IX program.
However, she and other Title IX coordinators were also tasked with implementing the procedures. That role included receiving complaints, and assessing the need for any immediate actions, such as a “no contact” order if the students were in the same class or dorm. If the victim wanted to pursue a formal case, there would be an investigation, which included interviewing witnesses and checking any social media or website that might have relevant information. Investigators, Hodge said, sometimes had legal backgrounds where had they encountered law enforcement investigations. Regardless of background, all investigators, she said, were specially trained.
During the entire investigation phase, Hodge said, the coordinator and staff are in frequent contact with both parties to keep them up to date with the case.
“It’s a balancing act, and you don’t want to compromise thoroughness for being overly prompt,” said Hodge, who added that the goal of the coordinator is to ensure that both sides of a dispute were treated fairly and were made aware of the process and available resources. ”I never looked at two cases and said, ‘Well you know this is cookie-cutter work’ and you do the exact same things.”
How cases are eventually adjudicated depends on the school. Some schools hold hearings before a single official or a panel of officials. Other schools based their decisions on the findings of the investigator.
According to Hodge, UVA used a panel that would hear the case after getting a report from the investigator, which would have a recommendation for the board.
Appeals were also left up to the schools, and in some cases both the accused and the accuser could appeal the findings.
Under the 2011 rules, the entire process was expected to take place in 60 days.
In September 2017, however, the Trump administration repealed the 2011 Obama-era guidelines, and issued guidance in the form of a Q&A. Among the most striking changes, according to former administrators and attorneys, was that there is no longer a “fixed timeframe” for resolving the disputes, schools can choose to use the higher “clear and convincing” evidentiary standard, mediation is available in all circumstances, and accused students can now cross-examine their accusers.
The Department of Education also said it plans to make changes in the form of formal rules, rather than simply through a “Dear Colleague” letter, and last month, The New York Times reported on a leaked proposal for the rules.
“From what I’ve read, and with some of these court decisions, you have to have a hearing before there’s a finding of responsibility. That’s more like a court,” Sheilah Vance, who previously served as Cheyney University’s Title IX coordinator, said.
Lake was more critical.
“There are procedural protections that have never been a feature,” Lake said. “We’re caught in this very unusual situation where the federal courts are telling us to create college courts.”
Live cross-examinations in particular can be problematic, attorneys and former administrators agreed, noting that, in court, they take place before trained and vetted magistrates and judges with years of experience, so schools usually want to avoid them.
“You don’t just let people tear into each other in court. This isn’t the Wild West,” he said. “I can’t even begin to tell you the 50,000 different things that have been built into a direct confrontational live hearing, and if you don’t get those, do you really get anything like a court system?”
‘This Is Going to Crash’
In addition to the new rules, courts have also been attaching constitutional due process rights to Title IX.
The most recent example of this comes in a Sept. 7 decision by the U.S. Court of Appeals for the Sixth Circuit, which said the University of Michigan violated a student’s rights by not having a hearing and not allowing the accused to cross-examine the accuser when the outcome of the case depended on the credibility of the parties.
The federal courts have also been receptive to hearing cases about a school’s Title IX program, which, according to Lake, had made them almost an extension of the minor judiciary, similar to a workers’ compensation or unemployment board.
He also noted language in the Sixth Circuit decision saying an “erroneous outcome” constituted a Title IX violation subject to the court’s review. Essentially, he said, that provides “a writ of cert from every single hearing,” and is “federalizing the college court systems” in a way you don’t see with more typical companies, like IBM.
“It seems almost weekly now I’m reading a case that tells a college to do this, don’t do that. You’re going to have very different mandates from all over the place and they won’t be consistent,” he said. “It’s one thing if you’re fine-tuning things at the edges, but these are fundamental. This is no way to create a court system on college campuses. Maybe we need one, maybe we don’t, but this is going to crash.”
Schools, Lake said, are not only beginning to experience “regulatory fatigue,” which is not likely to go away, but the piecemeal oversight from the courts is making implementing a fair system more difficult.
“It’s exactly what the DOE didn’t want. They were trying to get a more consistent overlay,” he said. “I’m hoping that the U.S. Supreme Court gets in the middle of this, because this definitely needs to be corralled.”
Hodge also said consistency is paramount for executing the mandates of Title IX. The 2011 guidelines, she said, provided enough specificity for the schools to work within that framework without micromanaging the institutions.
“If you don’t have proper instructions, or definitions, you don’t know how to evaluate the unique nuances, and I feel, inherently, that someone will lose out,” Hodge said. “It’s always a work in progress, because you just don’t know everything, and you’re not trying to micromanage.”
Vance noted that some students specifically chose not to pursue criminal charges, citing a variety of reasons, including the severity of the punishment, a mistrust of law enforcement, isolation and the fear of being re-traumatized. Adopting rules that require schools to undertake increasingly judiciary processes could lead some students to shy away from pursuing any resolution at all.
“The whole purpose of Title IX is to make sure there are no barriers to education because of sex,” she said. “It’ll be interesting to see what happens.”