Don't Roll Back Due Process on Campus
Biden wants to expand Title IX. Current rules on sexual assault strike a better balance between the rights of victims and the accused.
By Richard V. Reeves
Last week, President Biden announced his intention to nominate Catherine Lhamon as assistant secretary for civil rights in the Department of Education. This is not good news. If Lhamon is confirmed by the Senate, she will likely jeopardize proper due process in the treatment of sexual assault claims on college campuses.
Lhamon held the same position at the Office for Civil Rights from 2013 until the end of the Obama administration. During her tenure, Lhamon was responsible for enforcing guidance, issued to colleges in a 2011 “Dear Colleague Letter,” regarding Title IX, the federal law that prohibits sex-based discrimination in education and shapes the treatment of sexual assault and harassment in colleges.
Reducing sexual misconduct on campuses is obviously important. But the 2011 guidance was badly flawed. As Emily Yoffe wrote in The Atlantic, it “resulted in the over-policing of sex between young adults” and “sometimes resulted in adjudications that assume guilt, rely on junk science,” and “gut fundamental fairness.”
To date, more than 700 civil suits have been filed by students accused of assault who claim that the procedures used against them violated their civil rights. Many federal courts have ruled in their favor.
Three major flaws in the 2011 guidance have become clear. First, the burden of proof was set too low in Title IX tribunals; these required only that a “preponderance” of evidence pointed towards guilt—that is, an accusation simply needed to be more likely true than false.
Second, the 2011 guidance cast the net too wide in its definition of sexual harassment. As Martha Nussbaum, professor of law and ethics at the University of Chicago, writes in her new book, Citadels of Pride:
“It defined sexual harassment as ‘unwelcome conduct of a sexual nature,’ including ‘unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal, or physical conduct of a sexual nature.’ This meant in practice that one gross or demeaning comment, with no prior evidence of its unwelcomeness, would be actionable.”
Third, the Obama administration, especially during Lhamon’s tenure, pushed colleges towards the “single investigator model,” whereby one person serves “as both judge and jury: gathering the evidence, and then making a ruling,” as KC Johnson wrote in Persuasion.
All three of these problems were addressed by Trump’s education secretary, Betsy DeVos. Last May, after a lengthy and highly engaged “notice and comment” period, she issued a new “final rule” that reversed the most unfair aspects of the 2011 guidance.
After a careful analysis of the recent history of Title IX, Nussbaum writes in her book that the 2020 rule on Title IX is “distinctly superior” to “the standards articulated by the Obama administration.”
It is hard to think of someone whose views should carry more weight on this issue. Nussbaum is one of the world’s leading philosophers and legal thinkers, a deeply committed feminist, and a survivor of sexual assault herself. (I just discussed these issues with her on my podcast, along with #MeToo, college sports, and pride and patriarchy.)
On the burden of proof, Nussbaum agrees with DeVos that the bar should not be “preponderance” but the higher one of “clear and convincing evidence.” Though the 2020 rule issued by the Trump administration does not insist on this higher level of proof, it at least allows individual colleges to decide which standard to adopt.
Nussbaum also approves the stricter definition of harassment taken up in the 2020 rule. Following legal precedent in other domains, verbal harassment must be pervasive and severe to be actionable.
So far, Democrats have failed to recognize any of these problems with the 2011 guidance. To the contrary, they have been harshly critical of the 2020 rule. On the campaign trail, Biden said it “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” Lhamon was more outspoken, tweeting that DeVos was “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”
Shortly after assuming office, President Biden initiated a 100-day review to “consider suspending, revising, or rescinding” any of the new rules on Title IX that are “inconsistent” with the policies of his new administration.
One can only hope that they read and listen to Nussbaum and reconsider. It is clear that the 2020 rule is considerably fairer than the previous approach, which led to repeated miscarriages of justice. Instead of undermining the 2020 rule, the Biden administration should incentivize colleges to take additional steps to prevent assault and protect the accused. Biden’s administration could, for example, provide funding for sexual assault and harassment training and encourage universities to offer free legal counsel for students accused of assault—both worthwhile efforts.
But one change would dwarf all the others: lowering the legal drinking age. The overwhelming majority of sexual assault cases on college campuses involve alcohol. As Nussbaum points out, this makes the work of Title IX offices much more difficult, because “heavy drinking makes memory gappy and adjudication very difficult.” Alcohol has to be consumed well away from adult eyes, often in fraternity or sorority houses. Any adults who even attend such parties or social gatherings can be charged with contributing to the delinquency of a minor. College drinking—illegal, illicit, but implicitly condoned—is a major factor that is largely ignored by policymakers. Lowering the drinking age would take this risky activity out of the shadows and allow for much-needed supervision.
It is unlikely that Biden will be brave enough to tackle the alcohol-fraternity complex that creates a toxic culture on many college campuses. Instead, it seems likely that he and Lhamon will attempt to return to the flawed 2011 guidance for Title IX. Perhaps Biden and Lhamon will reconsider their position: After all, it turns out that reasonable people can come to agreement on these issues, as a task force from the American Bar Association demonstrated in 2017. But it is more likely that the administration will spend a lot of time and energy trying to undo the 2020 rule.
College administrators are desperate for settled policy on Title IX rather than the political ping-pong they currently face. The Biden administration should stick with the 2020 rule, which strikes the right balance between justice for victims and due process for the accused.
Richard V. Reeves is a senior fellow at the Brookings Institution and the author of Dream Hoarders: How the American Upper Middle Class Is Leaving Everyone Else in the Dust, Why That Is a Problem, and What to Do About It. He podcasts from Dialogues with Richard Reeves.