Title IX: A Discussion

Civil Rights Practice Group Teleforum

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On March 11, 2021, President Joseph R. Biden issued an Executive Order titled “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex….” President Biden’s Order requires the US Department of Education’s Office for Civil Rights (OCR) to undertake a comprehensive review of existing Title IX policies, including sexual harassment regulations that the Trump administration issued last year. Earlier this month, OCR conducted public hearings as part of its review. This webinar will provide differing perspectives on the issues that are now under OCR review, such as how best to address sexual assault, protect due process, and ensure that related public policy goals are met in schools and colleges.

Featuring: 

  • Samantha Harris, Attorney, Allen Harris Law
  • Shiwali Patel, Director of Justice for Student Survivors and Senior Counsel, National Women's Law Center
  • Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society’s webinar call. Today, June 25th, we present “Title IX: A Discussion.” My name is Guy DeSanctis, and I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are fortunate to have with us moderating Honorable Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law. Throughout the panel, if you have any questions, please submit them through the question and answer feature or the chat so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Ken, the floor is yours.

 

Hon. Kenneth L. Marcus:  Thank you so much and it is a real pleasure to be able to introduce these two speakers on a topic that could not be more timely. The Biden administration has just publicly announced its intent to conduct rulemaking on the topic of Title IX, so this issue as we’ve long expected will be the subject of formal policy consideration. This is a field in which I’ve certainly been active, having been the Assistant Secretary of Education for Civil Rights. But I’m pleased now to have the opportunity to sit back and hear from two experts with differing perspectives on the issue.

 

We have today Shiwali Patel of the National Women’s Law Center. She focuses on Title IX issues over there having previously served at the Office for Civil Rights at the U.S. Department of Education, the agency where I also have served. Samantha Harris, who will speak after Shiwali, is also a distinguished attorney. I’ve known her for many years. She was a key official at the foundation for individual rights and education where she focused on Title IX issues. She is now a partner in the firm of Allen Harris, which she has co-founded. I am very much looking forward to hearing from you both, starting with Shiwali Patel.

 

Shiwali Patel:  Thank you to The Federalist Society and to Ken Marcus for inviting me to join this important discussion. As you stated earlier, I’m Shiwali Patel, the Director of Justice for Student Survivors at the National Women’s Law Center, which has worked since 1972, the same year that Title IX was passed, to combat sex discrimination and expand opportunities for women and girls in every facet of their lives.

 

Before I became an attorney, years before the Obama administration increased federal enforcement of Title IX protections against sexual harassment, I worked at a rape crisis center as an educator for adults and adolescents. I conducted hundreds of presentations in the community and taught middle and high school students about sexual harassment and related issues. And one thing that struck me that I think about to this day is the amount of young people —the 11 year olds or 14 year olds, 18 year olds—who didn’t even need me to explain to them what sexual harassment and sexual assault were because they knew what it was from personal experience.

 

Some may not have already known what it was called because they never talked about it until I came to their class but later realized that the unwanted sexual comments and touches they repeatedly encountered in the school hallways, classrooms, or on their way to school is not okay or that when they were raped by someone they were dating or someone they’d call a close friend, it was not their fault despite the confusion and shame it left them feeling. And unfortunately, those students were not supported by their schools as they should have been, and so many also struggled to learn. And things have not changed much since.

 

While schools have made major strides to address sexual harassment over the last 10 years because of increased federal enforcement, too often schools still fail to make adequate efforts to respond to sexual violence. Still, survivors are being regularly urged to leave school until their assailants graduate, discouraged from filing formal disciplinary reports or even telling friends about their experience or else be disciplined and denied essential accommodations to have the support to be able to learn and stay in school.

 

For example, a couple of years ago I represented a student who was raped three times in the school bathroom within weeks, and she was 14. And when it was reported to the school resource officer or the school police officer, he didn’t believe she could be raped because she went into the bathroom and essentially coerced her into recanting. She was then disciplined by the school and suspended along with her rapist.

 

Another client of ours, also in high school, was transferred to an alternative inferior educational program because the school did a poor job of trying to maintain her safety while being in school with her assailant and his friends who also harassed her. And indeed for K-12 schools from just 2019 to 2020, at least 330 lawsuits have been filed against school districts for mishandling sexual misconduct and denying adequate protection. And things aren’t much better in colleges and universities.

 

The research and data has been consistent for decades that at least one in five to one in four undergraduate women experience sexual assault. This was reveled in a 1985 survey, conducted by Mary Koss, of thousands of college students. And in another study that was conducted soon after at Stanford in 2000 by research funded by the Department of Justice and more recently in 2019 from a survey conducted by the Association of American Universities. And these are just a handful of the surveys that have had consistent findings showing a high prevalence of sexual violence against students.

 

And the impacts are devastating. This includes survivor’s decline in academic performance or being pushed out of school. One 2014 study suggested that being raped during the first semester of college might more than double a survivor’s risk of having a GPA below 2.5 in the next semester. Other date shows that about a third of all student survivors are forced out of school, and survivors are even dying by suicide or killed by intimate partners after the schools refuse to take actions to keep them safe.

 

And while there is limited research and data out there about the prevalence of expulsions for accused harassers, the research that does exist shows that it rarely occurs. And yet extensive research has shown over and over again that many victims drop out of school or transfer schools because their assailant remains there or their school in some way failed to provide them with the support needed to continue to feel safe and learn. Sexual harassment in schools is a systemic issue that requires an institutional response.

 

And this is why for decades and across presidential administrations the Department of Education has interpreted Title IX, the civil rights law that prohibits sex discrimination in educational programs or activities, to require schools to support student victims’ equal access to education, including at times by investigating, deterring, and holding accountable those who subject students to sexual harassment, sexual assault, and other forms of sex discrimination. Title IX created institutional accountability to respond to harassment and discrimination so that survivors would no longer have to be pushed out of school in the wake of experiencing violence.

 

And of course I believe that schools must protect students’ due process rights obviously, but fair process is required for both respondents and complaints under Title IX, which has always required prompt and equitably grievance procedures. Due process rights were never at odds with the civil rights protections addressed in earlier now rescinded Department of Education Title IX guidance from 2011 and 2014. Those guidances recognized equal rights for students in grievance procedures and did not require schools to decrease rights of students accused of sexual misconduct.

 

In fact even a discipline student lawsuit filed in 2015 cited to the 2014 OCR guidance in their complaint, acknowledging the increase in protections for respondents and claiming that the guidance requires schools to comply with due process protections. And OCR, the Office for Civil Rights at the Department of Education, has enforced Title IX protections in favor of respondents who were also treated unfairly under earlier guidance. In 2016, for example, OCR had found that Wesley College violated a male student’s Title IX rights when he was a respondent in a sexual misconduct proceeding and was not provided equitable protections.

 

So the solution for protecting due process rights is not weakening institutional accountability for addressing discrimination in schools, nor is it singling out sexual harassment complaints for uniquely burdensome standards separate from any other type of student or employee misconduct that makes it harder for survivors to get the help. It’s plainly discriminatory to require uniquely burdensome and hostile procedures only for sexual harassment complaints when no such requirements exist for any other type of employee or student misconduct. Essentially, it relies on a sexist and toxic belief and rape myth that reports of sexual harassment are less credible and therefore require more scrutiny than any other type of report. And to effectuate Title IX’s purpose as a civil rights law, schools must instead of processes that do not discourage students from reporting and that require schools to address sexual harassment before it escalates and potentially derails a student’s education.

 

Schools should also have fair ways to address sexual harassment that focus on getting to the bottom of what happened while allowing survivors to access supportive measures regardless of an investigation and providing opportunities for informal resolutions. And people who do commit sexual harassment or assault should be held accountable so they can learn from their mistakes, make amends, and change their behavior. But the way they’re held accountable can look different depending on the harassing behavior, the needs of the survivor, and relevant circumstances such as the age of the respondent.

 

And this means that long-standing civil rights protections addressing sexual harassment should be restored under Title IX. This means that school officials should respond to all sexual harassment that is sufficiently serious and interferes with the person’s ability to participate in or benefit from their education and in a timely manner and address sexual harassment that may create a hostile environment for students in schools, regardless of where the harassment occurred. Schools shouldn’t be limited by geography when responding to sexual harassment because a student who has to share a class with their rapist can face the same trauma and triggers regardless of where the assault occurred.

 

And students should be explicitly protected from retaliation. Title IX prohibits retaliation against those who complain of sex discrimination. Yet, student survivors and especially survivors of color continue to face punishment when they turn to their schools for help in the wake of violence. Too often they’re immediately disbelieved, or they’re blamed for their harassment. Or they’re disciplined for rule breaking that they must divulge in order to report. And others are punished for sexual contact on school grounds -- that is for their own sexual assaults.

 

The Title IX rule must make clear that this type of treatment constitutes unlawful retaliation. And Title IX should ensure fair and prompt disciplinary procedures while maintaining school flexibility. This includes outlining general requirements for fairness that flow from Title IX’s equality mandate, which is core to its purpose, such as requiring that where recipient’s disciplinary provide a certain opportunity to one side it must also provide it to the other party and requiring an equitable standard of proof, such as a preponderance of the evidence because that is the only standard that reflects and equal stake for the students, which includes their ability to continue to have equal access to education or ability to remain at the school of their choice for colleges at all or to complete their education there.

 

And finally, Title IX should provide recipients the flexibility they need to design fair, community specific solutions, including designing the appropriate investigator or hearing model as their grievance process in a way that does not impose unnecessary and unduly burdensome and potentially traumatic requirements unique for sexual misconduct complaints. This will prevent Title IX from turning into a political football with each new presidential administration dictating new specific procedures that schools would have to use to address sexual harassment. And it’s worth noting that groups focusing on racially discriminatory discipline practices, disability justice organizations, LGBTQ rights organizations, mental health professionals, and student survivors have supported many of these recommendations as they’ve all submitted comments to the Department of Education for the recent Title IX hearing making similar asks.

 

So ultimately, what we’re asking for are for schools to support survivors’ healing and access to education and to use fair, unbiased solutions that focus on getting to the bottom of what happened and that people who cause sexual harassment should be held accountable so they can learn from their mistakes, make amends, and change their behavior and that we work to change our institutions and culture to prevent sexual harassment and assault in the first place. Students deserve no less, and now is an opportunity to strength Title IX to ensure schools are welcoming and safe places for all students. Thank you for inviting me today.

 

Hon. Kenneth L. Marcus:  Thank you, Shiwali Patel, for your remarks as we have a rather distinguished audience I see that’s been coming in, and I would like to mention to the audience that, at any time you have questions you would like to pose, you may put them in the Q&A box. And we will turn to that later. For now, we will turn next to Samantha Harris.

 

Samantha Harris:  Thank you and thanks for having me and thanks for that great opening, Shiwali. Just to give you a little background on myself, I worked at FIRE, which is the Foundation for Individual Rights in Education, for 15 years before I started my own law practice. And FIRE is an organization that advocates for free speech and due process rights on college campuses, so it’s not -- FIRE’s concern with due process has never been specific to Title IX, but we started to see— and this is what I’ll get into in a minute— that due process issues were increasingly arising in this context.

 

So I was at FIRE in April 2011 when the Office for Civil Rights issued the “deal colleague” letter on sexual violence that really transformed the way institutions handled claims of sexual misconduct on campus. And it wasn’t just the “deal colleague” letter itself that was so transformative but also the enforcement environment that surrounded it because around the same time that OCR issued the “dear colleague” letter it also ramped up its investigations into schools’ handling of sexual misconduct claims. And of course I’m not saying that’s a bad thing at all because institutions that mistreat complainants or discourage them from bringing complaints or sweep them under the rug should be held accountable.

 

And I want to say up front that I completely agree with Shiwali that schools often fail complainants, too. I find that these discussions of these issues so frequently pit the advocates for complainant’s rights versus the advocates for respondents’ rights, whereas the reality is, at least in my experience, that schools are typically looking out for their own interests at the expense of both parties. So I think that the two sides of this discussion often have a lot more in common than we think.

 

But where I disagree with Shiwali is on the idea that the 2011 “dear colleague” letter didn’t have any meaningful impact on students’ due process rights. The impact of both the letter itself, which discouraged cross-examination and mandated the preponderance of the evidence standard and also of the related enforcement efforts, was powerful. For example, after the White House Task Force of Sexual Assault spoke favorably about -- in its report about using a single investigator model rather than holding a hearing, this became the predominant method that schools used for hearing these claims.

 

So shortly after the “dear colleague” letter was issued, FIRE began to be inundated in a way we never had before with calls from students who had been denied due process in campus proceedings, specifically in sexual misconduct proceedings. And we were getting reports of students who had been found responsible for sexual misconduct with really not even a modicum of fair procedure -- no meaningful notice of the allegations against them, no hearing, no ability to see the evidence against them or ask questions of witnesses. And FIRE had always heard on and off from students who were denied due process in campus tribunals.

 

It’s not like other claims on campus are adjudicated fairly. They’re not, and that’s sort of a separate issue that doesn’t fall under the rubric of Title IX but that is also something I think is of significant concern. But something was going on because we had never heard from students at this rate before.

 

And this is really how I ended up starting my private practice because these students were heading blind into a process that often seemed to be completely stacked against them. And instead of just advocating for the big picture for due process and free speech, I wanted to help actually go in there with these students and make sure that whatever the outcome they received a fair process.

 

I think— and I sort of alluded to this before— that one mistake I think a lot of people make in this is to see due process and victims’ rights as a zero sum game. And I appreciated Shiwali noting that due process really does protect the process for everyone. It makes the outcome more reliable, and at the end of the day the ultimate goal of these processes should be to reach the truth. And often, as I said, the university’s really looking out for its own interests much more than the interests of its students. So you really need a process in place that protects the interests of all students.

 

So then turning to the new regulations and the upcoming efforts to change them, I wanted to share a little bit about what I think there. Moving from more of a think tank space at FIRE into a law practice where I am participating in these proceedings on a regular basis, it’s been very interesting to see how the regulations have played out in practice. So for example, I know that advocates for complainants have been very upset by the Department’s choice to narrow the definition of sexual harassment and assault, particularly to exclude most off campus conduct from that definition.

 

And what I wasn’t expecting is how that has actually played out from a due process perspective because what’s happened is that in response to the regulations most schools have adopted a two-track system where Title IX sexual misconduct is adjudicated with all of the procedural protections required by the regulations, while non-Title IX sexual misconduct is adjudicated under conduct codes, which typically have many fewer protections. And since so much of students’ social activity takes place off campus— parties and the places where these assaults happen— the reality has been that I actually have not tried a single case under the new regulations since they were issued. So while that narrow definition of sexual misconduct under Title IX may be more faithful to the statute’s definition of sex discrimination under an educational program or activity, it hasn’t actually improved the fairness of the process at all.

 

But while I haven’t tried a case under the new regulations, I have tried cases both under a hearing model and a single investigator model because different schools even under their conduct codes, some offer hearings and some don’t. And my experience has borne out the fact that it’s infinitely more difficult to defend yourself and to get a fair process when you don’t have a hearing where you’re able to present your case to a decisionmaker and to have the opportunity to ask questions of the parties and the witnesses. I’ve done both, and in my mind there’s really no comparison.

 

And I will say that while I do support the provision in the regulations that allows for cross-examination through the parties’ advisors, my experience has generally been that cross-examination through a hearing panel is okay too so long as the hearing panel doesn’t arbitrarily exclude or reword questions. I think the biggest difference is whether -- it’s not in who does the cross-examination but whether there is a hearing with the opportunity to pose questions, not just in advance but also in real time based on the witnesses’ testimony.

 

So overall, I think it’s critically important that the procedural protections in the regulations stay. I think that students accused of very serious wrongdoing -- and again, I believe this to be the case for any sort of serious wrongdoing. But Title IX, which we’re discussing here, only covers certain types. I think students accused of any type of serious wrongdoing need to receive a meaningful hearing with the opportunity to see the evidence against them and to question witnesses before being deprived of their education and branded with a black mark that will follow them for the rest of their lives. And the two track system that has evolved in the wake of the regulations just demonstrates to me how deeply schools don’t want to have to provide these procedural protections unless they’re required to.

 

Another piece of the regulations that has had a very significant impact on my practice -- and I think in a positive way -- and it sounds like, unless I misheard -- it sounds like, Shiwali, you and I maybe agree on this -- is the availability of informal resolution. And I apologize if I misheard you on that. But for me I handle a lot of cases that involve messy ends to relationships or encounters where the two parties involved genuinely interpret things very differently.

 

And in these cases, the all or nothing model often isn’t good for anyone because I think the complainant is less likely to raise their concerns if they know that their only choice is really a full on disciplinary process. And the respondent has no opportunity to simply apologize and make things right without facing lifelong consequences. And obviously informal resolution is not the appropriate way to resolve every case, and it’s very important that schools not pressure anyone -- that it be completely voluntary.

 

But in my experience that’s been the case, and it’s been an extremely valuable option in many of my cases. So that’s about everything I had to say in terms of my scheduled remarks, but I’m looking forward to discussing these issues more over the next Q&A period.

 

Hon. Kenneth L. Marcus:  Thank you so much, Samantha Harris. Shiwali, there was a lot there that you might or might not want to respond to. I would particularly find it interesting to hear whether you agree or disagree with Samantha Harris’ comments about the due process aspects of the guidance from the Obama administration. I think that that was an area of disagreement, but I’m not sure if I caught that right. Do you agree or disagree with that? I would invite you to address either that or any other piece of what Samantha Harris just had to say.

 

Shiwali Patel:  Thank you. I do disagree about her characterization of the 2011 “dear colleague” letter. While it did require and explicitly state that schools need to use a preponderance of the evidence standard for adjudicating sexual harassment complaints, that is a standard that OCR has held schools to since 1995. We know that in investigations of sexual misconduct cases OCR has held that preponderance of the evidence was the most equitable standard and therefore the most appropriate to use in Title IX cases. And also a preponderance of the evidence, as I stated in my remarks, is the only standard of evidence that puts -- that is equitable and that considers the equal stakes that both parties have.

 

So as I mentioned earlier in my comments, we have seen over and over again the impact that sexual violence and harassment has had on students’ education and how so many survivors end up losing educational opportunity because their needs are not responded to by the school. And the 2011 “dear colleague” letter did not expressly prohibit direct, live cross-examination. It did strongly recommend against cross-examination by a party. It did not say -- it was fine as to cross-examination by a parties’ representative. So in that way it’s actually similar to the DeVos Title IX rule which also prohibits cross-examination from parties personally themselves.

 

And the 2011 “dear colleague” letter, just like the 2014 Q&A document -- or Q&A guidance and the 2001 sexual harassment guidance, recognized the needs for schools to protect due process rights. So I don’t agree that the guidance itself has eroded respondents’ due process rights. I think it actually was very clear that respondents and complainants should have fair and equitable rights.

 

And OCR has also investigated schools under the 2011 and 2014 guidance that have violated respondents’ Title IX rights and have found some of them to be in violation of Title IX in those investigations. And I also wanted to respond -- Samantha made a comment about how she believes that the rule essentially should remain the same. I assume that means the requirements around direct, live cross-examination and the burden -- the evidentiary burden. Is that --

 

Samantha Harris:  Right. The due process protections. I mean, I think as I said the jurisdictional piece of it, that’s really never been something -- in terms of my own practice and advocacy, the issues that I’m primarily concerned with are the due process ones. And I see both sides of the jurisdictional question. As I said, in my practice that has actually diminished respondents’ rights rather than increased them in any way, so…

 

Shiwali Patel:  I have a concern with the requirement that -- well, many concerns with the recent changes to the Title IX rule -- one, that it sets unique procedures for sexual harassment and sexual harassment alone. So for example -- and it does this a few ways. It does this in how schools would be triggered to respond to harassment and also in the grievance process itself.

 

So for many years OCR has used a consistent standard for harassment based on race, color, national origin under Title VI, for disability under Section 504, as well as sexual harassment and other sex-based forms of harassment under Title IX. The similarity had to do with the standard for hostile environment where OCR considered whether or not the harassment was sufficiently serious and didn’t require that it be severe, pervasive, and objectively offense, which it now requires only for Title IX complaints.

 

It also had a similar standard around notice, so when would schools be obligated to respond to the harassment? What triggers it? Which reports do employees trigger it? And under the changes to the Title IX rule it significantly narrows that so that the reports made to the majority of employees and institutions of higher ed do not have to be responded to. If schools ignore them, then that would be okay.

 

So one example that I think paints a real clear picture as to how harmful this is is what happened at Michigan State University and many other schools where there were employees who were serial predators. At MSU in this case it was a doctor, Dr. Larry Nassar, who sexually abused countless students. And despite the fact that athletic coaches and trainers and I think there were reports of some doctors knew about it and didn’t do anything with the report, under the changes to the Title IX rule the fact that they ignored it would be okay under Title IX because -- if they’re not considered officials with authority to institute corrected measures, which is quite concerning. And so that change, again, is only for sexual harassment complaints, not for other types of harassment.

 

And also the rule now adopts a deliberate indifference standard. So this means that schools are allowed to act unreasonably when they’re responding to sexual harassment even if they’re not allowed to act unreasonably when responding to racial harassment or harassment based on disability. And so this not only creates unique standards for sexual harassment, but it makes it nearly impossible for student survivors who are facing intersectional forms of harassment, who are facing harassment because of their race and that’s also sexual to be able to bring a claim to their school if they’re subjected to two different standards.

 

And then of course I also disagree with Samantha’s recommendations around the due process provisions. First, I don’t believe that the DeVos Title IX rule mandates procedures that are required for due process protections. And it’s explicitly recognized -- the Department of Education in the preamble explicitly notes that the requirements that they put forward in the Title IX rule that we believe and are seen as extremely harmful are actually not required for due process protections. And the majority of courts that have dealt with this issue about direct, live cross-examination by a party or their representative have held that this type of cross-examination— I’ll call it adversarial cross-examination—is actually not required and that questions through a neutral hearing panel is okay to satisfy due process requirements.

 

And this is where I agree with Samantha. I think it would be fine for schools to -- if they have hearing model, to have the questions be posed by the neutral hearing panel. And I think it’s important that they give an opportunity to the respondent to be able to respond to the allegations or the claims that were made against them. I do not think that it is appropriate or fair for schools to be required to allow parties to directly cross-examine each other by a representative.

 

And this also creates a lot of problems around equity. So if one party’s able to afford an attorney and the other one isn’t, then that clearly will create an inequitable process during the hearing. And again, Title IX is a civil rights law that mandates equitable grievance procedures. So I just cannot see how such a clear inequity would be okay under a civil rights law.

 

Hon. Kenneth L. Marcus:  Thank you, Shiwali. Samantha, do you care to reply?

 

Samantha Harris:  Yeah. There was one area in particular -- I mean, there were a few little things. I mean, I agree that it wasn’t just the “dear colleague” letter that -- you know, the “dear colleague” letter alone had a few provisions that I think did diminish due process. I think in particular the cross-examination one because you’re right. It was silent as to the permissibility of cross-examination through a third party. But since virtually no schools allow representatives to participate -- I mean, the new regulations require that they be able to participate for that purpose. But the practical effect since without being required to, no schools allow attorneys or representatives to participate, was that there was no cross-examination.

 

But where I really wanted to respond is it’s interesting that you brought up -- I agree with you that there should not be separate standards for sexual misconduct and other types of serious misconduct. And this is something I see as a real problem. But what I find interesting is this is something that due process advocates were raising as an issue in the wake of the 2011 “dear colleague” letter because what we were seeing was all of a sudden at a lot of schools if you were accused of racial harassment and that ran under the conduct code, you might get a hearing. You might have the opportunity to ask questions. You might get meaningful notice.

 

Whereas if you were accused of sexual harassment or misconduct, all of a sudden you didn’t have a hearing. You lost a lot of procedural protections as schools -- you know, I think under the pressure of the increased enforcement and also activism around this issue is a lot of schools dispensed with procedural protections in the sexual misconduct setting while keeping that in the other setting. So FIRE did several years of analysis of school -- you know, under the previous DCL of schools’ policies on sexual misconduct and non-sexual misconduct, which would include things like racial harassment, and did an analysis of the policies and whether each policy provided certain due process protections.

 

And overall under that regime, sexual misconduct policies provided dramatically less due process rights— right to a hearing, right to cross-examination, things like that— than other serious offenses including racial harassment. So the disparity -- that disparity existed previously too in the other direction. So I think if it’s a concern now, it should also have been, I would say, a concern then.

 

But I do agree. I think it’s really important that there not be separate standards. I hate the two track system because I think, you know, students accused of any kind of serious misconduct where they’re -- really anyone facing suspension or expulsion and the lifelong stigma of that kind of conduct finding deserves important procedural protections.

 

The problem is that outside of the civil rights laws the government simply doesn’t have the right, with the exception of certain due process protections at public schools -- doesn’t have the right to tell schools how to run their conduct processes. So there’s a limit to how much the government can require these protections for students at other colleges and universities unless they are public institutions. But I agree with you fundamentally that there shouldn’t be a distinction and that students either who have been the victims of or who have been accused of serious misconduct are deserving of the same type of fair process.

 

Hon. Kenneth L. Marcus:  Thank you, Samantha. For our audience, we’re starting to get questions in the Q&A, but feel free to add additional questions. I would like, though, to ask one of my own. Again, now, for each of you, I think you’ve both given some indications of where you would like Title IX policy to be in general, but I’d like to ask a little bit more specifically with the Biden administration about to engage in rulemaking. What would you like them to do? Shiwali Patel, would you like them just to go back to the Obama approach, or are there changes you would like to see? And then, Samantha Harris, would you like to stick with the current approach, or are there also changes you would like to see? Could I start with -- Samantha, would you care to take a stab at that question?

 

Samantha Harris:  Sure. Yeah. So as I said before, I think that the due process protections in these regulations -- by which I mean the details of a grievance process which includes meaningful notice, the right to see all of the evidence that the university is using, not just -- that the university has collected, not just that they use in the ultimate determination, the right to a hearing, the right to ask questions. I think that all of those should be preserved. I don’t -- when it comes to some of the other things that people have expressed concerns about, the jurisdictional issues, that is sort of more outside of my purview.

 

And I agree that given the schools’ propensity to try to provide the fewest protections possible, the jurisdictional aspects of the regulations have not worked out well for students’ due process rights in that regard because schools have just been running everything through conduct processes that are often very deficient if they happen off campus. I think my focus is on ensuring that these due process protections are preserved.

 

Hon. Kenneth L. Marcus:  Shiwali, I don’t know if you heard the question. If you could speak to the Biden administration now— and perhaps you will— would your recommendation be that they should revert to the prior Obama rule, or do you have other changes that you think that they should make?

 

Shiwali Patel:  Thank you for that. And we do have some thoughts for the Biden administration and are excited to hear that they are planning to move forward on changing the Title IX rule. I hope it can happen quickly given the ongoing impact on students. And as I’ve mentioned in my opening remarks, I think there are a few things that would be important for the Biden Title IX rule.

 

First, it should restore protections for student survivors, the protections that existed before -- not only just survivors, it impacts all students. But of course it would have a significant impact on protecting the civil rights of student survivors -- to restore the standards so that they’re the standards that were in effect before the DeVos changes to the Title IX rule.

 

So what I mean is no more require allowing a deliberate indifference so that schools would be held to a reasonableness standard instead of a clearly reasonable standard; to change the notice requirement so that schools would not be allowed to ignore reports that are made to a vast majority of school employees, which also doesn’t reflect how students often report sexual harassment. They usually, if they do report it, will turn to someone that they trust and that they’re closer to, often not someone who’s an official with the authority to institution corrective measures. And the requirements around the standard or the definition of sexual harassment should also be restored.

 

As I mentioned earlier the DeVos rule -- the changes to the Title IX rule adopt an extremely narrow standard that requires student survivors to have to experience sexual harassment that is severe and pervasive and objectively offense. Whereas before, the harassment had to be sufficiently serious, and schools would be able to consider the severity or pervasiveness or persistence of the harassment but was not required to show -- to make the showing that is now required. I think when you compare this especially to the workplace, it’s quite outrageous.

 

So Title VII eliminates or addresses workplace discrimination, and it also addresses and sets requirements for workplaces to respond to sexual harassment. And the standards are much broader there where under Title VII compared to the current Title IX rule employers would have to respond to more sexual harassment rather than waiting for it to escalate. They would have to respond in some cases regardless of whether or not they received actual notice depending on who committed the harassment and where it was committed. And they also are held to a reasonableness standard, not deliberate indifference or the clearly unreasonable standard.

 

So what this really does in effect is that it requires students -- and this includes young people -- young children to have to endure more severe harassment before they are entitled as a civil right to get help from their school. I also have -- we’ve also have recommendations around the grievance process. I think one of the many problems with the recent changes to the Title IX rule is how proscriptive the grievance process is.

 

I think what’s interesting and quite ironic is that DeVos earlier on criticized the Obama era guidance for being too inflexible and to creating -- there was too many burdensome standards for schools and universities but then made changes in the Title IX rule that actually is less flexible. And a lot of schools have complained about that and have complained about how difficult it has been to implement these new requirements, to have an investigation with a live hearing, to provide for direct live cross-examination and all the other requirements around the grievance process.

 

I don’t think one process works well for every type of institution and that schools should be given flexibility but that the Title IX rule should be explicit that in the grievance process they use, whatever the process is, that the school should adhere to title IX’s core purpose, which is to ensure that there’s a fair and equitable and prompt resolution of the complaints. And it can lay out principles around fairness and equity and safeguards to preserve that without being prescriptive to dictate the exact type of procedures that schools should use.

 

Hon. Kenneth L. Marcus:  Thank you. So the questions are starting to come in. This one appears at least in the first instance to be directed at Shiwali. The questioner asks the following. If the 2011 and 2014 guidance were not effective from a due process perspective, then to what do you attribute the hundreds of lawsuits by accused students and their aftermath, including wins at the appellate level in both federal and state court? Was it due to OCR’s enforcement? An article in the Atlantic quoted former OCR investigators as saying that once an investigation was opened, they were told not to be neutral fact finders but to find a Title IX violation.

 

Shiwali Patel:  So I don’t disagree that schools were violating respondents’ Title IX rights even while the 2011 and 2014 “dear colleague” letters were in effect. And I noted at least one case, but there were several where OCR, when those guidances were in effect, had found schools to be in violation of Title IX. And that in fact in one case in 2015 where a respondent has sued their school for violating their due process and Title IX rights— they were the student who was accused of sexual harassment— actually cited to the 2014 Q&A as a source of protection for them -- a source that showed that the OCR required schools to comply with due process and to provide equitable grievance procedures.

 

And just because -- I know I’ve heard the number. I think it’s several hundreds of cases have been filed by respondents, it doesn’t mean that they were all meritorious. I mean, the public -- it’s important to know that the public doesn’t have information about the events beyond the facts that are pled in those cases and because of FERPA, which is a federal privacy law, it prevents the disclosure of information -- of this information publicly. And since these cases rarely go to trial, the public really has no way of verifying the voracity of the allegations and the complaints.

 

And also, a lot of these complaints have been dismissed at the outset for failing to state a claim for sex discrimination or a violation of due process. Or some of them have been allowed to proceed past a motion to dismiss stage but then were actually dismissed during the summary judgement stage when findings of fact were made by the court.

 

And I agree that while campus grievance procedures are quite stressful for students -- for all parties who are involved, there isn’t any evidence -- I don’t think there’s sufficient evidence that campus grievance procedures have been weaponized and stacked in favor of complainants to the determinant of respondents. So for example— and I’m going to cite to a few studies— there was a study conducted of 42 higher education institutions of a mid-Atlantic state for the 2015 school year, and so while the 2011 and 2014 guidances were in effect, and found that there were 1,054 reports of sexual misconduct and/or domestic violence or stalking reported to Title IX coordinators.

 

25 percent of those reports, 258, were adjudicated through the formal process, which resulted in 119 findings of responsibility in sanction. So that’s 11 percent of the total reports. And of those that were found responsible, 34— so about 3 percent of all the reports— received a suspension of some length, and 22— about 2 percent of all the reports— were expelled.

 

And then at the University of Michigan in 2017 there were 18 complaints of sexual misconduct that went through an investigation. Four resulted in a finding of responsibility, and of those only one resulted in expulsion. And none resulted in suspension.

 

And I just want to point out that respondents are not the only ones who are filing lawsuits against their schools claiming Title IX violations. There have been hundreds of cases filed by student survivors alleging that their schools have violated their Title IX rights. And many of them have been successful or resulted in settlements because schools haven’t been responding effectively to sexual harassment.

 

And so while I agree that there have been issues where schools have not protected the rights of respondents, I don’t think it was just merely caused by the 2011 “dear colleague” letter. I think one solution to it could have been better training of schools and employees about what’s in the “dear colleague” letter that would have prohibited some of the things that these students were complaining about that happened to them rather than just doing away with it altogether and then changing the Title IX rule to create an extremely inflexible and unfair grievance process.

 

Hon. Kenneth L. Marcus:  Thank you, Shiwali. About 10 minutes left but, Samantha, did you want to say anything with respect to that question?

 

Samantha Harris:  Sure. First of all, Shiwali’s right that there have also been a lot of lawsuits filed by complainants. And I think one sort of piece that I think is missing from this discussion -- and it goes to some extent, I think, to the question of how ridged, for example, the regulations need to be, whatever they may say about how schools structure these grievance processes, is that this isn’t a zero sum game in the sense that both things can be true. Schools can be violating respondents’ rights, and schools can be violating complainants’ rights sometimes in the same case but oftentimes because of differing interests in a particular case, if someone’s a high profile athlete or if a school has been under a lot of media pressure after being accused of not doing enough to address sexual misconduct.

 

So these things -- I think we’re coming, obviously, from different perspectives since we represent people on different sides of these cases. But in a lot of ways we’ve both had similar experiences of trying to guide frightened young people through a very high stakes process and feeling that the institution that is supposed to protect them is completely failing to do so. And I think that that’s something that everybody needs to take into account -- that universities really need to be held accountable for how they treat their students on both sides of this issue.

 

So the fact that there have been a lot of suits on both sides is absolutely the case. There have been numerous findings in these cases brought by students accused of misconduct that schools have violated their due process rights. The Title IX rights issue is more difficult because interestingly what a lot of cases have held is that while a school’s process does show a clear bias towards complainants, a bias towards complainants is not the same thing as a bias towards members of one sex, even if complainants are disproportionately female, for examples.

 

Courts have distinguished pretty clearly between bias against respondents and bias against men. And I actually don’t have that much -- while it makes those cases harder to bring, in terms of what Title IX means and that type of discrimination, I think I see that perspective. But it doesn’t change the fact that even in a lot of the lawsuits that have not been meritorious courts have acknowledged that respondents are participating in a process that is stacked against respondents.

 

So I do think -- I mean, I think there’s a very real problem on that side. And I think schools need to be required to protect students’ rights in a process that’s going to affect the rest of their lives. But I fully agree that it goes both ways and that schools -- you know, the regulations and the way we address this with schools because in some ways the government can only do so much. Those of us who care about these issues on both sides also need to be talking to schools and advocating for schools to have fairer processes for people even when a claim, for example, falls outside of Title IX because we want to make sure that schools are doing the right thing. And the government plays a role in that, but it can’t do everything.

 

So we also need to be working to hold institutions accountable. And I am aware of two or three cases in which OCR addressed this issue from the respondent’s side, but those were really very much outliers. I think the reason that a lot, a lot, a lot of these people went to court is that was the only recourse they really had to try to address what they felt were serious violations of their rights. And in many cases they were successful, and we have law to that effect now. So even if the regulations, for example, do away with live hearings, there are now a number of jurisdictions in which public universities are going to continue to have to have live hearings because courts have held that that is required by due process because it’s interesting.

 

Going back to something Shiwali said earlier, it’s true that a lot of courts -- really only the Sixth Circuit has held that a live hearing with direct cross-examination by a representative is required by due process. But a lot of courts have held that a single investigator model doesn’t pass constitutional muster and that some sort of live hearing is required for due process in this context. And so if the regulations go back to allowing schools to have a single investigator model, they would be sanctioning something that has been found in numerous jurisdictions to violate students’ due process rights.

 

Now, that’s not to say private university students, for example, don’t have due process rights. But morally speaking we still know that they’re being subjected to a process that the courts of that jurisdiction have deemed inconsistent with fundamental rights.

 

Hon. Kenneth L. Marcus:  Thank you. So with just five minutes remaining, realistically the most we could fit in is maybe one more question. And I think that what Samantha said a moment ago might tie in very nicely with one last question. And forgive me if I’m mis-paraphrasing, but I think Samantha said something along the lines a few minutes ago that the two participants here -- the two of you have different perspectives because you represent different parties. And the questioner -- this is a lawyer in the audience.

 

The questioner observed that Samantha represents people who are accused of sexual harassment. Shiwali indicates that she has represented people who allege harassment. Would your experience -- your perspective, your views be different do you think if you took on a client from the other lawyer’s client base? Shiwali if you represented an accused, Samantha if you represented an accuser, is that something you would or wouldn’t want? And do you think that would change your way of thinking?

 

Samantha Harris:  Do you want to go first, Shiwali, or should I?

 

Shiwali Patel:  I’m fine either way.

 

Samantha Harris:  Well, I spoke last, so why don’t you go first?

 

Shiwali Patel:  Okay. That’s a good question. I think where Samantha and I differ is what is required for a process -- I guess what due process requires in schools’ investigator processes. I do believe that fairness is important for Title IX proceedings as well as for all civil rights proceedings and that it’s core to Title IX’s purpose. And so if I were to represent a respondent and they were not treated fairly, they were not given an opportunity to respond to the allegations against them, were not given any notice of it but were suspended or disciplined, of course that’s a problem.

 

But I do not believe that if they were not given an opportunity to directly cross-examine their accuser then that is a due process violation or Title IX violation or that if they were not -- if the survivor was not held to -- the claimant was not held to a higher standard of evidence, like clear and convincing versus preponderance, that that’s a violation of Title IX. I wouldn’t agree with that. So I think it very much depends on the circumstances and the issues that existed in the courts -- sorry, the courts -- the schools’ grievance process.

 

Samantha Harris:  And I would say that having worked -- having seen the way university administrations work for years I don’t -- and I’ll tell you a story about somebody I’m representing in a second. But I don’t have to represent complainants to know and believe that schools are absolutely screwing this up for complainants, too, because I have seen time and again the way that universities act in their own interests. So when I hear people like Shiwali talking about the ways in which their clients’ cases have been mismanaged by universities, I know it’s true. I just disagree that getting rid of some of these procedural protections is an appropriate way to address those issues.

 

But I absolutely see the problem on that side. And I see it in my practice. I’m representing someone right now. It’s an interesting case because the person has actually been accused of racial discrimination, but the person is someone who brought a Title -- essentially brought a Title IX complaint. And the person against whom they complained responded by saying, “I’m being accused of this because of my race.” And I see how this client of mine who really has a Title IX case is being treated and everything, and it’s horrifying. I mean, the administration is treating them horribly.

 

So I don’t doubt it for a minute, but I would like to think that regardless -- you know, I would still support the right to be able to ask questions and things because I think that’s important. In the hearings I do my clients get questioned sometimes. And if there are inconsistencies in my clients’ stories, the ability of the complainant and the complainant’s advocate to bring that out I think is important, too. So I think that I would still support those procedural protections. But I absolutely see the problems on both sides.

 

Hon. Kenneth L. Marcus:  Thank you. Thank you both. As the hour comes to an end, Samantha Harris, Shiwali Patel, I want to thank you both for your excellent presentations.

 

Guy DeSanctis:  Yes, thank you all. On behalf of The Federalist Society, I want to thank our experts Samantha Harris, Shiwali Patel, and Honorable Kenneth L. Marcus for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.