Transition Rules in Administrative Law
Note. This is work in progress. I want to write it up to get comments. I have not checked the law, the dates, and the facts in it, and probably some of them are wrong. It is accurate enough to be useful for discussion, however.
- 1 The Hypothetical
- 2 Caveat: Could the University Use Secret Witnesses Even Under the Obama Rules?
- 3 Claimed Answers
- 4 The Issues
- 5 Common Law Principles
- 6 Title IX in Particular: The Funding of Federal Programs
- 7 Implementing Regulation versus Statutory Interpretation
- 8 Doe v. Rensselaer Polytechnic (2020)
- 9 Title IX Law Generally
- 10 The Clery Act
Consider the Title IX regulations on the question of whether a university has to allow a professor to know the names of the witnesses against him and let him ask questions regarding alleged discrimination on the basis of sex. To be specific, suppose the allegation is that he cold-calls girls more than boys, and that this constitutes discrimination against girls. The Obama Rules said the university does not have to reveal the names of witnesses (or allow the professor to ask them questions, or allow him to see the interview transcripts, etc., but for simplicity let's be specific in the hypothetical). In May 2020, the new Trump Rules said that it did. Very likely, there will be Biden Rules soon that will again say it does not. Suppose that in 2019 the university starts investigating a professor for allegations of misconduct in 2018, but the investigation continues until 2023. Which rules must the university follow?
Caveat: Could the University Use Secret Witnesses Even Under the Obama Rules?
It actually is unclear if even under the Obama Rules a university can conceal the names of the witnesses from the accused. And it is unclear whether the Obama Rules violate the U.S. Constitution. In these notes, I am trying to focus on transition rules, but Title IX law is a murky subject even apart from that.
In 2011 Obama issued the Obama 2011 "Dear Colleague" letter, which followed from the January 2001 (Clinton) "Revised Sexual Harassment Guidance"; my hypothetical is based on my own Indiana University's rules supposedly based on those documents. I think any apparent discrepancy between them may be due to the fact that the university rules provide for two procedures, one for students and one for employees, and a student gets more due process protection than a professor or a janitor, and perhaps that letter is restricted to protections for students. In court, an obvious question is why a statute that prevents giving federal aid to institutions that discriminate by sex should have have different rules depending on whether the discriminator is a student or an employee.
In 2017, the Dept of Education rescinded the 2011 Dear Colleague Letter and issued interim guidance. So the "Obama Rules" were actually not in force, at the federal level, in 2019, though individual universities such as Indiana did not change their rules, it seems, in response to the interim guidance. It is also important to note that the federal guidance seems never to have *prohibited* universities from following due process; it only made due process optional for them, although the 2011 Obama letter did strongly encourage universities to prohibit questioning of the accuser.
As explained below in a separate section, the 1990 Clery Act is also relevant. It gives procedural protections to those accused of sexual assault. It perhaps does not protect those accused of mere sexual discrimination, but under that interpretation, a university would be free to drop allegations of sexual assault in favor of mild accusations of inappropriate comments in order to strip the accused of due process while ultimately inflicting equally harsh penalties.
My own university takes the position that it should use the Obama Rules. The Dept of Education said in August 2020 that it is okay but not necessary to use the Obama rules if the investigation is for "sexual harassment", but is silent as to an investigation for "sexual discrimination", but was unclear as whether it meant that for redoing old cases in progress or for new cases on old events. A Northern District of New York 2nd Circuit federal judge ruled against a University on this point in October 2020, saying that it is improper to let the university have its choice of whatever rules it likes best depending on the professor being targeted.
The question raises lots of interesting questions, and reaches to the profoundest issues in administrative law. What is a regulation? What deference do the courts owe to the agency, if any? Can Congress really delegate lawmaking authority to the President, so that the law changes with each election? Is the President really is in charge anyway, or does our system give real sovereignty not to Congress, or to the President, but to the bureaucracy?
This last question may seem overdramatic, but it's not. Suppose all the Department of Education personnel favor the Obama Rule of not allowing the professor to ask questions that might help with his defense. When Trump came to office, it took him 3 years, until May 2020, to get his new rule through the process. The bureaucrats said universities actually did not have to comply until August 2020. Then they said, somewhat aimbiguously, that if the allegations were for behavior before August 2020, the university did not have to comply at all. No doubt, if in 2022 a university wants to investigate allegations of misbehavior between August 2020 and 2022, the Department of Education will say they can use the new 2022 rules. Thus, by playing with transition rules, the Department of Education can entirely thwart a disfavored President.
Common Law Principles
The courts do provide a check on the Department of Education. Let's think, first, what the law *should* be, according to common law principles. We will ignore Bill of Rights issues, and just think about the contract between professor and university.
That contract says that the professor may be fired for severe misconduct, but not at the whim of the university. It is not employment at will. The contract is unclear about how bad the misconduct must be, or what procedures must be followed, if any, to decide whether it really was misconduct. Common law principles would say that the severity of the misconduct required for dismissal would depend on the past practice of the university and other universities and on both party's reasonable expectations, which could change over the years of the contract. No particular procedures would need to be followed, but the Court would tend to defer to the university if it followed careful procedures that would be likely to produce a fair and accurate result, and to be suspicious and defer to the professor if the university chose arbitrary procedures that looked chosen so as to lead to firing for unlawful reasons that couldn't be exposed to the light of day.
Title IX in Particular: The Funding of Federal Programs
Title IX is special. What the statute says is that the Department of Education will not fund universities that discriminate on the basis of sex. Thus, it requires some specialized knowledge of federal funding law to know whether lack of due process at a university can constitute discrimination on the basis of sex. See the Doe v. RPI case below for some insight into how that works.
Implementing Regulation versus Statutory Interpretation
The deference issues are interesting. It seems to me that both Auer deference and Chevron deference are relevant here. The agency is making regulations, and I think the old Obama regulations violate the Title IX statute--Chevron. The agency is interpreting the regulations, and there I think it's Auer deference that counts, though I forget.
Really, though, the big thing is whether a federal agency can say that two contradictory regulations are both faithful implementations of the same statute at the same time. I can see how jurisprudence would say that facts and stuff changes over time, so the Obama Rules were good for their era, and the Trump Rules for their era. But I can't see how anyone can say that the Obama Rules should be used in 2021 for 2019 cases and the Trump rules for 2021 cases, both rules implenting the same statute, when there is no reliance argument and no need-for-time-to-implement argument available.
Doe v. Rensselaer Polytechnic (2020)
This case is Doe v. Rensselaer Polytechnic, No. 1:20-CV-1185, October 16, 2020 (N.D. New York, 2020). A magazine article summarizes thus:
In Doe v. Rensselaer Polytechnic Institute, the Federal District Court of the Northern District of New York halted RPI’s scheduled Title IX hearing regarding a complaint that “Doe” had sexually assaulted “Roe” in part because the School was using its policies from before the new Title IX regulations were implemented, which did not involve steps such as allowing cross-examination of witnesses (a requirement for college level Title IX investigations in the new regulations), rather than its new policies implemented after the regulations went into effect. The Court suggested that the college should use the new procedures even though the alleged conduct had occurred prior to the effective date of the regulations. "
"New York Federal District Court Holds That Title IX Regulations Apply Retroactively," Melinda Kaufmann, Pullman & Comley - School Law
The decision starts with the procedural history:
Plaintiff alleges that defendant is discriminating against him on the basis of sex in contravention of Title IX of the Education Amendments of 1972 ("Title IX") through procedural irregularities in its disciplinary process and its disposal of his own Title IX sexual assault complaint....
On January 31, 2020, defendant notified Doe that it was initiating a Title IX investigation against him as a result of that incident. On June 9, 2020, plaintiff filed his own Title IX complaint against Roe, alleging that he was too intoxicated to consent to sexual activity on the night of January 23. Roe was interviewed by a Title IX investigator concerning her own complaint on February 3, 2020, and interviewed again concerning plaintiff's complaint on July 17, 2020.
On August 4, 2020, RPI concluded by a preponderance of the evidence that it was more likely than not that Doe violated the school's August 24, 2018 Student Sexual Misconduct Policy ("the 2018 policy") by sexually assaulting Roe. As was his right, plaintiff requested a hearing to challenge the initial finding that plaintiff had violated defendant's sexual misconduct policy. That same day, defendant dismissed plaintiff's Title IX complaint against Roe, finding that he had failed to establish his allegations by the same standard. ... Doe timely appealed RPI's determination on August 11, 2020, requesting a hearing as to his claim's dismissal. ... Defendant denied plaintiff's appeal on August 25, 2020, claiming that plaintiff had failed to demonstrate an error in the denial that would merit a hearing.
Doe argued that the procedures of the Trump rules should have been followed:
Practically speaking, the new rules would guarantee Doe eight rights, among others:
(1) notice of the allegation, including sufficient details of the complaint and time to prepare a response;...
(6) plaintiff's ability to inspect and review evidence obtained as part of the investigation into the allegations;
(7) the ability for plaintiff's advisor, be it an attorney or a school-provided counselor, to cross-examine witnesses; ...
See U.S. DEP'T OF EDUC., SECRETARY DEVOS TAKES HISTORIC ACTION TO STRENGTHEN TITLE IX PROTECTIONS FOR ALL STUDENTS (2020), https://www.ed.gov/news/press-releases/secretary-devos-takes-historicaction-strengthen-title-ix-protections-all-students.
However, according both to the preamble of the new rules and to a blog post published by the Department of Education's Office of Civil Rights (the "OCR post"), the Department of Education "will not enforce [the new Title IX rules] retroactively." Instead, the OCR post states that a school will only be found to be noncompliant with Title IX if schools do not use the new rules to investigate and adjudicate instances of sexual harassment events "that allegedly occurred on or after August 14, 2020."
Doe and his counsel, naturally interested in the new rules' additional protections for students accused of sexual assault, spoke to defendant's Title IX coordinator to request that the remainder of his investigation and his impending disciplinary hearing be conducted under the 2020 policy. Citing the OCR post, defendant's Title IX coordinator responded that his hearing would follow the 2018 policy because the new rules were not retroactive. ...
In other words, whether the Department of Education would have penalized RPI for not complying with the new rules or not, it could easily have implemented the 2020 policy for Doe's hearing because it must implement that policy for all future Title IX complaints. Instead, defendant decided that it would be best to maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination that have long been considered essential in other contexts.
The opinion then cites Pointer v. Texas, 380 U.S. 400, 405 (1965) ("to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law").
Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process. Similarly, the Court finds that a school's conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action. That is precisely what RPI did in this case.
Doe has thus provided ample evidence to demonstrate both the elements of an adverse action and an irregular adjudicative process of his prima facie case for RPI's decision to follow the 2018 policy instead of its 2020 policy. Moreover, neither party can seriously dispute that plaintiff has been subjected to allegations of sexual misconduct. Plaintiff has thus at the very least established a reasonable probability of success on each of the first three elements of a prima facie case of discrimination under Columbia.
There still is the question of whether the university's unfair rules are discrimination on the basis of sex:
As to the fourth element, although there is little evidence in the record to date that RPI has been criticized for reacting inadequately to allegations of sexual misconduct by members of one sex, the Second Circuit has noted that "when combined with clear procedural irregularities in a university's response to allegations of sexual misconduct, even minimal evidence of pressure on the university to act based on invidious stereotypes will permit a plausible inference of sex discrimination."
Menaker 935 F.3d at 33.
Accordingly, and especially given both the frequency and the publicity of universities being taken to task on this particular and serious subject, the paucity of evidence as to the fourth element at this moment does not meaningfully undermine Doe's probability of success at trial. Of course, Doe must still show that gender was a motivating factor in RPI's decision to employ the 2018 policy instead of the 2020 policy. To defendant's point at oral argument, its decision to apply the 2018 policy for all sexual misconduct complaints filed prior to August 14, 2020 applies equally to both sexes and does not by itself provide evidence that gender played any role, let alone a motivating one, in its action. But Doe's evidence of sex discrimination is not so confined as to only include RPI's conscious choice not to employ the 2020 rules to his disciplinary hearing. Rather, there are two aces up plaintiff's sleeve for that game, each tied to defendant's handling of plaintiff's complaint against Roe. First, RPI specifically noted that Doe's complaint against Roe was insufficiently substantiated because he failed to prove that he did not voluntarily consume alcohol and did not initiate sexual contact with Roe....
In a vacuum, RPI's inventive use of its policies may not say much about the role Doe's gender played in the process, but Roe's complaint arising out of the same encounter was not subjected to any of these fabricated requirements...
The University argued that the Preamble and the OCR webpost said it could choose between old and new rules:
RPI counters Doe's showing by arguing that he has no right to have his hearing governed by the 2018 policy because both the preamble to the new Title IX rule and the OCR post state that the Department of Education will not enforce the new rule retroactively.FOOTNOTE 5 To hear defendant tell it, the preamble and the OCR post provide it license not to impose the new rules for sexual assault allegations where the alleged assault took place before August 14, 2020. In fact, defendant argues that those statements preclude this Court from finding to the contrary because it is bound to defer to an agency's interpretations of regulations that it promulgates. See Auer v. Robbins, 519 U.S. 452, 459-62 (1997).
Doe fires back that the preamble does not have the force of law and that the OCR post is not due any deference because it lacks formality and does not turn on the Department of Education's substantive expertise. Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (holding that Auer deference for agency's interpretations of agency regulations only applies to "an agency's authoritative, expertise-based, fair, or considered judgment" (cleaned up)).
Doe has the better of this argument for three reasons. First, even assuming that the preamble is entitled to deference, it would not be enforcing the new Title IX rules retroactively to use them for hearings occurring after August 14, 2020. After all, the preamble itself is unclear what it means when it discusses retroactivity.
It could mean, as RPI suggests, that the Department of Education would not sanction schools for not applying the new rules to any case where the alleged sexual assault took place before they took effect. But it could just as easily mean that schools would not face Department of Education sanctions if they did not reopen previously completed hearings that did not follow the new Title IX rules. After all, if a hearing—Doe's, for example—occurs under the new rules after August 14, 2020, from a certain point of view that hearing would apply the new rules prospectively because the rules were in effect before the hearing itself took place. In other words, defendant's proposed definition of retroactivity is not the only possible meaning of the word, and its argument does not powerfully sway the Court in defendant's favor.FOOTNOTE 6
Second, Doe is correct that the Court is not bound to follow the OCR post because it is not an authoritative statement entitled to Auer deference. Kisor, 139 S. Ct. at 2414. As such, the OCR post's position that the relevant date for retroactivity is the date the alleged sexual assault occurred need not be the last word on the matter.
Moreover, given the logistical problems with that interpretation, the Court is not inclined to rally to that position. Under the OCR post's standard, schools may maintain two parallel proceedings until every claim of sexual misconduct allegedly occurring prior to August 14, 2020 is resolved. But it is unclear when that day would come, because there may be several claims that a sexual assault occurred prior to August 14, 2020 that have yet to be brought to a school's attention.FOOTNOTE 7 After all, under either the 2018 or 2020 policies, "a Complaint of Sexual Misconduct may be filed at any time, regardless of the length of time between the alleged Sexual Misconduct and the filing of the Complaint.
It would thus be difficult for a school to provide any kind of timeframe for sunsetting its policies that predate the new Title IX rules when the anchoring principle keeping those policies alive is the hypothetical possibility that new sexual misconduct claims for sexual assaults that took place before August 14, 2020, could arise. The absurd—yet necessary— result of an institution following the OCR post's guidance to the letter would be that school's indefinite maintenance of an entire alternative procedure, perhaps behind a pane of glass labelled "Break in Case of Emergency," just in case a claim of sexual assault allegedly occurring before August 14, 2020 should arise....
Thus, even if RPI would not be subjected to Title IX consequences from the Department of Education for electing to use the date of the alleged sexual assault as the date that governs which policy it will use, it was still free to choose to use the 2020 policy. It decided not to, despite the sizeable administrative headaches that decision entails. Accordingly, Doe will have several viable arguments at his disposal in dealing with defendant's prospective non-discriminatory reason for not proceeding with plaintiff's hearing under the 2020 rules, and defendant's retroactivity argument does not dip plaintiff's showing of likely success on the merits below the requisite fifty-percent threshold.
The University also argued that the Obama Rules didn't violate the U.S. Constitution by denying due process, citing a Second Circuit District Court case, Doe v. Rensselaer Polytechnic Institute, (N.D.N.Y. Jan. 11, 2019), . That is of interest generally, but the judge here said correctly that it was completely irrelevant to the case before him:
Senior United States District Judge Frederick J. Scullin, Jr. found that its 2018 policy afforded accused students adequate due process rights and denied a preliminary injunction in similar circumstances. But that case is fundamentally distinguishable from this one.
First, the new Title IX rules had not even been proposed when Judge Scullin's Doe case was decided, let alone had taken effect and been ready for RPI to implement. Thus, a determination that defendant's policies were sufficient prior to the new rules taking effect means little in the wake of the sea change to the protections afforded to sexual assault respondents at colleges and universities. Moreover, the plaintiff in the earlier case did not advance a sex discrimination claim with the substantial evidence Doe has marshaled now. Instead, Judge Scullin only considered an attack on the procedure defendant employs, not an attack on how that procedure has been disparately applied to men.
In the "Balance of Hardships" section, the University makes a ridiculous argument, and gets ridiculed:
RPI's counterargument is the following:
To allow an individual found to have violated the Student Sexual Misconduct Policy to circumvent any and all university-based ramifications and sanctions. . . would be an injustice and provide carte blanche for engaging in rape, sexual misconduct and sexual harassment without any possibility of university-based sanction.
It is troubling enough that defendant frames protections for one individual's due process rights, whether that individual be male or female, as inciting campus sexual assault on a mass scale. But far worse is that by its own litigation position defendant seems already to be considering plaintiff to be guilty of violating the policy without giving him any opportunity to challenge its evidence. Needless to say, defendant's arguments on this point are ill-advised, and do little to demonstrate that the equities do not favor granting plaintiff's requested injunction.
Ultimately, Doe has shown that the balance of the hardships tips decidedly in his favor. After all, RPI's interest in punishing those it finds in violation of its sexual misconduct policy should be no greater than its interest in ensuring that its accused students are not unjustly punished to their lifelong detriment. Besides, it is tragically all too likely that more sexual assault complaints will follow this one. Delaying one hearing in light of some sobering evidence of discrimination against a male is an insubstantial loss for defendant, and certainly not an all-consuming one. But plaintiff only has one reputation, one career, and one life.
In the "Public Interest" section, the Court notes that both sides neglected to brief that one of the four factors (! --- so incompetent-- had these attorneys ever argued a preliminary injunction before?), but it was easy for him to decide it sua sponte.
"In exercising their sound discretion, courts of equity should pay particular regard [to] the public consequences in employing the extraordinary remedy of injunction." Winter, 555 U.S. at 24. Nevertheless, the parties both neglected to address this element. The Court will nevertheless assess the evidence on its own and determine whether granting Doe's injunction would align with the public interest.
It is with no great difficulty that the Court resolves that issue in Doe's favor. Although RPI correctly noted at oral argument that Roe's rights need to be protected in this case as well, that protection cannot come at the expense of Doe's in the absence of a fair determination of his culpability. Moreover, that the new Title IX rules exist at all is evidence that national policymakers have determined that protecting the due process rights of those accused of sexual assault on college campuses is a matter of grave national import. There is no cause to actively impede those efforts by allowing a disciplinary hearing to move forward despite credible evidence of sex discrimination.
Of course, the most critical issue at stake in the change from the old Title IX rules to the new is that respondents accused of sexual assault have a right to cross-examine their accuser at a live hearing. The Court does not lightly disregard the potential that this change could discourage accusers from coming forward. But that policy determination has already been made by those charged to make those decisions, and second-guessing that choice is well beyond the scope of this litigation. Accordingly, the public interest would not be disserved by granting Doe's requested injunction. Quite the contrary.
In the conclusion, the plaintiff wins and the University loses:
Against Doe's protected rights, RPI's showing of the equities amounts to hollow portents of rampant sexual assault and the impermissible assumption that plaintiff is already guilty despite not having so much as a hearing on a matter of grave import to his future. Plaintiff has thus proven each a likelihood of success on the merits, irreparable harm should a preliminary injunction not be granted, that the balance of the equities favors granting the injunction, and that the public interest would not be disserved by enjoining defendant from conducting its hearing against him. Accordingly, plaintiff's motion for a preliminary injunction must be granted. Defendant will be enjoined from proceeding in its hearing against plaintiff until its treatment of plaintiff has been tested and this case has run its course.
However, should both parties stipulate in writing to moving forward with the hearing under the 2020 policy, the Court would reconsider the ongoing necessity of this injunction. This allowance is not made because of any position concerning the retroactivity of the new Title IX rules. Instead, it is a recognition that Doe has made a showing that RPI's current regime may be discriminating against him on the basis of his sex, and if he is satisfied that the 2020 policy's additional protections would adequately shield him—which he has indicated that he believes they would—the Court would be willing to entertain allowing RPI to proceed. Barring that, this Court must be satisfied that defendant adequately protects male students like Doe before he can be threatened with discipline in this matter.
Doe v. Rensselaer Polytechnic, No. 1:20-CV-1185, October 16, 2020 (N.D. New York, 2020).
Title IX Law Generally
There is considerable doubt that universities follow even the Obama rules. A good examples is |John Doe v. Purdue, (7th Circuit, 2019, Barrett, J.). A student alleged (a) Section 1983 civil rights violation for lack of due process, and (b) Title IX violation for sex discrimination via lack of due process. He won on the motion to dismiss, on appeal. In particular, the university did not do anything to let the adjudicator be able to judge credibility of the witnesses-- no cross-examination, and not even a quoted transcript, just a paraphrase by the investigator. The Court rules that unlawful. The student also had to plead a loss of a contract interest (for Section 1983) and that his mistreatment was because of his sex (for Title IX). The Court ruled that he did. On due process, the Court said:
To satisfy the Due Process Clause, “a hearing must be a real one, not a sham or pretense.” Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 629 (7th Cir. 2016) ...
Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement.4 It is unclear, to say the least, how Sermersheim and the committee could have evaluated Jane’s credibility...
John also faults Sermersheim for being in charge of both the investigation and adjudication of his case. We have held, however, that blending these two functions in the university context does not necessarily render a process unfair. Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 675 (7th Cir. 2016). To rebut the presumption that university administrators are “honest and impartial,” a plaintiff must “lay a specific foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable.” Id. This burden is “heavy indeed,” typically requiring evidence that “the adjudicator had a pecuniary interest in the outcome of the case, or that he was previously the target of the plaintiff’s abuse or criticism.”
On sex discrimination for Title IX:
Some circuits use formal doctrinal tests to identify general bias in the context of university discipline....We see no need to superimpose doctrinal tests on the statute. All of these categories simply describe ways in which a plaintiff might show that sex was a motivating factor in a university’s decision to discipline a student. We prefer to ask the question more directly: do the alleged facts, if true, raise a plausible inference that the university discriminated against John “on the basis of sex”? ...
John casts his Title IX claim against the backdrop of a 2011 “Dear Colleague” letter from the U.S. Department of Education to colleges and universities. See United States Department of Education, Office of the Assistant Secretary for Civil Rights, Dear Colleague Letter (2011), https:/www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html...
The letter and accompanying pressure gives John a story about why Purdue might have been motivated to discriminate against males accused of sexual assault. But to state a claim, he must allege facts raising the inference that Purdue acted at least partly on the basis of sex in his particular case.
The Clery Act
Daniel Carter, an expert consultant on the Clery Act, broughtthis to to my attention. The Clery act seems to be specific to the criminal varieties of "sexual misconduct", a term universities apply to a wide variety of behavior much which wouldn't be called sexual misconduct in ordinary English, e. g., telling obscene jokes or discriminating against someone because of their sex. Also, it might just apply to student rights; if janitors or professors are involved, then may not have any of these rights (Indiana University seems to have adopted that interpretation; its rules are different for students and for employees). A lot of the Clery Act is about reporting requirements and notification requirements, but some of it seems to have procedural bite:
The Clery Act requires institutions of higher education participating in student aid programs to adopt policies prohibiting sexual assault, dating violence, domestic violence, and stalking...
The law already mandates much of what is being asked for by civil liberties advocates including explicit procedural safeguards. Proceedings must afford a “prompt, fair, and impartial process from the initial investigation to the final result”...
Clery in [sic] seeking a balanced approach also enumerates specific rights for both “the accuser and the accused” including:
- The same opportunities to have others present.
- The opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice who may be an attorney.
- Simultaneous notification, in writing of the result of the proceeding; options, if any, to appeal; any changes to the result; and when such results become final.
- Timely and equal access to any information that will be used during informal and formal disciplinary meetings and hearings.
--"The Federal Jeanne Clery Act Already Addresses Many Concerns About Campus Sexual Assault Cases," Daniel Carter, Campus Security Consultant, Huffington Post, Sep 14, 2017.
To be specific, the Clery Act requires, at CFR 34 668.46(k),
(k) Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking. As required by paragraph (b)(11)(vi) of this section, an institution must include in its annual security report a clear statement of policy that addresses the procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking, as defined in paragraph (a) of this section, and that -...
- (2) Provides that the proceedings will -
- (i) Include a prompt, fair, and impartial process from the initial investigation to the final result;...
- (iii) Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice;
- (iv) Not limit the choice of advisor or presence for either the accuser or the accused in any meeting or institutional disciplinary proceeding; however, the institution may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; and...
- (3) For the purposes of this paragraph (k) -
- (i) A prompt, fair, and impartial proceeding includes a proceeding that is -
- (A) Completed within reasonably prompt timeframes designated by an institution's policy, including a process that allows for the extension of timeframes for good cause with written notice to the accuser and the accused of the delay and the reason for the delay;
- (B) Conducted in a manner that -
- (1) Is consistent with the institution's policies and transparent to the accuser and accused;
- (2) Includes timely notice of meetings at which the accuser or accused, or both, may be present; and
- (3) Provides timely and equal access to the accuser, the accused, and appropriate officials to any information that will be used during informal and formal disciplinary meetings and hearings; and
- (C) Conducted by officials who do not have a conflict of interest or bias for or against the accuser or the accused.
(l) Compliance with paragraph (k) of this section does not constitute a violation of FERPA.
(m) Prohibition on retaliation. An institution, or an officer, employee, or agent of an institution, may not retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights or responsibilities under any provision in this section.
The drafting of the Clery Act is deplorable. On the surface, the Clery Act is just about reporting requirements, requiring that the university must *report* it has certain policies. It doesn't say the university must have those policies, or follow its policies if it does have them as policies--- just report them. That universities must be truthful and must follow their own policies can be inferred, I guess, but I'd rather the regulation said it directly.
Can something else be inferred? The Clery Act provides students, and perhaps employees, with procedures that protect them against dismissal for allegations of severe Title IX offenses such as rape. Can we infer that they are also protected against dismissal for allegations of mild Title IX offenses such as cold-calling girls more than boys? Otherwise, we get the absurd result that a university might choose to abandon the rape allegations against a professor and go after him for discriminatory cold-calling, since the same severe penalty could be inflicted more easily. It would be like the Supreme Court requiring serial murder defendants to be given special expert counsel and ample budgets for expert witnesses while allowing the county to administer the death penalty for jaywalking without any need for such procedural protections.
- "Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries," Nicholas R. Parrillo, Yale Law School, YJREG 36 (2019).