Elizabeth Busch is the Laura and Pete Walker Professor in American Studies, Co-Director of the Center for American Studies, and Director of American Studies at Christopher Newport University.

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The editorial world is abuzz with reactions to President Biden’s nomination of Catherine Lhamon to her previous post as Assistant Secretary for Civil Rights in the U.S. Department of Education (ED).  During the Obama administration, she was responsible for enforcing the infamous 2011 Dear Colleague Letter (DCL) on Sexual Harassment and Sexual Violence and its follow-up, a 46-page Questions and Answers (Q&A), which promulgated detailed recommendations regarding the manner of conducting campus investigations of claims of sexual harassment and violence under Title IX. These documents can be praised for bringing necessary attention to the historic failure of numerous institutions to respond appropriately to sexual harassment and assault, and for their mandated resources and support to survivors. The notoriety of the 2011 letter and its 2014 counterpart lies in their transforming Title IX into a mandate for a parallel campus justice system to adjudicate student-on-student sexual misconduct, the weak due process rights afforded to accused students, and the hasty manner by which they instituted sweeping new adjudication procedures. For these reasons, in 2017, former Secretary DeVos rescinded and replaced the 2011 and 2014 guidance. 

Though not a surprising nomination given that President Biden had already directed the current Secretary of Education Miguel Cardona to explore rewriting the Title IX regulations, the naming of Lhamon has raised the alarm to many legal scholars that the due process protections under Title IX are in peril. While it is possible, and even likely, that Lhamon and Cardona will draft new recommendations weakening the due process protections of the previous administration, a few points should be noted.  First, the effects of the more robust due process requirements have yet to be seen. A recent study by the Foundation for Individual Rights in Education (FIRE) has revealed that many of the nation’s top colleges and universities continue to deny basic due process protections to students, including the presumption of innocence, especially with respect to allegations of sexual misconduct. Second, the DeVos regulations take for granted the necessity of a parallel justice system on campus, which was a transformative effect of the Dear Colleague letter. Finally, if they are replaced, it may take more than a stroke of a pen to do so.

The controversy over Title IX’s due process mandates also uncovers a deeper issue—the growing chasm between those I’ll call “constitutionalists,” individuals committed to the rule of law, separation of powers, and legal traditions tied to the U.S. Constitution, and others whom I’ll call “advocates,” those who desire results-based politics, seek government involvement in the changing of societal attitudes, and seek the imposition of greater limits to or the restructuring of the rights outlined in the first ten amendments of the Constitution. This essay seeks to clarify the position of “constitutionalists” in the current Title IX debate. After outlining the major controversies of the Obama era in contrast to the current Title IX guidelines, this essay describes the worldview of constitutionalists as it expresses itself in the Title IX debate. The essay concludes by suggesting a deeper danger looming beneath the due process debate.

The Procedures Mandated by the Infamous “Dear Colleague” Letter

The 2011 DCL and 2014 Q&A focused on the needs of sexual assault victims/survivors, with the intention of providing prompt remedial measures to shield them from the trauma of a rape trial. The justification for these guidelines was to encourage victims to speak out, to be believed, and to receive necessary counseling and other resources. The addition of prompt supportive services to victims/survivors is laudable and necessary to correct past failings by colleges.

The letter also sought to make reporting, prosecuting, and punishing sexual misconduct easier than in criminal proceedings, which often result in low conviction rates. According to the 2011 DCL, the accusations of sexual violence on a college campus with the potential punishment of expulsion are not substantial enough to warrant the “procedural protections and legal standards” afforded to criminal defendants who face the possibility of incarceration. In essence, according to the OCR, the lower stakes of being found guilty of campus sexual misconduct justify fewer procedural protections of the accused.

The DCL enumerated substantial details for campus trial procedures, but did not require any live hearing in campus investigations or cross-examination of witnesses who testify, nor did they require an appeals process. The complainant was also not required to be present for the hearing or cross-examination. The only mandates relating to the trial were that the “preponderance of the evidence” standard (i.e., just over 50% likely) was to be used, and prompt action, adequate resources, and remedial measures to the victim/survivor were to be provided. Inadvertently, these rules intending to protect survivors have led to over 700 due process cases brought against colleges and universities by students accused of sexual misconduct.

The Current DeVos Regulations

Upon entering office, former Secretary Betsy DeVos promptly rescinded the 2011 DCL and its 2014 Q&A and began preparing draft proposal for new Title IX regulations. The new guidelines removed a number of ambiguities relating to the format of investigations and permitted schools to use the “clear and convincing” evidence standard for investigations. Of the added procedural protections, accused students are now permitted a live hearing, an appeals process, and a cross examination of witnesses.  Notably, the regulations returned to a presumption of innocence for the accused.

Second, the regulations narrowed the definition of actionable sexual harassment under Title IX. The 2011 DCL defined sexual harassment as “unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature” and included sexual violence as a form of harassment under Title IX. The broad nature of this language could include teasing, name-calling, or the use of words, and removed the previous requirements of a “severe, pervasive, and objectively offensive” nature of offenses, as R. Shep Melnick and advocacy groups like FIRE have also noted. The current regulations move closer to, but also expanded, the legal definition of sexual harassment under Title IX as set by the Supreme Court in Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education.

Third, these guidelines were imposed through the legal process mandated by the Administrative Procedures Act, so they will be difficult, though not impossible, to alter formally. In a careful and detailed analysis of the final Title IX regulations, the Brookings Institute’s R. Shep Melnick concludes of this process:

Given the frequency with which the Trump administration has acted precipitously, erratically, and without appropriate respect for legality or expertise, the Department of Education deserves credit for going through a transparent, time-consuming, and rigorous rulemaking process and respecting the Supreme Court’s interpretation of Title IX. This process not only generated more public participation than any other rulemaking in Title IX history, it also forced the Department of Education to address a number of problems with its 2018 proposal.

By proceeding in this manner, the previous administration reminded onlookers that there is a formal process required under law in order to make such substantial changes.

Will there be a Roll Back of Due Process Rights?

If Lhamon is confirmed, the ED might refuse to enforce the DeVos guidelines. The net effect would be to allow any college or university that neglected or decided against altering their policies to line up with the current Title IX regulations to maintain their status quo. And, with an open hearing scheduled for the first week of June, new guidance from the ED is to be expected. They will likely recommend a return to the “preponderance of the evidence” standard, which would be problematic if the other due process protections, such as the presumption of innocence, right to cross-examination, live hearings, availability of advocates, or appeals processes were also to be eliminated. Their argument would likely be the same as Lhamon made before, namely, that a campus hearing is not a criminal investigation.

However, the deeper question is how the current administration plans to remake Title IX.  Will they utilize informal guidance and act as if it is law, or will they conform to the requirements of the Administrative Procedures Act? That this is even a question reveals a foundational tension underlying the due process debate.

Zero-Sum Game

The Title IX debate has morphed into a zero-sum game between those supporting the due process rights of the accused and those seeking to advocate more fervently for survivors’ rights. This is a false dichotomy.  As over a dozen University of Pennsylvania law professors have correctly noted, “providing justice for victims of sexual assault” need not require the subordination of “so many protections long deemed necessary to protect from injustice those accused of serious offenses.”

Nevertheless, there is a trend among advocates from a variety of political affiliations left and right, who push for desired results even if it means subverting the legal process or constitutional principle. To these advocates, justice for survivors is often not reached in cases of sexual assault, so their trust in the system has eroded. Many see constitutional principles like due process, legal precedent, and rule of law as incompatible with, and subordinate to, protecting and believing the victims/survivors of sexual assault. Advocates like Catharine MacKinnon, Catherine Lhamon, Vanita Gupta, and the National Women’s Law Center see the legal protections of the accused as a way to “silence sexual assault survivors.” This is why, as Melnick has also observed, the DCL’s deeper purpose was “to change social attitudes.” In this respect, the 2011 letter was extremely impactful, contributing to the emergence of the #MeToo movement.

If a dysfunctional Congress or burdensome legal requirements interfere with swiftly advocating for victims, advocates contend, perhaps they should be superseded. This is why the use of a swift and malleable bureaucratic tool like a Dear Colleague letter is so appealing. The orientation of advocates on the feelings and experiences of survivors over the rule of law is summed up by one commentator who urged the ED to “spend more time interviewing victims of sexual assault than worrying about whether the accused’s life will be ruined.”

Constitutionalists, by contrast, worry about what Lincoln called the “perpetuation of our political institutions.” The Title IX debate is not just about due process of the accused, but the integrity of this constitutional republic. They argue that the rule of law, and due process rights in particular, protect everyone from unjust conviction. Moreover, they implore citizens, as did James Madison, to uphold their duty of “prudent jealousy” against any experiment on individual liberties. Constitutionalists recognize why issuing new legal requirements through a Dear Colleague letter creates inadvertent constitutional conflicts, unintended legal consequences, and a partisan divide epitomized by the national reaction to the OCR’s 2011 letter and the hundreds of due process cases that resulted. Without having solicited feedback from such interested parties, as required by the Administrative Procedures Act, the 2011 guidelines inadvertently created conflicts of interest between public universities’ obligations under the DCL and their obligations under the Constitution and the laws of their respective states and they subverted the rights of the accused.

Constitutionalists understand the defense of civil rights as an extension of their nonpartisan support for the rule of law, as scholars like Martha Nussbaum have joined the ranks of those urging to maintain DeVos’s due process protections. However, constitutionalists’ focus on due process, whose advocacy is very much needed, assumes that the legal system upon which it is based is worth protecting.  The truth of the matter may be that many victims’ advocates may not desire it so.

Which is Worse—False Acquittal or False Conviction?

America’s constitutional jurisprudence holds false convictions to be the greatest miscarriage of justice, and consequently affords significant due process protections (such as the right to counsel, the right to remain silent, and the assumption of innocence until proven guilty) to the individuals accused of criminal violations. A wrongful conviction occurs when an innocent person is found guilty of a crime he or she did not commit. A false acquittal is a miscarriage of justice in the other direction—a rapist, for example, is found not guilty of a crime.

William E. Thro, my coauthor on Title IX: The Transformation of Sex Discrimination in Education, has suggested that the Title IX debate may indicate the desire by some advocates to move towards an inquisitorial, rather than an adversarial system of investigation. He explains:

The Anglo-American-Australasian justice system is designed to prevent false convictions. The independence of investigation from prosecution, the grand jury requirement, the guilt beyond a reasonable doubt, the exclusionary rule, confrontation clause are all designed to ensure that innocent people are not convicted. The price of this design is that sometimes guilty people … go free. In contrast, the Title IX sexual assault system is designed to prevent false acquittals. We want to ensure that all rapists are punished. The price of this design—which is in reality the European inquisitorial system—is that sometimes innocent people get convicted.

Because no system is perfect and there will always be errors, one must ultimately ask which injustice is greater—the conviction of an innocent person or the failure to convict the guilty?  Although the U.S. system under the Bill of Rights views false conviction as the greatest harm a government can perpetrate, the European system sees the failure to convict a guilty party as the greatest danger. The justice system described by the 2011 letter may bear more similarity to an inquisitorial system of justice than to a constitutional one, which if reinstated, may set a precedent for other areas of civil rights prosecution.

If constitutionalists wish to persuade advocates, they need to show how due process protections actually support the victims as well as the accused. Everybody wins when a guilty person is convicted through a fair and legal process, though this will sometimes not happen. Perhaps the greater threat is a flawed system with the likelihood of a conviction being overturned, as could happen hundreds of times.  More importantly, constitutionalists need to spend more time providing relatable arguments regarding the rule of law in general. If the trust and attachment to our constitutional republic is waning, the potential threat to due process rights under Title IX is merely symptomatic of a greater disease.