On Friday, the Education Department correctly withdrew two famous examples of regulatory “dark matter” issued during the Obama administration: its April 4, 2011 “Dear Colleague Letter” about “sexual violence” and its April 29, 2014 “Questions and Answers on Title IX and Sexual Violence.” These “guidance” documents heavily intruded into how schools handle complaints of sexual harassment and rape, banning the clear-and-convincing evidence standard, restricting cross-examination rights, and restricting the appeal rights of accused people.
As a former Education Department lawyer, I believe it was correct to withdraw these requirements. The restrictions on cross-examination pressured colleges to violate student rights under state law. Under many state Administrative Procedure Acts, such as Oregon’s and Washington’s, students have a right to cross-examine their accuser. Yet the 2011 “Dear Colleague” letter urged colleges to restrict cross-examination, saying that the Education Department “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” That pressure also likely violated federal court rulings about students’ due process rights that are binding in certain parts of the country, such as rulings that students are entitled to cross-examine their accuser when a case boils down to a credibility contest. It is very perverse to ban cross-examination when the Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth.”
These documents improperly deviated from past Education Department positions respecting accused students’ appeal rights. The Dear Colleague Letter told colleges not to allow accused students to appeal findings of guilt unless they also allowed complainants to appeal not-guilty findings—a position that some civil liberties groups viewed as akin to double jeopardy.
Under the Clinton administration, the Education Department’s Office for Civil Rights, where I used to work, had conceded that a school need not let accusers challenge not-guilty verdicts, because it is the accused who “stands to be tried twice for the same allegation.” (Skidmore College, OCR Complaint No. 02-95-2136 (Feb. 12, 1996)). Similarly, under the Bush administration, it recognized that “there is no requirement under Title IX that a recipient provide a victim’s right of appeal” (University of Cincinnati, OCR Complaint No. 15-05-2041 (Apr. 13, 2006)), “whereas an accused student’s appeal rights are a standard component of University disciplinary processes in order to assure that the student is afforded due process.” (Suffolk University Law School, OCR Complaint No. 01-05-2074 (Sept. 30, 2008)).
The Obama administration overturned this past practice and imposed a contrary rule on colleges in its 2011 Dear Colleague letter, without even going through the notice-and-comment process for new legal requirements prescribed by the Administrative Procedure Act.
The Obama administration was also wrong to ban the clear-and-convincing evidence standard. Colleges used a higher standard in campus disciplinary proceedings for many years, with no objection from judges. As James Picozzi noted in 1987 in the Yale Law Journal: “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987)). The American Association of University Professors has described the clear-and-convincing standard “as essential in any fair proceeding.”