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Brett A. Sokolow

Sokolow

New federal regulations on how to handle sexual misconduct on campuses will soon be issued by the U.S. Department of Education’s Office for Civil Rights.

While some provisions are good, many will create greater confusion without improving the system.

The Obama administration was focused on the rights of victims of sexual misconduct under Title IX, the federal law barring sex discrimination in education. By contrast, the Trump administration is reshaping Title IX around the rights of the accused.

Among the positive changes are provisions that reconcile federal rules under two statutes, Title IX and the Violence Against Women Act, Section 304, that have been misaligned in ways that have confused colleges and complicated compliance.

It is also good to see the OCR clarify investigation procedures and finally make clear that its rules for colleges are also almost entirely applicable to K-12 schools and districts.

The bulk of the proposed rules would broaden due process protections for students accused of sexual misconduct in school and college environments, while weakening longstanding protections for victims/survivors.

The administration aims to transform what have been historically informal school disciplinary processes into adversarial, quasi-criminal legal proceedings with live hearings, evidentiary rulings and attorney-led cross-examination.

But when was the last time making any system more complex and bureaucratic made it better?

Due process proponents seem to think that the new rules, put forward by Secretary of Education Betsy DeVos, will save everyone’s sons from horrible college and school administrators who think all men are potential rapists. Or some such nonsense. Having worked with school resolution systems for 21 years, I don’t think the new rules will broadly accomplish fairer outcomes, unfortunately.

The resolution system schools have in place for sexual misconduct allegations could surely benefit from some changes and refinements, but the proposed changes won’t solve the unfairness problem.

That is because the OCR has confused procedural unfairness with substantive unfairness, and fixing the procedures alone will not result in more accurate substantive outcomes.

Better substantive decisions will depend on having neutral and impartial decision-makers in place, and then training them comprehensively in the fundamentals of good decision-making.

You can’t overcome biased decision-making with all the due process in the world. Live hearings won’t do it. Cross-examination can’t do it.

Put another way: If the administration mandates that colleges and schools mirror criminal prosecutions procedurally, but doesn’t improve the substantive training and impartiality requirements, unfair outcomes will be the result, just as they are in the criminal system.

While some additional due process protections for those accused of sexual misconduct are welcome, the proposed regulations would take it way too far.

They would, for example, require schools to provide immediate, detailed notice of the allegations in writing before any school interview of the accused.

In a standard criminal process — which this is not — the police can question a suspect about alleged criminal activity without notice. The OCR says this is a needed due process protection. Except it isn’t. There is no reason to require a more rigid process under Title IX than is required by law in criminal investigations.

Most colleges resolve sexual misconduct allegations through robust investigations. The proposed rules would also require live hearings before impartial decision-makers to review the results of the investigation, interview witnesses and review evidence.

However, there is no data to show that live hearings are less prone to error than results produced by non-adversarial investigations. And the draft of the regulations released in November indicates that the final rule the department plans to issue would mandate cross-examination between the parties, as well.

There is no research to indicate that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct case a full and fair opportunity to review and contest all evidence prior to a final determination. In fact, because cross-examination relies on talented questioning and sophisticated rules of evidence, it is susceptible to great variations in its effectiveness.

The Education Department has not adequately examined the effect of these new rules on victims/survivors or the burden imposed on colleges and schools. Many may chill students’ willingness to report sexual misconduct to school officials, which would completely undermine the purpose of Title IX.

If the administration truly wanted to fix the problem of unfair resolutions of misconduct allegations, it would start by requiring more rigorous training and accountability measures for the college administrators who oversee these processes and set standards for how colleges choose decision-makers in these cases.

Instead, the rule changes will almost certainly ignite years of litigation and political battles. Colleges and schools will be caught in the middle between factions focused on victims/survivors and those focused on the accused. Who will win? That’s unclear. But who will lose? We all will.

I support rational, clear due process requirements for resolutions of all campus disciplinary matters — not just for sexual misconduct. But I fear that these new regulations will turn Title IX disciplinary proceedings into adversarial quasi-criminal courtrooms without making anything fairer for anyone.

Brett A. Sokolow is president of the 3,500-member Association of Title IX Administrators.

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(20) comments

Hive

The BO is not a name...Bend Over!

Hive

Some stuff evangelical christians (low case intended) and other true believers conveniently brush aside, as they race for the cliff (lemmings that they are).

BO!

Hive

Lede line here says, "New Federal Rules..."

Might this be because we are getting what we deserve? We elected a person who does and thinks unlike everything your (intended) mother taught you (I hope your mother was concerned enough to teach)! Duh!

Three rules:

Speak and Do Truth only; make the other guy look good, always; Leave a place better for being (there)!

Hive

Lemony, like I said before, if I were on Winona County Board or legislature, we'd be debating outlawing lawn ferts and use of rifles in county or our restrictive SE MN are....every stream in once pristine SE MN trout Mecca is now polluted. Nice!...as we farmer smarties swagger.

lemon drop

Neither family farms that LSP hates nor I have to bow down to your silly definition games. Especially to political hypocrites like JD14 and Hive get off my lawn. So predictable!

jdinfinity3

Hive, pollution is only pollution to ld if it affects her, or especially her pocketbook.

She could care less about the tainted water into the aquifers as long as she and her farm cronies get their $$$$...

No care for the environment, or people getting hurt.

Just profit and business at usual at the cost of health and human welfare of our community and its' future generations.

But we all know that tune with ld, time and time again...

Hive

Not!

Then as now..."everybody knows"...but current pols are far more greedy/selfish, and predator pols learned from practice about preying upon a lazy electorate, and more people are apathetic, still, here and there, "everybody knows."

A "whitened sepluchar" still holds fetid matter...and Trump is indeed fetid, nat what I wa raised to be! Trust him do ya? Well, cannot cure dim.

Mr.Johnson

Mr. Hive, Did you mean to say...

just as the obfuscating left, who started it all by impeaching Trump to even the score for Clinton, will learn and America will learn about scum. The Nixon impeachment had bipartisan support.

Hive

"Everybody knows," as LC wrote is the truth.

"Defense" of the boy who cries wolf lots" just does not cut it, as, hopefully, an active electorate and lazo's will recall.

Seems well-practiced defenses cannot make "alternative facts," or bullroar into something voters can gulp.

Ya gotta luv it!

Hive

It is always a question of "deportment or conduct,"

just as the obfuscating right, who started it all by impeaching Clinton to even the score for Nixon, will learn and America will learn about scum.

And, Lemony, another lying party wonk-dinger, I'll ask the question another asked, again...

Lemon Drop, "What is your definition of pollution?"

This one will hang around your neck like the rotting innocent "Albatross"...

Yet, "We the People," get what we deserve, when we let evil thrive, don't we?

jdinfinity3

Dodgers yes. Dingers no.

We leave that to you ld. Along with crony phony baloney crew, packfan, khansky and johnson.

The delusionally delusional sheep being led to slaughter by el president supremo.

Oh, and your fictitious lord almighty getting you off on a free pass regardless of y'all treating the world and other ppl like expendable means to an end....

*yawn*

Bored now....

lemon drop

You and JD13 are the biggest hippocrates on here. Dingers and dodgers

lemon drop

Great answer. But not surprising

Hive

Oooops, forgot! Dog loves its own!

Hive

Lemony...natch, what you say is what was expected...how's you like the fumes?

Mr.Johnson

Mr. Hive, I’m still waiting for definition of “Wingman”. My thought is that sometimes it’s better not to reply and that’s OK. However, one should not expect others to reply to them as well them.

Hive

Dude, you ask, as master of the obvious. I have little time for bullroar!

Hive

Might be best to deal with the problem directly at the village level, instead of using a "regulator" which is really nothing more than a scapegoat, like a committee is used by lazy legislators and a place to place blame...duh.

Reminds me of Lemony here who will not respond to Mr. J's (?) -- "what is your definition of Pollution?" --paraphrased the quote. Or, the current Trump defenses by Dershowitz...bogus, sidestepping the crux of the matter...law! Right Kill?

lemon drop

Have no idea what your talking about? What is my definition of pollution? Or who is polluting? I agree that there is pollution, we disagree on who's polluting?

Some are doing way more than others in polluting and or preventing it, Correct? If the village you speak of to make decisions is made up of biased people or are inherently against something and who are in the minority should they be the ones deciding? Using regulations and regulators as scapegoats is sidestepping, and diminishing the fact that they are unbiased experts in various fields.

Hive

Maybe? Maybe not? Regulation (by the village) comes when villagers ignore their roles as villagers. Too much PC-ness comes back to bite us in the arse, seems to me.

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