In August, the Chronicle of Higher Education published a defense of the Title IX regulations implemented by the Trump administration. The author, Tamara Rice Lave, argued that the regulations should be merely reformed, not rejected entirely. The revisions that Lave suggests are extremely limited, and one of them has been rendered moot by a Massachusetts district court decision that found the regulations’ suppression clause (which required the inadmissibility of any claims not subjected to cross-examination, thus providing an easy loophole to any perpetrators who realized that they had said something incriminating during the investigation; by simply not appearing at the hearing, their statement was prohibited from being considered) unconstitutional. I argued in this venue that the Trump-era Title IX regulations were harmful, and suggested ways for mitigating that harm. Lave’s suggested revisions seriously underestimate the damaging effects that these regulations have already had.
More significant than Lave’s suggestions for revisions are her claims that the Trump regulations constitute a step forward in Title IX enforcement. Her arguments to this end include the invocation of the report of the ABA Criminal Justice Section Task Force on College Due Process Rights and Victim Protections, which, she claims, largely informed the new regulations. Because that Task Force included members from a wide spectrum of political persuasions and interests, including victims’ advocacy groups, their influence, according to Lave, speaks to the value of the regulations. She also claims that the regulations represent important steps forward in terms of recognizing and addressing the harms of Title IX violations. Her arguments rely on dubious and sometimes outright false claims, and ignore the central aspects of the regulations that victims of gender-based harassment and violence and their advocates have criticized. Ultimately, Lave’s arguments fail to support the claim that the regulations are worth preserving in any meaningful form.
The Task Force Recommendations and the New Title IX Regulations
Lave significantly misrepresents the connection between the new Title IX regulations and the recommendations from the ABA Task Force. To put it bluntly: none of the most controversial elements of the new Title IX regs can be found in the recommendations from the Task Force, and virtually none of the recommendations of the Task Force can be found in the new regulations. For example:
- The Task Force states a preference for adjudicatory processes (i.e., processes with hearings), but does not recommend requiring only adjudicatory processes. Instead, it offers recommendations for institutions who retain investigatory models.
- The Task Force recommends separating the roles of the investigator and the decision-maker, taking the position that investigators may become biased in the process of investigating the complaint. However, it does not exclude Title IX officers from being decision-makers, as the regulations do; more on that point below.
- The Task Force recommends that institutions eschew the two most common evidentiary standards used in Title IX cases (the preponderance of evidence standard and the clear and convincing standard), in favor of new language. The regulations ignored this recommendation entirely.
- The Task Force recommends that “Character and reputation evidence regarding the parties (both positive and negative) should be excluded from the decision-making stage. Evidence of the past sexual history of the parties should be disfavored and admitted only when it provides compelling evidence on a disputed issue of relevance to the misconduct charge or its defense.” None of this recommendation is evident in the regulations; while administration describes the two exceptions to the general prohibition of the use of prior sexual behavior as “limited,” in fact, the second exception—that it be used to prove consent—is broad, and is precisely the kind of problematic use that the Task Force seemed determined to exclude.
- The Task Force does not recommend that parties be subjected to cross-examination by the agent of the opposing party. It recommends that parties be subject to questioning, but states clearly that the questioning should be done by the decision-maker, thus avoiding the adversarial and potentially traumatic experience of being cross-examined by the advisor (possibly a well-paid, well-trained lawyer) of the opposing party. The Task Force explicitly describes its recommendations as distinguishable from the Sixth Amendment rights afforded to parties in a court of law, and names the possibility of trauma as the motivation for that difference.
- The Task Force does not make any recommendations about limiting the types of Title IX cases that trigger institutional responsibilities; nowhere in their recommendations, for example, do they suggest that institutions should rely only on actual knowledge (rather than being held responsible for what they should have known), nor do they suggest limiting triggering cases to those that occur on US soil, as the regulations do. The Task Force recommendations neither state nor imply that narrowing the kinds of incidents that trigger Title IX responsibilities is necessary or desirable.
- The Task Force does not recommend the requirement of a presumption of innocence of the complainant, which the new regulations impose.
The new regulations bear virtually no resemblance to the Task Force recommendations, and to invoke the Task Force as evidence of the regulations’ fairness and value is disingenuous at best.
Against Lave’s Case for the Virtues of the New Regulations
Do The Regulations Cover Previously Uncovered Discriminations?
Lave identifies several supposed virtues of the new regulations, including that they “recognize quid pro quo and Clery Act/Violence Against Women Act offenses as discrimination. That means a college employee conditioning an aid, benefit, or service on an individual’s unwelcome sexual conduct or ‘a single instance of sexual assault, dating violence, domestic violence, or stalking’ constitutes sexual harassment. There’s no longer a need to prove additional harm.” But these inclusions are only necessary and helpful in the context of the regulation’s adoption of the definition of actionable sexual harassment from Davis v. Monroe County Board of Education: “harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” The regulations adopt the Davis definition in replacement of the broader language of the 2011 Dear Colleague Letter (which the Trump administration rescinded), which describes actionable sexual harassment as that which “interferes with or limits a student’s ability to participate in or benefit from the school’s program.” While Lave is technically correct to imply that the DCL standard retains an emphasis on harm, the harm that it invokes is significantly weaker than the harm invoked by the Davis definition. Moreover, there is little doubt that either quid pro quo or Clery Act/VAWA offenses would meet the standard articulated by the DCL; certainly there has never been a serious controversy about whether quid pro quo cases met the standard for actionable sexual harassment cases under Title IX (in fact, the 1977 magistrate’s decision in Alexander v. Yale, which established that sexual harassment constituted sex discrimination, thus recognizing it as a violation of Title IX, was in response to a quid pro quo case). Lave is giving the Trump regulations credit for solving a non-existent problem.
Are the New Regulations More Fair?
Lave praises the regulations for requiring institutions to fully investigate both sides, provide a written report to all parties in advance of a hearing, ensure that the decision-maker is impartial, and hold live hearings that include witness questioning. On the first two points, Lave may well be correct; prior to the regulations, the OCR was notoriously vague on what qualified as an investigation, and there were few if any guidelines about what and how to communicate with parties. Note, however, that neither of these requirements have been criticized by organizations supporting victims. Similarly, there is no controversy regarding a requirement of impartiality on the part of the decision-maker; what is troubling about the new regulations is that they define Title IX officers as by definition biased, thus precluding them from any decision-making capacity whatsoever—and implying that having expertise in handling Title IX cases is necessarily biased. The cross-examination requirement of the new regulations has, unsurprisingly, been received with outrage on the part of victims’ advocates, but not because those advocates argue that complainant’s claims shouldn’t be questioned. By mandating that the cross-examination must be done by an agent of one of those parties (not an impartial party, such as the decision-maker), the regulations inject a highly adversarial quality into the hearing, one that will almost certainly discourage many survivors from pursuing university proceedings.
Having described the DCL of 2011 as unjust (without providing evidence), Lave claims that undoing the Trump regulations “wrongly assumes that victims/survivors won’t benefit from having robust procedures,” and notes that such “robust” procedures are “especially important when the accused is, for instance, a star athlete or a popular professor.” Like many of the regulations’ defenders, Lave seems to assume that “robust” procedures are ones that mirror as closely as possible judicial procedures (hence the need for adversarial cross-examination, the presumption of innocence, and so on). The claim that such procedures are particularly effective when the respondent has accrued significant social clout and standing seems nothing short of delusional. Bill Cosby is a free man; Jeffrey Epstein evaded charges for far too long; a significant proportion of sexual assaults reported to police departments are never investigated; and the backlog in processing rape kits means that the kind of evidence that could be used in a court of law is often not available. There is little reason to believe that importing judicial practices, norms, and standards to campus procedures will ensure that more assailants will be held accountable for their actions.
But there is something more pernicious in this defense of procedural robustness, even beyond the carceral logic that underlies it. Lave seems to be arguing that by rendering the procedures more stringent in their defense of the rights and interests of respondents—it is difficult to imagine any other definition of “robust,” as the regulations do nothing to forward directly the rights and interests of complainants—the results of those procedures become more convincing. Make the bar higher, Lave seems to be saying, and the results will be perceived as fair, and victims will enjoy the hard-earned recognition of the injustices that have been imposed upon them. Putting aside for the moment whether this algorithm makes sense—it’s not at all clear that judicial outcomes, even when they find individual perpetrators guilty of sexual misconduct, serve to affirm the credibility of victims, either as individuals or as a group—it misses entirely the chilling effects of these ostensibly robust standards. The prospect of being cross-examined by the agent (likely a trained attorney, potentially a well-heeled one) of the person who sexually assaulted you would make many survivors choose not to participate in a hearing at all; the requirement to presume the innocence of the respondent, but not the good faith of the complainant, puts the complainant at a distinct disadvantage, and thus could also disincentivize the use of the university’s processes. Like the criminal and judicial procedures they seek to emulate, these regulations impose barriers that ensure that fewer processes will be undertaken, and that fewer perpetrators will be held accountable for their actions.
Conclusion
Lave’s defense of the Trump regulations conveniently omits any discussion of their most harmful effects, and the credit that she gives them is unwarranted. Those committed to reducing sexual harassment in educational institutions, including sexual assault, are right to pressure the Biden administration to start from scratch, and develop regulations that neither serve to discourage victims from engaging with institutional procedures nor limit institutional responsibilities in such capricious and harmful ways. Perhaps most importantly, the new regulations should have the moral wherewithal to recognize that the justifiable mandate for fair and equitable processes does not require the belief that the harms imposed by sexual harassment and sexual violence are equal in kind and quantity to those experienced by respondents who encounter flawed processes. Such attempts at equalization are himpathetic distortions that undermine the original purpose and motivation for Title IX and the recognition of sexual harassment and sexual violence as acts of sex discrimination. New regulations should do a better job of keeping their eyes on the prize: holding educational institutions accountable for responding effectively to, and acting effectively to prevent, gender-based violence and bias on campus.
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Ann J. Cahill
Ann J. Cahill is professor of philosophy at Elon University, where she has contributed over the last two decades to the development of institutional policies and practices regarding sexual harassment and sexual violence. She has published widely on the topic of sexual assault, including her 2001 work Rethinking Rape (Cornell UP), as well as other topics at the intersection of feminist theory and philosophy of the body, including beautification, miscarriage, and sexual ethics. She is currently working on a co-authored work addressing the social, political, and ethical meanings of voice as human-generated sound.
