Last week, Secretary of Education Betsy DeVos announced that her department would rewrite guidelines for how universities should address sexual misconduct cases.

In her announcement, DeVos noted that her department would seek “public feedback” to create a new system, replacing President Barack Obama administration’s 2011 Dear Colleague letter. Her speech also cited the work of an American Bar Association task force that studied misconduct policies and included Pamela Bernard, vice president and general counsel for the University. The group produced a document outlining guidelines to ensure due process rights in sexual misconduct cases. 

“Other groups have already made progress on these difficult issues,” DeVos said. “The American Bar Association established a task force comprised of lawyers and advocates from diverse backgrounds and varying perspectives. They found consensus and offered substantive ideas on how we can do better. Schools should find their recommendations useful.”

However, some students have expressed concern with Bernard’s involvement, which also included participation in a July 13 listening session with DeVos. Bernard—a past president of the National Association of College and University Attorneys—declined to be interviewed for this article. 

Jessica Gokhberg, a fourth-year Ph.D. candidate in the literature program, said she is concerned about the intentions of the Education Department, especially since it rescinded a 2015 Dear Colleague letter on transgender rights. Gokhberg is also worried about the influence of stakeholders on the policy once it is opened to public feedback. 

Background

Understanding the policy issues requires looking back to the Obama administration. In 2011, the Department of Education issued guidelines in a Dear Colleague letter reminding universities of their obligations—stemming from Title IX of the Education Amendments Act—to protect students from sexual harassment. This guidance instructed schools to maintain equitable procedures for handling cases of sexual violence and discrimination, but it has long been an object of controversy. 

For some, it encouraged schools to participate in practices that do not fairly protect the rights of accused students. For others, it was a victory and recognition of the flaws in systems that had failed victims, sparking an increase in complaints to the Office of Civil Rights about universities' enforcement of sexual misconduct policies. 

As a letter, the 2011 guidance did not carry legal force because it did not go through an extensive rule-making process. However, some have claimed that it effectively acts as law because the Department of Education could use it in evaluating whether schools were in violation of Title IX. 

DeVos’ announcement last week did not rescind the letter but did indicate that she intends to revisit its instructions.

“This marks the start of the open and transparent process to replace the current guidance with a workable system that is fair for all students,” said Liz Hill, press secretary at the Department of Education. “The 2011 guidance will be replaced, and in the interim, the Department will make clear to schools how to fulfill their current obligations under Title IX. The Office for Civil Rights will work directly with schools to provide support and technical assistance.”

The ABA’s Executive Board launched its task force in November 2016 because the organization expected the 2011 Dear Colleague letter to be reconsidered by the new administration, noted Andrew Boutros, a partner with Seyfarth Shaw LLP and the ABA task force’s chair. 

“It was a project that we took on that I spearheaded with an eye toward developing recommendations to benefit the public and contribute to dialogue that we expected the Department of Education to embark on when the new administration was getting started,” Boutros said. 

He noted that the task force had a diverse array of members. It included defense advocate group Families Advocating for Campus Equality and the victims’ rights group SurvJustice, as well as officials from academic institutions such as Bernard. 

The group worked nights and weekends, Boutros added, paying out of pocket for their travel expenses. In June, the committee published its 22-page report, which was unanimously approved by the American Bar Association’s Criminal Justice Section Council. Reaching consensus was critical to their efforts, Boutros said.

“It’s important to point out that our recommendations were unanimous and bipartisan and reflect the sign-off of victim advocate groups and defense advocate groups,” Boutros said. 

“The fact that we could get everyone to sign off was pretty historic,” he added.  

The report

What is striking about the committee’s report is that, for the most part, its recommendations are similar to Duke's current sexual misconduct policy. 

Still, there are some important differences. 

For one, the task force encouraged schools to study the potential of using restorative justice approaches for some sexual misconduct cases. Restorative justice seeks to reintegrate a person found responsible of sexual assault into a community while also providing healing for a victim and their community. 

“[Restorative justice] has been shown to be effective at lowering recidivism and empowering victims in both academic and non-academic settings,” the report notes. 

Another difference between the task force’s recommendations and current Duke policy is its suggestion for a reworked standard of evidence. The 2011 Dear Colleague letter reminded schools that they are to use a “preponderance of evidence” standard when adjudicating sexual assault cases, meaning that if a hearing body is more than 50 percent sure the assault occurred, then they should find the accused responsible. 

The task force noted that it disagreed internally about what the best standard would be, and Boutros said it was probably the topic the committee discussed the most. However, the committee was able to find common ground.

“When we looked past labels…what we realized was that the concern was that the standards were not being applied or used correctly,” Boutros said. 

The authors of the report instead created a two-paragraph set of instructions for panelists hearing sexual assault complaints. Boutros likened these to jury instructions.

The critical clause asks panelists to find a person responsible if there is “sufficient evidence that is relevant, probable and persuasive to convince them that the respondent engaged in the alleged misconduct, and that the evidence supporting a finding of responsibility outweighs any evidence that the respondent is not responsible for the alleged misconduct.”

Gokhberg said she worried about the transparency and uniformity of how this type of standard would be applied.

A third difference is that the task force encouraged schools not to have a presumed sanction for those found responsible of sexual assault. 

Duke’s current policy offers a variety of sanctions for those found responsible but notes that expulsion is the first sanction the hearing panel must consider. The University moved to the current policy in 2013 in response to student activism.

Boutros said the committee’s recommendation was a point of agreement—members did not think a one size fits all policy was the best approach. Members also suggested an expulsion-first approach could make victims of sexual assault hesitant to report. 

Instead, the task force looked to model the sanctioning process after the principles of federal sentencing guidelines, Boutros said, encouraging panels to make the punishment commensurate with the offense and its circumstances.

One final point of contention is that the task force encouraged hearing panels of three or more members to be unanimous in their decisions. This is one area where Duke's procedure is similar to the report's discussion. Duke requires unanimity in findings of responsibility for sexual misconduct and for expulsion to be the punishment, although it does not require unanimity for other sanctions. 

Many other schools require only a majority or supermajority of a hearing panel to find an accused student responsible of sexual misconduct. 

The ideal

In its preamble, the report states that its goals for the sexual misconduct disciplinary processes are “aspirational” and that it is not a complete discussion of all relevant issues. 

Larry Moneta, vice president for student affairs, wrote in an email that he had not yet reviewed the report and its recommendations for universities. 

Gokhberg said she is looking forward to having firm regulations in place instead of the non-binding Dear Colleague letter, specifically how the new regulations protect confidentiality and if they employ sex versus gender-based language. She added that the regulations should protect graduate and professional students since they work within intimate relationships with faculty and other graduate students.

“The general theme here is we are looking for what a lot of transparency would look like across campuses,” Gokhberg said. 

She urged DeVos to carefully consider impacts of the new policy for "groups most affected by harassment, discrimination and assault on campuses" and graduate and professional students who experience campus differently than undergraduates. 

“I would ask her to take a real look at who the stakeholders are and who Title IX and the Dear Colleague letters are supposed to work for,” Gokhberg said.