On April 4, the Education Department's Office for Civil Rights (OCR) sent the nation’s school officials a letter urging them to water down due process and other protections for students and staff accused of sexual harassment. It encouraged colleges and schools to cut back on procedures that help debunk unfounded allegations, such as cross-examination, and sought to place limits on students' ability to appeal their convictions. The Education Department's letter, timed to coincide with a PR campaign by Joe Biden, was also criticized by civil libertarians, like former ACLU board member Wendy Kaminer and the Foundation for Individual Rights in Education, for defining sexual harassment so broadly as to include constitutionally protected speech.
As Wendy Kaminer noted, the Education Department is attempting to deprive accused students of the right to cross-examine their accusers: “students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant ‘may be traumatic or intimidating.’” As OCR puts it, “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” This is perverse, since "a famous legal authority once described cross-examination as the most powerful engine for the discovery of truth ever devised by man."
(While there is no independent constitutional right to cross-examine in campus disciplinary proceedings, the right is sometimes protected by state education codes, collective bargaining agreements, or other contracts or regulations. Moreover, in a few campus disciplinary cases, such as Donohue v. Baker (1997), judges have ruled that cross-examination was constitutionally required on due-process grounds to test the credibility of the accuser.)
In another move, the Education Department now forbids colleges to allow students found guilty to appeal their punishment or finding of guilt, unless the college also allows complainants to appeal findings of innocence, and to challenge supposedly inadequate punishments: “If the school provides for an appeal of the findings or remedy, it must do so for both parties.” That conflicts with the practices of many campus disciplinary systems. (There is nothing nefarious about allowing only the accused to appeal. American courts generally only permit defendants -- not the prosecution or the complainant -- to appeal the verdict in a criminal case.)
Most importantly, as I have discussed earlier, the Education Department is attempting to override the strong presumption of innocence recognized by many college disciplinary systems, such as Harvard Law School, Ohio State, and the University of Virginia. Those systems require clear-and-convincing evidence of guilt for punishment. The Education Department now says that that is illegal under federal law, and that schools must discipline students based on a meager 50.001 percent chance of guilt (a mere “preponderance of the evidence”).
I earlier explained in more detail why the Education Department is dead wrong: its position is in conflict with court rulings that say that civil-rights laws like Title IX do not give complainants a right to second-guess reasonable disciplinary decisions by institutions, even if the institution applies a clear presumption of innocence. Institutions are not liable for harassment by students and non-supervisory employees just because it occurs: they are liable only for their own culpable failure to respond to such harassment in a reasonable fashion (as the Education Department itself admitted in 1997), and it is simply not culpable to give people a presumption of innocence, even if accused people avoid formal discipline in close cases as a result of that presumption (as federal appeals courts have noted in cases like Adler v. Wal-Mart).
(Moreover, in lawsuits against schools for damages, Title IX plaintiffs must show “deliberate indifference” by school officials towards harassment under the Supreme Court’s Gebser and Davis decisions, not just the occurrence of harassment, and courts have noted that deliberate indifference is not shown by a failure to find guilt, even if the failure later turns out to be “in error” and “tragically flawed.” See Doe v. Dallas Independent School District (2000).)
The Education Department’s attempt to override rules and regulations long used by school officials in disciplinary cases creates the specter that those officials will end up being sued under state administrative-procedure laws and education codes if they comply with its dictates. That violates the admonition of the Supreme Court in Davis v. Monroe County Board of Education (1999), where the Justices said that a school did not need to take “disciplinary action that would expose it to constitutional or statutory claims” in order to comply with Title IX.
Disclosure: I used to be an Education Department lawyer.