Eighteen State Attorneys General Oppose Due Process Protections in Title IX Proceedings That They Must Observe in Every Other Civil or Criminal Proceeding

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The Attorneys General of 18 states collectively submitted an extensive 72-page comment opposing rules proposed by the Department of Education for Title IX, the federal statute prohibiting discrimination on the basis of sex in education. 

Led by the Commonwealth of Pennsylvania (Josh Shapiro), California (Xavier Becerra), and New Jersey (Gurbir S. Grewal), these chief legal officers of their respective states have gone on record attacking some of the most fundamental due process protections that are otherwise the norm in the civil and criminal justice system.

The practical effect of the position they advocate would be to create a unique space—college campuses—and a unique class of alleged victims and accused—students in higher education—to whom tried and true procedures for deciding guilt in cases of serious allegations do not apply. 

The Attorneys General would do away with the presumption of innocence, as Connor Friedersdorf of the Atlantic has pointed out.  This maxim is written into the United Nations’ Universal Declaration of Human Rights (Article 11). The Attorneys General consider it expendable for Title IX. 

It is not uncommon for activists to take such positions. It is very unusual to hear it coming from the chief legal officers of states that account for almost 40% of the United States’ population. 

At least for university Title IX actions, these Attorneys General would dispense with several other fundamental principles that apply everywhere else in the U.S. justice system. 

They argue that schools should not have to provide evidence to accused students that the school deems “irrelevant.” 

They oppose cross-examination because it might prove too expensive to implement and on the grounds that it may “harass[] the respondent, retraumatiz[e] the complainant, and further deter[] survivors from filing formal complaints.” 

No doubt, few ever find cross-examination pleasant. Yet our civil and administrative justice system provides for cross-examination in every other analogous context, including K-12 education. 

For example, no similar movement is gathering steam to cancel due process rights in state expulsion law. Statutes have long protected K-12 students who face expulsion, and they generally include at least some form of cross-examination right, the right to notice, the right to evidence, and the right to an Title IX attorney. This is not controversial.[1] Minimum due-process rights, including recognition of a substantive property interest in education and a substantive liberty interest in reputation in school misconduct proceedings, have been recognized at least since Goss v. Lopez, 419 U.S. 565 (1975).

The National School Boards Association also submitted a comment to the proposed Title IX rules. School boards argue for flexibility to adapt cross examinations to the K-12 setting. For example, parties may not be able to cross-examine minor children directly, depending on the case, but can almost always cross-examine the school’s investigator or other parties offering evidence. The NSBA does not categorically condemn cross-examination in school discipline cases. One reason may be that cross examination in K-12 expulsions is already required by statutes, including the laws of Pennsylvania, California, and New Jersey whose Attorneys General now oppose cross examination in the Title IX context.[2] 

Title IX is also universally compared to Title VI and Title VII of the Civil Rights Act in which due process rights are not generally controversial. These laws prevent discrimination by employers (VII) and by recipients of federal funding (VI).

For example, the Attorneys General take the reasonable position that the preponderance of evidence standard holds for these civil rights laws, so why not Title IX? Under “preponderance,” it is enough that proof of guilt is only 50.001% convincing or “more likely than not;” whereas the new proposed regulations would allow schools to apply a higher, “clear and convincing” standard of proof.

But the Attorneys General go further to argue that the Department of Education “has no authority to depart from the usual allocation of risk between parties to grievance proceedings” in other civil rights disputes. They are silent as to why this same logic does not justify keeping the presumption of innocence, cross-examination, or other due process rights that apply in other civil rights proceedings.

It is a fair argument that Title IX standards should not be more lax than standards used to enforce Title VI and VII. Yet when other civil rights are in jeopardy, institutions like the United States Equal Employment Opportunity Commission do not jettison cross-examination or other fundamental protections. 

Many young women or men enter the workforce directly after high school. Title VII (making discrimination by employers illegal) does not view them to be too harassed or traumatized to withstand cross-examination; but the Attorneys General and other advocates would bestow such status on college students of the same age.

The Attorneys General lend their considerable authority to social movements advocating a rollback of due process rights in Title IX. On close inspection, the practical effect would be to roll back protections almost exclusively for college and university students in higher education.

Federal courts are increasingly rejecting these rollbacks as students seek the help of attorneys and challenge universities and colleges in court. 

[1] See for example, Connecticut law on expulsion hearings, which guarantees the right to cross-examination and places the burden of proof on the school to prove guilt, that is, presumes the student innocent until proven guilty.  https://portal.ct.gov/-/media/SDE/Digest/2018-19/Expulsions-Guidance-August-2018.pdf

[2] For Pennsylvania, 22 PA Code 12.8, https://safesupportivelearning.ed.gov/sites/default/files/discipline-compendium/Pennsylvania%20School%20Discipline%20Laws%20and%20Regulations.pdf;
for California, Cal. EDC 49818, https://safesupportivelearning.ed.gov/sites/default/files/discipline-compendium/California%20School%20Discipline%20Laws%20and%20Regulations.pdf;
for New Jersey, NJAC 6A:16-7.3 https://safesupportivelearning.ed.gov/sites/default/files/discipline-compendium/New%20Jersey%20School%20Discipline%20Laws%20and%20Regulations.pdf.