Title IX and “trauma-focused” investigations: The good, the bad, and the ugly.

Abstract

Beginning in earnest during the Obama era, campus, state, and federal authorities have struggled to find Title IX rules, regulations, and investigatory procedures that would balance the needs and rights of those who allege sexual harassment or assault against those of the accused. The "dear colleague" letter issued in 2011 (US Department of Education, 2011) reminded campuses of requirements under Title IX and issued guidelines for their enforcement, including those concerning the nature of campus policies, the operation of Title IX offices and officials, and the process of resolution of complaints. Although the letter specified-as does Title IX itself-that "equitable" procedures should be used, it did not require that due process protections be adopted (such as allowing lawyers to participate, access to all evidence), but merely stated that if allowed at all, both parties must be able to use them. It specified that due process must be provided for the accused, but at the same time, these protections must not restrict or unnecessarily delay Title IX protections for the complainant. It also required that the relatively lax "preponderance of the evidence" standard of proof be employed to assess any claim, thereby making it easier to find in favor of the complainant.In September of 2017, Education Secretary Betsy DeVos rescinded Obama era regulations. In November of 2018 DeVos proposed changes designed to eliminate restrictions in the investigations, to bolster the rights of the accused, to encourage more equitable investigations, and to allow the option to choose a higher standard of proof for allegations (such as "clear and convincing" rather than "preponderance of evidence"). Changes included options that either had not been mentioned or not required in Title IX regulations or DOE guidance, or not adopted or permitted in specific campus regulations. These included the Author Note.