A Direct Contradiction

Three years ago, Kevin Kruger, head of the country’s association for student affairs professionals, wrote to The Washington Post over his concerns with new state laws around campus sexual assaults.

At the time, states such as California and New York were responding to the same pressures that led to the Obama administration’s efforts to crack down on sexual violence at colleges and universities. The states passed legislation that both cemented the rules from Obama’s Education Department into state law and went further, adding new definitions of consent and more. Many of the laws applied to both public and private institutions.

This “patchwork” approach to complex sexual assault adjudication, Kruger, president of NASPA: Student Affairs Administrators in Higher Education, then wrote in the Post, could create bureaucratic nightmares for institutions.

Kruger’s warning appears to have proven prescient, though likely in ways he didn’t imagine.

Last month, Education Secretary Betsy DeVos released draft regulations around the federal gender antidiscrimination law, Title IX of the Education Amendments of 1972, in a drastic shift from the approach that Obama championed.

States with their own sex assault laws on the books now have to figure out whether they conflict with the proposed federal regulations, which, once approved, would carry the force of law. In part, because the regulations were just published to the Federal Register for the required 60-day comment collection period, institutions in such states are in a holding pattern while the state systems vet the regulations. They’ve been instructed to do nothing, change nothing.

But the laws will almost certainly clash with the Education Department’s proposal if it remains as is.

For instance, the regulations indicate that administrators should no longer investigate episodes of sexual violence that happen off campus grounds, or if the misconduct doesn’t fall within the scope of an “education program or activity.” Under the Obama rules, which came in the form of a Dear Colleague letter, colleges still needed to investigate incidents that happened off their property. Recently, a Harvard University student sued the institution for investigating a rape he allegedly committed in a city outside Cambridge -- a case that all but assuredly would not meet the proposed federal guidelines.

New York’s Enough Is Enough law, backed by Governor Andrew Cuomo, specifies that a university can still investigate a Title IX complaint even if a victim decides to back out of the process.

The federal regulations, however, state that information from the parties can’t be used at all unless they submit to cross-examination during a hearing.

It’s these sometimes subtle inconsistencies that have not been studied at length. But Brett Sokolow, president of the Association of Title IX Administrators, said he believes in addition to Illinois, California and New York, laws in Connecticut, New Jersey, North Carolina, North Dakota and Virginia may have conflicting provisions.

“Nobody is making moves yet, but all are moving to study the issues and formulate recommendations,” Sokolow said.

Liz Hill, Education Department spokeswoman, said that department acknowledges certain state laws might dictate institutions do more than what Title IX requires, “but that does not inherently create a conflict between state and federal law.”

Hill did not address the specific examples that were provided to her by email of possible contradictions between state law and the regulations.

“The department is focused on enforcing Title IX to ensure equal access to education free from sex discrimination,” Hill said.

State Laws Explained

Of the state laws, Enough Is Enough attracted headlines partially because of Cuomo’s promotion of it (and several celebrity endorsements -- Lady Gaga publicly supported the law) but also because New York was one of the first states, along with California, to make the controversial affirmative “yes means yes” the standard for consent.

The administration’s regulations, despite being against the “spirit” of the New York law, as several lawyers described it, don’t actually interfere with the consent piece of Enough Is Enough. Joseph Storch, associate counsel with the State University of New York, said the new regulations do not define consent, though the department did narrow the definition of sexual harassment. The new federal definition of harassment is “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity” from simply “unwelcome conduct of a sexual nature.”

Storch said since the department had never defined consent under Obama, states such as California and New York did. So while DeVos's proposal does not cover many of the cases that the states' laws do, the regulations do not interfere with the state approach.

The proposed regulations also force colleges and universities to turn over all available evidence to both parties if it’s submitted to institutions during an investigation. But the New York law had given institutions a bit more latitude. If someone provided an email, for instance, that wasn’t necessarily relevant to the case, then officials could exclude it from the case file, said Andrea Stagg, deputy general counsel for Barnard College in New York.

Stagg said the provision in the regulations could deter parties from handing over information that they wouldn’t want the other side to see in a case. It would also create much more work for the colleges, which would likely be forced to redact many more documents than they had previously, as required by federal privacy laws.

New York State and City both also have sexual harassment laws regarding workplaces that could complicate Title IX proceedings. The definitions of harassment in these laws exceed the new federal definition. Stagg pointed out that this could create confusion if, for example, a student was employed by the university and was harassed. And under the regulations, only certain officials must report instances of sexual harassment -- but many more are obligated to do so under the New York employment laws.

“It’s problematic,” Stagg said.

California’s definition of sexual assault, as included in the Donahoe Higher Education Act, is also much broader than the federal definition. It is as follows:

“Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:

(a) Submission to the conduct is explicitly or implicitly made a term or a condition of an individual’s employment, academic status, or progress.

(b) Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.

(c) The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.

(d) Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

The University of California System was perhaps the most vocal in criticizing DeVos’s plan right away, issuing a statement last month denouncing several of the projected changes, including that institutions must now hold live hearings to adjudicate sexual violence cases and the adjustment to the sexual harassment definition. California's governor, Democrat Jerry Brown, in 2017 vetoed a bill that would have put the Obama-era rules into state law. At the time, Brown said that state and federal actions may have unintentionally led to due process being violated, and that he would instead convene a "group of knowledgeable persons" that would help develop a sexual harassment policy for the state.

Suzanne Taylor, the interim systemwide Title IX coordinator, said in an interview that UC is preparing to provide comment to the department and that it is studying how the regulations may diverge from the state’s laws.

A University of Illinois System workgroup is also evaluating the same issues, according to spokesman Thomas Hardy. The system, in a statement earlier this month, said officials will “carefully review” the proposal and promised “safe and welcoming” institutions for students and staff members.

Multiple state officials said in interviews they were also confused by a part of the regulations that allowed for institutions to punish students for sexually related misconduct that the department might not deem sexual harassment under the new definition.

The regulations mandate that colleges and universities completely dismiss Title IX claims that do not rise to the level of sexual harassment. But institutions could pursue separate proceedings, though their codes of conduct, though these look entirely different from a Title IX process -- they’re often much more informal.

“If the whole point of this is due process for respondents [students who are accused of misconduct], proceeding with other conduct code processes rather than Title IX doesn’t seem consistent with that objective,” Taylor said.

University Response and More

As one lawyer who specializes in Title IX phrased it: colleges and universities are “in panic mode.”

Many small institutions -- with generally small budgets -- have historically never needed to hold hearings to manage the few Title IX complaints they receive. But now they will potentially need to find officials willing and versed enough to be on a panel, a costly and time-consuming endeavor.

Students will also be represented by an adviser in such hearings, which critics of DeVos have likened to imposing courtroom trials into a college setting.

“Due process is historically a flexible construct,” Storch said. “The Supreme Court has told us to balance the gains in truth-seeking that more process would bring to a determination against the costs and inefficiencies that additional due process would bring.”

“The proposed regulations do not contain any analysis of the due process balance and simply seem to add additional processes, which, in total, are well beyond what any court decision or statute has ever required, without any consideration of cost, inefficiencies and the additional challenges of addressing violence through the formal process.”

Some colleges and universities, again, particularly the small ones, rely on a “single-investigator” model that the new regulations forbid, in which one official handles the entire Title IX inquiry and, in many cases, makes a recommendation whether an assault occurred.

Natasha Baker, a San Francisco-based lawyer and partner at Hirschfeld Kraemer LLP, who advises colleges in Title IX matters, said she would tell her clients (she hasn’t received many direct questions yet) to wait until the regulations are officially approved.

While some of the proposals make her nervous -- Baker pointed to the possibility of needing to chase conduct code violations and not Title IX -- she said that the department will need to respond to the comments submitted to the Register, which could take a while.

One group, Safety Advisors for Educational Campuses LLC, which counsels colleges on Title IX, has already requested that DeVos extend the comment period from 60 to 120 days in light of the busy schedules most institutions have around winter finals and the end of the semester.

“The department is going to have to sort it out,” Baker said of possible conflicts. “Even if you don’t have a state law definition, this concept of a separate conduct code proceeding is going to cause a lot of confusion.”

Some commentators and Title IX practitioners predict that congressional Democrats, who recently got more leverage by winning majority control of the U.S. House of Representatives, will try to pressure the Education Department to back down on some of its proposals, said Sokolow of the Association of Title IX Administrators.

On Nov. 29, more than 75 House Democrats urged DeVos to withdraw the regulations.

“This rule is a blatant attempt to silence survivors of sexual harassment and violence and force them back into the shadows. A year after the Me Too movement went viral, we will not tolerate a system that shames and blames victims,” the representatives wrote in a letter to DeVos.

The department will almost inevitably be sued once the regulations are final, said Peter F. Lake, a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University.

If that happened and the actual implementation of the regulations was delayed, it could push the timeline into the next general election into 2020, Lake said -- he and others think there’s a possibility the new rules never take effect.

“No one has ever attempted to force a federally mandated court system on colleges,” Lake said. “It’s absolutely unprecedented.”