Biden executive order will lead to due process deficits on campus

Is due process in sexual assault proceedings on college campuses under new threat? Unfortunately, a new executive order likely will have that effect. 

Sexual assault is reprehensible. There is no serious question about whether it should be tolerated on campus. The only real question is: What, specifically, is the federal government’s role in preventing sexual assault? While the Department of Education’s Office for Civil Rights (OCR) serves as an important backstop, most of the work of preventing sexual predation must be done by schools themselves, police and prosecutors.

To understand the history of federal regulation of campus sexual assault, it’s necessary to start in the 1970s. The current regulatory regime grew out of Title IX of the Education Amendments of 1972, which prohibits federally-funded programs and activities from discriminating on the basis of sex. The Congress that enacted Title IX was primarily interested in opening up academic and professional opportunities to persons excluded from them because of their sex. They did not give any attention to campus sexual assault.

In the 1990s, the Supreme Court nonetheless interpreted Title IX’s prohibition on sex discrimination to encompass sexual harassment (including sexual assault) in at least some circumstances. As serious as sexual assault is, the connection between sexual harassment and sexual discrimination outlined in these opinions is attenuated: Yale Law School professor Reva Siegel has called it “terribly thin.” It is probably fair to say that the average person does not think sexual assault is wrong because it is a type of sex discrimination, but because sexual coercion is inherently wrong.

On the Clinton administration’s last day in January 2001, OCR issued detailed rules interpreting those decisions. Some outside advocacy groups thought that these rules did not go far enough to deter sexual harassment, and so the Obama administration issued “Dear Colleague letters” and other guidances building on them.

While it is important to hold sexual assault perpetrators accountable, it is also a basic legal principle, traceable back to the Magna Carta, that accused persons deserve a fair opportunity to be heard. Indeed, the more serious the offense, the more important it is that those accused have robust due process rights to protect against mistakes or false charges.

Alas, the Obama administration guidelines often ran afoul of this fundamental due process principle. Notably, they required schools to use the lower “preponderance of the evidence” standard in sexual assault discipline proceedings, rather than the higher “clear and convincing” one, even though Title IX itself is silent on disciplinary standards and the gravity of the offense suggests the higher standard is at least sometimes appropriate. The guidance also discouraged cross-examination, despite its usefulness for testing an accusation’s truth, and presented First Amendment concerns.

The Trump administration acknowledged these problems, among others, and issued a rule to correct them. Although the Trump administration was often criticized for inattention to administrative procedure, this Title IX rule won praise from even liberal-leaning outsiders for its thoroughness and responsiveness to the student, parent and educational institutions’ concerns.

Though the Biden executive order merely asks the Education Department to “evaluate” the Title IX rule, Biden’s campaign promise to withdraw it makes the outcome of that evaluation virtually certain. Because the rule safeguards important free speech and due process principles, rescinding it would be a significant mistake. 

The likely downfall of the Title IX rule illustrates broader problems about the degradation of traditional understandings of separation of powers. Under the original understanding of the Constitution, it was the legislative branch’s duty to write laws, the executive branch’s duty to enforce them, and the judicial branch’s duty to decide cases and controversies arising under law. However, modern executive branch agencies often have usurped traditionally legislative functions and used even informal guidance documents to impose duties on private persons going beyond those enumerated in statutes. Under extra-constitutional doctrines of judicial deference to agency interpretations of the law, judges  defer to these illegitimately issued rules.

In the Title IX context, this erosion of the separation of powers principles has led to what political scientist R. Shep Melnick calls “leapfrogging,” a process by which courts defer to agency interpretations of a statute, the agency incorporates those court decisions it likes into its guidances, and the courts defer back again. In other words, the courts and agencies each take a step beyond each other, expanding regulation without seeming to do so.

The problems caused by excessive judicial deference to executive agencies are not unique to Title IX and OCR. But as Melnick notes, questionable OCR guidances may receive less pushback than others because 1) schools are not-for-profit and don’t face financial losses because of excessive regulation and 2) many people see civil rights in highly moral terms and are reluctant to challenge anything that appears to present progress toward equality.

If there is to be a comprehensive campus sexual harassment regulatory scheme, Congress should decide what that scheme would look like. While the executive branch (in this case, OCR) has a constitutional role in filling in small details, its proper role should be limited to that type of minor gap filling. Setting up a system based on traditional tort principles, as proposed by scholar Ellen Frankel Paul, could make more sense than the current questionable bootstrapping of sexual harassment regulation onto a sex discrimination statute. But whatever the precise approach chosen, this problem is better tackled by the most democratically accountable branch.

Alison Somin is a legal fellow at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ individual liberty and constitutional rights. Follow her on Twitter @AlisonSomin.