Explainer Episode 24 – The Future of Title IX Implementation

Edward E. Bartlett and Linda Chavez join the podcast to discuss the future of Title IX implementation under the Biden administration, which could have significant ramifications on college campuses across the country.

Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

Jack Derwin:  Welcome to the Regulatory Transparency Project’s Explainer Podcast, part of RTP’s Fourth Branch podcast series. My name is Jack Derwin and I’m Assistant Director of RTP.  

 

Today, I’m pleased to be joined by Linda Chavez and Edward Bartlett to discuss the future of Title IX regulations under the new presidential administration. Linda Chavez is the Chairman for the Center of Equal Opportunity and a Senior Fellow at the Niskanen Center in Washington, D.C. She writes a weekly syndicated column that appears in newspapers across the country and is the author of several books.

 

Edward Bartlett is President of SAVE, an organization focused on due process on college campuses. Formerly, Ed was a faculty member at three universities, and a Federal Regulator at the Department of Health and Human Services.

 

Thank you both so much for joining us today. With that, I’ll turn it over to you, Linda.

 

Linda Chavez:  Thank you very much, Jack. It’s a pleasure to be with you, and also with you, Ed. So we’re going to talk today about Title IX. And just because I never assume that the audience is familiar, or certainly as familiar as our guest is with an issue, I thought it might be helpful just to give a little brief description of Title IX.

 

Title IX of the 1972 Education Amendments was passed originally to ensure that universities that receive federal aid did not discriminate on the basis of sex. And I think when we think of Title IX, we think of it most often in the context of programs that were opening up for girls to compete athletically. 

 

But it has gone much beyond that. And during the Obama administration, in particular, there was a wave of cases that were brought under Title IX having to do with sexual harassment and sexual assault. So I thought it might be helpful, Ed, first of all, if you could just give us a little brief background and what it was that the Obama administration did on Title IX that really began this new era of Title IX being almost overwhelmingly associated with the sexual assault and sexual harassment issue on campuses.

 

Edward Bartlett:  Yeah, certainly, Linda. I think it’s helpful to put this in the broader social context of what was going on a decade ago. And if we actually go back, actually remember the Duke lacrosse case that was 2006. And I think there’s this concept of a moral panic. 

 

Moral panic is when large groups of people start to act irrationally. And I think we can trace the moral panic of campus sexual assault, probably, it got its roots in the Duke lacrosse case. And then, but it really started in 2011. That’s when the infamous Dear Colleague letter was issued under the Obama administration. It’s a very interesting footnote in history that that policy was issued on April 4th, 2011, which was the same date that President Obama announced his reelection plans.

 

Linda Chavez:  That is an interesting coincidence. And again, for those that don’t know or may not be familiar with the infamous case at Duke University, the lacrosse team was accused of raping a woman in a fraternity house, as I recall. And the university, several faculty members, I think there were 88 of them in all who signed on to a public letter basically just assuming that these young men were guilty as charged. 

 

The case ultimately fell apart. The district attorney who brought the case against the lacrosse players ultimately was disbarred for his bad conduct. And it turned out that the investigation into these allegations was extremely shottily done, ignoring very simple evidence, including one bit of evidence of one of the lacrosse players having been photographed at an ATM machine at the time this supposed rape took place, and it was across town.

 

So that did — I think you’re right, Ed. I think that did really set off this series of cases where men, young men, were accused of rape. And then, as you suggested, the Obama administration set out guidance about how universities ought to handle these cases when they came onto their campuses.

 

And maybe you can just briefly say what was in that letter. What was different? What made this such a problem from the Obama administration?

 

Edward Bartlett:  Yeah. So the Dear Colleague letter mandated a series of changes in the campus adjudication. So first of all, it said that campuses could no longer send these campus sexual assault cases to local police. They had to be handled by the disciplinary committee. Keep in mind, these are the committees that handle plagiarism or unpaid parking tickets.  Well now they were being reconfigured as dealing with allegations of sexual assault. 

 

Some of the other parts of this Dear Colleague letter were to — that the committees had to use what’s called a preponderance of evidence standard, which says basically, if you’re 51 percent sure, then you’ve met the preponderance of evidence level. Whereas sexual assault in the criminal justice system is dealt with on a clear and convincing standard, which is like 60 to 70 percent sure.

 

There were other changes. For example, the accused student could not be represented by an attorney. That students could not resolve their complaint through informal mediation or arbitration. So it really had a huge effect on the whole notion of due process in the campus setting.

 

Linda Chavez:  And we’re not talking, here, about clear-cut cases where a young women is attacked, physically assaulted, raped. But also cases in which a woman charges that she had sex with an individual and may even, after the fact, have decided that she did not give consent for this. So it really — it was a kind of very slippery slope in how it is they defined these crimes. Is that correct?

 

Edward Bartlett:  Yeah, very much so. And you mentioned the consent issue. And I think it’s fair to say that the consent issue is the central feature in so many of these lawsuits that have been filed by the accused students.

 

I’ll give you an example, just a decision that was handed down just a few weeks ago, State University of New York at Purchase. So here was sort of a perfect example, the female student was fully assertive. She requested to visit the guy’s room. She took the initiative to request to spend the night with him. She took the initiative to request that he obtain a condom. So she was clearly the initiator in the whole process. 

 

But then, kind of magically, she later claimed that she suffered from PTSD. And, of course, she didn’t provide any medical evidence of the PTSD. But she claimed that PTSD created sort of what’s called a fear or frozen response. So she was unable to express her decision or lack of desire to continue. So that was just a perfect example of the consent issues that come along.

 

Linda Chavez:  And we’re not talking, again, about a few cases, are we? I mean, there have been literally hundreds of these cases over the last decade where charges are brought. And what happens to those who are accused? What’s the process under the Obama guidelines? What was the process if you were accused of this kind of action? What recourse did you have to be able to defend yourself?

 

Edward Bartlett:  Well as I mentioned earlier, you could not have an attorney representing you. It’s the case of the classic potted plant. The attorney might be able to be in the room with you but couldn’t specifically ask questions of the complainant. 

 

So these cases were heard by disciplinary committees. Typically the committee did not include a single attorney in their membership. They might be — like one university I know of, the head librarian of the school’s library was one of the members of the committee. 

 

So there’s a hearing. Both sides present their evidence. And then the committee makes a decision. There is the opportunity for appeal. But in so many of the cases, it truly is a kangaroo court. And a decade ago, nobody knew what a kangaroo court really meant. But here we are in 2021, almost everybody knows what a kangaroo court means.

 

Linda Chavez:  And Ed, what was the punishment that was meted out? What was the range of things the university could do to someone accused of sexual harassment or sexual assault?

 

Edward Bartlett:  Well, Linda, the most important sanction was putting a notation on the transcript, university transcript, saying that this student was accused and was found responsible of some form of sexual misconduct. In some cases, the student was expelled, some cases, suspended, and some cases required to take some extra training. But the notation on the academic record was the most important. Because it meant that was basically the black mark on the student’s forehead for the rest of his life.

 

Linda Chavez:  So if he applied to graduate school, or law school, or medical school, or applied for a job and transcripts were ordered, that information would have been in the file.

 

Edward Bartlett:  That’s correct. And many graduate schools simply deny admission to a student with that notation. I mean, they will accept a person who was convicted for murder. That person is fine. But a student who was found responsible for sexual assault often cannot get into graduate school.

 

Linda Chavez:  And could the student also be removed? Could they basically be kicked out of school as a result?

 

Edward Bartlett:  Very much so. Nobody knows the exact percentages. But a good number of these students were expelled. And these were truly traumatic experiences because, you know, these students mostly came from a middle class, upper middle class background. And they were engaged in some sexual experimentation in college. And all of a sudden, they find themselves a pariah on campus.

 

Linda Chavez:  Well let’s fast forward and get to the Trump era. Betsy DeVos, who was Secretary of Education undertook a review of these guidelines and policies. It actually went on for quite a while. But in 2020, there were regulations, finalized regulations that were issued that attempted to change the guidance that had been given to universities. Can you explain some of the primary changes that the DeVos era regulations on Title IX changed?

 

Edward Bartlett:  Yeah. The changes were multiple and impressive. A clear statement of the presumption of innocence. A requirement for impartial investigations. The need to do what’s called a credibility assessment of both parties. Recording the hearings. Allowing the attorney to be more involved. Allowing informal resolutions of these complaints, and more.

 

So it really was a sea change for how the campus committees handled these. And I spoke earlier of the moral panic that began around 2011. I put 2017 as when this moral panic ended. Because that’s when Betsy DeVos announced that this infamous Dear Colleague letter was being removed.

 

Linda Chavez:  So the first thing that Secretary DeVos did was to pull back on the guidance that had been sent by the Obama administration. But rulemaking in the federal government is a long, involved process. It requires putting out proposed regulations. There are periods of comment where the public can get involved. And I would assume that many of the activists who were very much in favor of the Obama administration did, in fact, marshal resources and commented during that period. Am I right?

 

Edward Bartlett:  Absolutely. It was a very contentious time. I believe over 100,000 comments were filed with the Department of Education about its proposed new regulation. And so, yes, it was very contentious. And of course, in the background of all of this, were these continued lawsuits that were being filed. And in the majority of cases, the accused student was winning these lawsuits.

 

Linda Chavez:  Yeah, these were lawsuits filed by someone who’d been accused of sexual impropriety, having received punishment from the university and then took that case into civil court, I’m assuming. And so you’re saying that a majority of these cases were actually being won by the plaintiffs.

 

Edward Bartlett:  Exactly. And some of the cases did go to an appellate level of court. And to date, we’ve identified there have been 23 such appellate court decisions. And an appellate court decision is so important because it’s not just resolving the dispute in that specific case. It also is creating new law that applies to all colleges within the geographical jurisdiction of that court.

 

Linda Chavez:  Right. So let me play devil’s advocate a moment. So if you are on the side of the various advocacy groups that approved of the Obama guidance and very much disapproved of the Trump era regulations, the argument might be, well you know, it’s all well and good to suggest that people need some sort of due process and their rights need to be protected when they’ve been accused of some misbehavior. 

 

But what about the victim? What about the trauma that may occur when a victim is forced to face her accuser, and when she might be subject to questioning about what took place? What’s your answer to that?

 

Edward Bartlett:  Well that’s a great question, Linda because — and the question reminds me of the Wizard of Oz, when the velvet curtain was pulled back and the truths of what was going on was revealed.

 

In this case, there is absolute demonstrable evidence showing that the Dear Colleague letter failed to deliver as promised, even in terms of helping complainants of sexual assault. And if I can give you a couple examples, or actually statistics.

 

So for example, two years ago, 2019, a group called the American Association of Universities, and they do the very best surveys on this issue, so the methodology is very sound. And they found that, first of all, only 11 percent of females who were reported to be sexual assault victims had even reported the assault to their campus disciplinary committee. 11 percent. 

 

Now keep in mind that the issue of reporting was the driving issue, the driving justification for the Dear Colleague letter, so eight years after the Dear Colleague letter was issued, only 11 percent of these cases were reported. So then the survey went on to ask these persons, well why didn’t you report it? Well only 45 percent of these victims reported that school officials were very likely, or extremely likely, to take their report seriously. 

 

So if that’s not a verdict how these campus committees fail to deliver, even to complainants with legitimate complaints, that’s kind of the — that’s pretty solid evidence that it was a failure.

 

Linda Chavez:  You know, we’ve talked mostly about the sexual assault aspects. But of course this goes beyond sexual assault and deals with the whole subject of sexual harassment. One of the things that critics are charging is that the new Trump regulations have narrowed the definition of sexual harassment to conduct that is so severe, pervasive, and objectively offensive that it deprives a person of access to education.

 

Is there any legitimacy in that? What about the sexual harassment aspects? Is there broad-scale harassment going on on campuses that Title IX and the process in place for universities is somehow not addressing?

 

Edward Bartlett:  So Linda, it all comes down to what is your definition of sexual harassment? And the reality is that many of these colleges had definitions that defies belief.

 

For example, Goucher College in Baltimore, part of their definition of sexual harassment was unwanted flirting. Okay. So if you ask somebody out on a date, I guess more than once or twice, that was sexual harassment. 

 

Even more concerning were these definitions that began to intrude on free speech. And faculty members experienced this problem in particular. But they couldn’t even give their normal lecture without somebody saying, Professor, I’m feeling triggered by that comment. So please don’t talk about that issue.

 

And there was a famous case involving a faculty member named Laura Kipnis at Northwestern University. She had just written an editorial saying that the campus sexual harassment policies were unfair. It was just a written editorial. But two students at the college filed a formal complaint against her saying that her article would actually discourage future complaints. So we’ve seen so many examples like that.

 

Linda Chavez:  So the whole area of harassment, whether you’re talking about sexual harassment, racial harassment, other forms of harassment, has been problematic in recent years. I have taught at universities going back many years. And I taught literature. And I wonder to myself how a professor does basically survive teaching great works of literature, which may be filled with sexist, racist language. 

 

I look at someone like William Faulkner, one of the great writers of the 20th century, and wonder how you could teach Faulkner in today’s environment. How you could teach someone like Ernest Hemmingway today on the question of sexual harassment? Whether or not this doesn’t stifle. And I think that’s sort of what you’re talking about. 

 

So I think it’s important to understand that we’re not just talking about cases where someone is accusing another student of assaulting them, physically. But we’re also talking about words, or as you suggested on some campuses, the very act of flirting. I know it’s been a long time since I’ve been in college but trying to control flirting seems to me a utopian adventure at best. Or maybe dystopian would be a better description.

 

Let me ask you one more thing about the new attack on the Trump era regulations. Again, one of the things that those who are opposed to the regulation say is that their goal is to ensure fairness. They want universities to operate in a fair fashion, whereas the DeVos regulations emphasize due process. What do you think about the difference between the two and why the Trump regulations may have favored due process over a concept like fairness?

 

Edward Bartlett:  So Linda, in my mind, fairness and due process are basically synonymous terms. Due process, of course, refers to the specific procedures and protections that are followed in order to make a determination of innocence or guilt.

 

It’s sort of like the scientific method. You need to follow steps A, B, C, D, and E in order to get to a reliable result. So that’s what due process means. It’s nothing arcane or esoteric. It means basic concepts and principles of fairness that allow the determination of guilt or innocence to be correct.

 

Linda Chavez:  Well I guess I would argue that I think what the advocates who tried to elevate the concept of fairness to the fore would argue is that it’s not fair if it doesn’t end up favoring women and favoring students who feel that they have been in some way harassed on campus. So the concept of fairness, I think, predetermines an outcome. 

 

Whereas due process, as you suggest, is all about the rules you follow. How is it you come to determine the truth. Whereas emphasizing fairness, I think, tries to emphasize that there is a certain outcome that we expect and it’s only fair if that outcome is achieved.

 

Edward Bartlett:  Well there’s a really interesting wrinkle in that particular issue that according to the Centers for Disease Control, they do a survey. It’s called the NIPVS, which stands for National Intimate Partner and Violence Survey, but try not to pronounce those words too quickly.

 

But the NISVS has actually found that sexual victimization of men is almost at identical levels as the sexual victimization of women. And they say that because they have found that they need to tweak the wording for male respondents to ask, have you been made to penetrate. So when the NISVS uses that term, that wording, it does find that male victimization are at essentially identical rates as female. 

 

But on college campuses, we find that when males who say they have been sexually assaulted or made to penetrate, they very often received a cold treatment from the campus disciplinary committee. So it is a complex issue.

 

Linda Chavez:  That is very interesting. And you know, there’s a lot of sexual stereotypes that may come into play, as well. And so that is extremely interesting data.

 

Before I let you go, I want to try to bring us up to date. And we now have — the Biden administration has announced that it’s going to have public hearings. That they are going to reevaluate these regulations and presumably, in order to do that, they want to hear from the public.

 

Do we know anything more about how that’s going to take place? Whom they’re going to be hearing from? And how those who are interested can register their views?

 

Edward Bartlett:  Yeah, Linda. Well so I’m going to draw on my prior federal experience as a regulator. My read of the political tea leaves is that these hearings will be held fairly soon, perhaps as early as June. Anybody will be invited to speak or testify at these hearings. Typically, they allow three minutes per person. But you can also provide any written materials to supplement your testimony. 

 

So the OCR will be advertising — the Office for Civil Rights will be advertising this. I’ll give the address, the URL of our website, because we’ll be publicizing it on our website. SAVE’s URL is www.saveservices.org. So we will have a notice there.

 

And I’ll just put in a plug, we have lots and lots of other resources. For example, on this recent report on the appellate court findings.

 

Linda Chavez:  Well thank you very much, Ed. I hope our listeners have learned more about Title IX regulations, some of the issues involved, and what we can see going forward. My guess is this issue is going to heat up. It’s going to be very much the focus of attention by the media. And so thank you so much for helping guide us through where we’ve been and where we’re likely to go on Title IX regulations. Thank you Ed Bartlett.

 

Jack Derwin:  Well a huge thank you to you both, Linda and Ed. It was a great discussion. And do our audience, if you’d like to check out more of their interesting work, please feel free to do so at regproject.org and you can also find us on all of the major social media platforms. Thank you very much.

 

[Music]

 

Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

[Music]

 

This has been a FedSoc audio production.

Edward E. Bartlett

President

SAVE


Linda Chavez

Chairman

Center for Equal Opportunity


Race & Sex

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at rtp@regproject.org.

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