Al Drago / The New York Times

Betsy DeVos, the education secretary.

September 24, 2017

How Could the Education Department’s New Title IX Guidance Affect Cornell?

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Education Secretary Betsy DeVos rescinded Obama-era Title IX guidance on Friday, giving new recommendations that, if adopted by Cornell, would substantially change how the University investigates and adjudicates cases of sexual assault and misconduct.

DeVos’s Education Department issued new interim guidance to schools, like Cornell, that receive federal funds. That new guidance allows schools to use a stricter standard in adjudicating sexual misconduct complaints, lets them give parties the option of voluntarily entering informal resolutions like mediation, and permits schools to give just the accused party the ability to appeal a case outcome, as in criminal law. All of these new guidelines, if adopted by Cornell, would change existing University policy.

The new guidance, in one footnote, calls on colleges to use the same standard of evidence in Title IX cases that they use for all other cases, such as those handled by the Office of the Judicial Administrator at Cornell. Cornell’s Title IX Office, based on its sexual misconduct policy, finds students guilty if it believes the student “more likely than not” is responsible, but the Office of the Judicial Administrator requires “clear and convincing” evidence that the student is responsible — a higher burden of proof.

It is not yet clear whether or not Cornell’s Title IX Office will elevate the burden of proof it requires to find someone guilty to the “clear and convincing” standard used by the OJA, or vice-versa. The new guidelines recommend that Cornell use one standard, but do not require any changes to the University’s burden of proof procedures.

Cornell is “reviewing the new interim guidance released [Friday] by the U.S. Department of Education’s Office for Civil Rights and the impact these changes may have on our current policy and procedures,” John Carberry, a University spokesperson, said.

Critics said the previous guidelines, issued by former President Barack Obama in April 2011 in what is known as a “Dear Colleague” letter, weakened due process protections for students accused of sexual offenses, while supporters of that guidance said it created an environment in which a victim was more likely to come forward.

DeVos’s new guidance will remain in place until the Education Department enacts formal regulations, which it plans to do. Neither this guidance nor the Obama-era guidance is legally binding, and the underlying Title IX law still stands. Devos’s department has now rolled back many of the Obama-era rules, giving universities more flexibility in complying with Title IX and recommending specific approaches in some areas.

Schools are now permitted to use the “clear and convincing” evidence standard to adjudicate sexual misconduct complaints. Previously, only the “preponderance of the evidence” standard was allowed in these cases; under that standard, currently in use by Cornell’s Title IX Office, people accused of sexual assault are found guilty if an investigator believes more than 50 percent of the evidence points to their guilt.

In an extreme case, a person could be found guilty of sexual assault under the preponderance standard — currently used by Cornell’s Title IX Office and many other schools — based only on an adjudicator’s belief that the accuser’s testimony is more credible than the accused’s testimony.

Critics say the preponderance standard is inappropriate in cases where students could be suspended or expelled as a result of being found guilty, but defenders of the preponderance standard say it makes survivors of sexual assault more likely to come forward and puts complainants and respondents on equal ground, in keeping with Title IX’s equality mandate.

Deciding which evidentiary standard to use could be consequential for a Cornell Title IX Office that is currently under five separate federal investigations, tied for the most of any school in the country.

The Education Department’s Office for Civil Rights recently closed one investigation. Previous to that closure, on Sept. 7, the office had more investigations into Cornell than any college in the country.

Additionally, two male students have filed lawsuits alleging that the University’s Title IX process is unfair. That office has been on the losing end of multiple lawsuits, and federal investigators came to Cornell in early March to hear student perspectives — which, in at least one session, were mostly negative — on Cornell’s campus climate regarding sexual assault and harassment.

The new guidance also gives universities the option of allowing only the accused student to appeal case outcomes, countering Obama-era guidance that required schools with appeal procedures to give both parties an equal opportunity to appeal. Now, schools will have the option of mirroring American criminal law practices by granting only respondents the right to appeal, but schools are still not required to allow students to appeal at all.

Cornell’s current practice is to allow both parties the right to appeal an outcome.

In almost all cases, these changes — allowing both the clear and convincing standard and respondent-only appeals — would seem to favor students accused of sexual misconduct, but DeVos’s new guidance does not go as far as some on both sides of the debate expected. The guidance does not, for example, provide a right to a hearing or to confrontation, nor does it provide a right to participation by counsel. It does require that if one party is allowed to have a lawyer, the other party must as well.

Critics of the secretary’s move said her guidance is insensitive to the interests of sexual assault survivors.

“The interim guidance will have a devastating impact on students and schools,” said Fatima Goss Graves, president and CEO of the national Women’s Law Center. “It will discourage students from reporting assault, create uncertainty for schools on how to follow the law, and make campuses less safe.”

New York Gov. Andrew Cuomo, a Democrat, called Devos’s new guidance “repulsive.”

The guidance also allows parties to voluntarily enter informal resolutions, including mediation, if the school deems that approach appropriate. Obama-era guidance strongly discouraged that practice, telling schools that “in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis.”

One of Cornell’s former judicial codes counselors — the Cornell Law students who represent accused students — argued that allowing mediation gives complainants an additional avenue for redress of grievances, which may be less adversarial, less time-consuming and less demanding than existing avenues.

Cornell Policy allows for a “resolution by agreement,” which is similar to a settlement, but parties cannot independently agree on their own resolution: only a Title IX coordinator may recommend a resolution, and parties must communicate with each other through the Title IX coordinator.

Cornell, in response to Obama’s 2011 guidance, updated its sexual misconduct policy, adopting a new procedure that, in the view of at least one Cornell Law professor, went beyond the demands of the Education Department at the time.

“The University knew which side it wanted to be on” when it updated Policy 6.4 in the wake of Obama’s guidance, Prof. Kevin Clermont, law, who helped draft the Campus Code of Conduct, told The Sun last month.

“They wanted, statistically, to be able to say, ‘Hey, we’re convicting people right and left,’” Clermont said.

DeVos’s new guidance could prompt the biggest shift in University Title IX practices since the 2011 guidance.