What Does Title IX Mean? California Grapples with the Answer

A student demonstrates in front of the Department of Education in 2017. (Lauryn Gutierrez/Rewire)

A student demonstrates in front of the Department of Education in 2017. (Lauryn Gutierrez/Rewire)

On Aug. 31, 2010, St. Mary’s College freshman Lizzy Seeberg was sexually assaulted by a Notre Dame football player. The next day, she gave a signed and dated handwritten statement to Notre Dame police explaining what happened. After 10 days, Seeberg tragically committed suicide. At this point, Notre Dame police had not even interviewed the football player and wouldn’t for another five days. Even after Notre Dame police questioned the football player, prosecuting attorney Michael Dvorak declined to file charges because of conflicting reports and Seeberg’s death, which likely made her statements inadmissible.

If Seeberg’s story seems familiar, this is because America has a toxic culture of sexual violence. The grim reality is 20 to 25 percent of college women will be raped. For those that survive, over 33 percent will contemplate suicide and 13 percent attempt suicide. Victims of sexual violence experience long-term effects well after the attack. In a study conducted by the University of New Hampshire, victims of sexual assault, relationship abuse and stalking had “lower academic efficacy, higher stress, lower institutional commitment, and lower scholastic conscientiousness.” Another study found that 94 percent of women who are raped experience symptoms of post-traumatic stress disorder during the two weeks following the rape, and 30 percent of women report these symptoms nine months after the rape. Rapes carry economic consequences as well—the estimated lifetime cost for a rape victim is $131,499.

The Obama administration combatted sexual violence by changing the way colleges investigate allegations. In 2011, the U.S. Department of Education Office for Civil Rights sent the “Dear Colleagues” letter to the presidents of all colleges and universities in the U.S. The “Dear Colleague” letter reiterated that Title IX of the Education Amendments Act of 1972 requires schools to investigate and adjudicate cases of sexual assault on campus. Furthermore, it required schools to adjudicate these cases using a “preponderance of the evidence” standard of evidence, which in layman terms means more likely true than not.  This means that if there is a 50.1 percent chance that the accused assaulted the victim, the university must find the accused guilty. To a large extent, the Obama administration’s efforts worked—colleges changed their ways. But some, on the basis of a new wave of faulty sexual violence cases, argued that the revisions worked too well.

Critics of the Obama administration’s approach toward adjudicating sexual assault accusations argued that there were possibilities of false accusations, mistaken identity or errors. Because the preponderance of the evidence standard was such a low bar, there existed a significant probability that the wrongfully accused would suffer punishments like expulsion. Critics argued that given the ramifications this has for an individual’s life and career, universities should be more certain than 50.1 percent that the accused committed the alleged crime before disciplining the accused.

The Trump administration thought so. On Sept. 22, 2017, Secretary of Education Betsy DeVos rescinded the Obama administration’s guidelines and proposed new policies, which have yet to go into effect. In the meantime, however, Secretary DeVos issued interim guidelines. The interim guideline changes include allowing colleges to apply either the preponderance of the evidence standard or the higher clear and convincing standard, which is defined as “proof which results in reasonable certainty of the truth;” removing the mandatory requirement that investigations be completed in 60 days, allowing colleges to set an appeals process for both parties or just the accused, and allowing colleges to facilitate mediation. Secretary DeVos’s intentions were made clear in a written statement. She said, “This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly. Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

While the Trump administration is deciding on a binding regulation to federal guidelines, Title IX policies are already being changed in California because of a state court decision. In John Doe v. Kegan Allee, et al., the Court of Appeals for the Second District of California held that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses is essential to deciding the case, the university must provide a mechanism that allows the accused to directly or indirectly cross-examine witnesses at an in-person or videoconference hearing. The court elaborated, saying this is because live cross-examination is “the greatest legal engine ever invented for the discovery of truth.” It “permit[s] the fact finder...to observe the demeanor of the witness in making his statement,” which aids “the fact finder in assessing his credibility.”

While the Second District Court of Appeals stressed that university disciplinary hearings are not formal criminal trials, it recognized the value of asking witnesses questions in front of a trier of fact, especially when there are contested stories. The importance of this principle is reinforced by the Confrontation Clause of the Sixth Amendment, which says “in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.” Generally, this means that the accused is able to conduct live cross-examination of witnesses even when the crime is egregious.

Live cross-examining victims of sexual assault will no doubt inflict some degree of trauma. But there is a reason why this fundamental principle exists, and university hearings should not be exempted. If victims were exempted from live cross-examination in university hearings because of their traumatic experiences, this could lead to a slippery slope. What’s next? Should robbery, assault and automobile accident victims also be exempted because they suffer from emotional trauma too? Prohibiting live cross-examination not only strikes at the core of America’s fundamental principles but also at the core of human rights. State Senator Hannah-Beth Jackson, a Democrat from Santa Barbara, however, recently introduced legislation that seeks to unwind this practice, despite its imperative value in our justice system.

On Feb. 21, 2019, Sen. Jackson introduced SB 493, legislation that, among other things, seeks to unwind this fundamental principle of live cross-examination of alleged victims and those accused. This means in a “he said, she said” situation, neither the alleged victim nor the accused—which are arguably the two most important parties—will be questioned in a live setting. SB 493 would also require that schools use the preponderance of the evidence standard in determining whether an accused student is responsible. Should colleges be forced to hand down severe disciplinary sanctions that would affect the rest of the lives of those accused based on their “beliefs” that they are a fraction of a percent more certain than they are uncertain?

While SB 493 has unfavorable qualities, the legislation is not completely negative. In fact, it includes many positive provisions that schools must follow, including investigating reports of sexual harassment and assault, regardless of whether they took place on or off campus; providing training to school officials involved in investigations; offering opportunities for both parties to present witnesses and other evidence; and notifying students of complaint procedures and timelines. These provisions should be incorporated in California law as they further justice and fundamental principles through promoting fairness and equity.

Changing Title IX policy is no doubt a difficult decision to make. It requires balancing the fundamental rights of the allegers and the accused while ensuring that justice is served. SB-493 is still in the committee phase, so there’s plenty of time to remove the unjust portions while keeping the portions that promote fairness and equity intact. However, this will only happen through voicing our collective opinions to Sen. Jackson and our state representatives. As the oft-repeated preventive saying goes, be an upstander, not a bystander.