At last, DeVos restores Due Process to Title IX
By Andrew T. Miltenberg
Last week, the Secretary of the Department of Education, Betsy DeVos, came to the rescue of hundreds of thousands of young men, restoring a sense of equity, balance, clarity and due process to Title IX procedures at colleges and universities throughout the United States. Since 2011, for men accused of sexual harassment or nonconsensual sexual activity, college campuses had come to resemble the circle of hell in Dante’s Inferno. All it took was for someone to point a finger, anonymously or otherwise, and a male student would find themselves caught up in a system that was, at best Orwellian. The specifics of the charges were illusive; access to evidence was severely limited, the investigation was borderline incompetent or meant to limit the accused from defending themselves, and the hearing was nothing short of a North Korean show trial. Findings of responsibility all too often came with little or no reasoning as hearing panels and investigators engineered the process to achieve a certain result. The sanctions that followed that result were punitive at best, and could easily derail an education and be a bar to any number of career choices.
After years of litigation and scrutiny, and countless futures destroyed, due process and fairness have triumphed. Last week, new Title IX Regulations were enacted. Now a respondent must be given the presumption of innocence; now a respondent must be given actual notice and the specific allegations related to the charge; definitions of sexual harassment have been refined and limited; the Title IX jurisdiction of universities has been narrowed; evidence must be made available at least 10 days before a hearing; there must be a live hearing with some form of cross-examination; decisions must be detailed and reasoned; and transcripts must be kept of the actual hearing itself.
While these are just the highlights, Ms. DeVos and the Department of Education should be applauded for compelling universities to treat its students who find themselves accused of a Title IX violation, with fairness, transparency and equality. The Obama Administration tore due process to pieces, Secretary DeVos, helped by some very brave young men who were not afraid to fight the system, restored justice and order. For this, we should, as Americans, be grateful.
Having represented over 200 students at college campuses in red and blue states across the country, I have seen, up close, the manner in which accused male students are inherently and routinely treated like criminals on college campuses — whether they are guilty or not — without the protections of the justice system or even the basic elements of due process due process. Now more than ever, colleges and universities need one required protocol for Title IX investigations and hearings, instead of every school having its own vastly different procedures and policies.
The rule changes guaranteeing accused students the right to an actualhearing, together with increased evidentiary protections and greater transparency throughout the investigative and hearing process, would ensure students are innocent until proven guilty — and not the other way around. Another important element of ensuring due process in these hearings is allowing for cross examination — either directly between the parties, or by an outside advisor.
Ensuring civil liberties on campus does not mean being permissive of acts of sexual violence. For too long higher education institutions looked the other way. Campus sexual assault should never be tolerated. Nor, however, should the rights of those accused be trampled. No matter what our politics may be, we should all agree that Title IX policies need to ensure that all students — both male and female — have the right to due process and a fair and impartial investigation.
Andrew Miltenberg is a New York attorney who specializes in Title IX and campus assault due process. He is currently engaged in several groundbreaking Title IX cases, including a first-of-its-kind lawsuit against Michigan State University. According to Title IX experts, Miltenberg has filed more Title IX lawsuits than any single law firm in the country.