Protecting due process and academic freedom in Title IX investigations

On July 12, ACTA sent a letter to the Senate Committee on Health, Education, Labor & Pensions as they met to interview Ms. Catherine E. Lhamon on her nomination to be Assistant Secretary for Civil Rights at the Department of Education. This letter was sent to educate the Committee on the importance of due process and academic freedom protections for students and faculty involved in Title IX investigations. Ms. Lhamon previously served as Assistant Secretary  for Civil Rights under President Barack Obama from 2013-2017. The letter is posted below.

Dear Chairman Murray and Ranking Member Burr: 

I am writing to the Senate Committee on Health, Education, Labor, & Pensions with great interest as you meet to discuss the nomination of Ms. Catherine E. Lhamon to be reappointed Assistant Secretary for Civil Rights at the Department of Education. 

For over 25 years the American Council of Trustees & Alumni (ACTA) has strongly promoted the ideals of academic freedom, academic excellence, and accountability at institutions of higher education. My letter concerns the absolute need to maintain protections for due process and academic freedom for those accused of sexual misconduct as defined in Title IX of the Education Amendments Act of 1972. 

In light of President Biden’s executive order instructing the Department of Education to re-evaluate current Title IX regulations, ACTA urges the Committee to carefully consider how Ms. Lhamon’s reappointment could affect the future of Title IX rules. 

Due Process 

As you are aware, the U.S. Constitution’s Fifth and Fourteenth Amendments guarantee due process rights for all Americans. However, these protections are seldom recognized at institutions of higher education during Title IX investigations. Often the modus operandi of investigators is de facto to presume the accused is guilty-until-proven-innocent. This is not the way it should be, especially since there are documented cases in which the accused did not receive even basic information to defend themselves (such as information on the charges against them), or the investigation lacked other due process procedures. 

No reasonable person dismisses sexual violence at colleges – or anywhere else – as anything other than an atrocious criminal act. But the fact that we are dealing with such a serious and emotionally charged issue does not give the Government or higher education institutions the right to ignore basic tenets of fairness and due process that have been the glory of judicial procedure in the United States. It is precisely when emotions run high that we most need the rule of law and respect for due process.  

Current Governor of Colorado and former Congressman Jared Polis once stated during a 2015 House of Representatives subcommittee hearing, “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people…We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.” It is precisely because of statements like this, that due process protections need to be recognized in Title IX investigations.  

One needs to look no further for a clear example of why the accused should be granted appropriate due process protections than the incident at San Diego State University (SDSU) in December 2014 between Francisco Sousa and Jane Doe. Francisco and Jane met at an off-campus party and subsequently engaged in oral sex. Afterward, Jane filed sexual assault charges accusing Francisco of forcing himself on her and imprisoning her. Because the incident occurred off-campus, sexual assault charges were filed with police, and SDSU suspended Francisco pending a Title IX investigation. At his initial Title IX hearing, he requested information on the accusations against him but did not receive any. Instead, SDSU’s Title IX coordinator assured Francisco that he would not be granted a full Title IX hearing, he could not confront his accuser and had no right of direct participation of counsel.  

Between December 2014 and March 2015, Francisco sent multiple formal requests for information to SDSU but did not receive any. In February, the San Diego County Attorney’s General office concluded their investigation and did not file any charges against him. Then, in March 2015, Francisco forwarded a copy of the San Diego State Police report to SDSU’s Title IX coordinator, which provided information on the nature of his and Jane Doe’s connection. As became clear, these two students did know each other, shared text messages, flirtation, and even kissed before the alleged incident. After 16 months of receiving no information, with no other recourse, Francisco finally filed a writ in superior court in which he requested that SDSU be ordered to provide notice of allegations and evidence against him. In April 2017, San Diego State University provided monetary relief to Francisco. 

The above incident is only one of many instances of wrongful Title IX investigations. It can be argued that the issuance of the 2011 Dear Colleague Letter by the Department of Education, which significantly expanded the definition of sexual harassment to include verbal conduct, instructed institutions of higher learning to quickly investigate accusations, and strongly discouraged cross-examination of accusers, exacerbated problems in Title IX enforcement. The letter also instructed colleges to use a preponderance of evidence standard when investigating Title IX complaints. As a result of this guidance, the number of Title IX complaints skyrocketed to almost 700 as of March 2021. 

Scroll back to the year 65 CE, or thereabout. Upon making a gastrointestinal noise (aka farting) in one of Imperial Rome’s latrines, the Roman poet Lucan quoted a verse that Emperor Nero himself had proudly composed describing the breaking of thunder. The reaction was something that only Monty Python could imagine – except that it actually happened. Romans scrambled to straighten their togas and get out of the potty, lest they be seen to smile at the jest and fall victim to a tattling informer laying a charge of high treason. Hilarious, except the executions and forced suicides were not. How far are current campus codes of conduct from prosecuting even innocuous humor and jest? 

It is truly the Age of Nero, not the Age of Aquarius that we have embraced.  Like Nero and other paranoid potentates past and present, Title IX enforcers favor extra-judicial procedures. Because of harmful guidance issued by the 2011 Dear Colleague Letter, a convicted student could have been placed in double jeopardy of having the sentence increased from, e.g., suspension to expulsion, if the aggrieved party argued that the punishment was too light. Thus, OCR’s social hygiene trumped the vision that informs the Fifth and Sixth Articles of the Bill of Rights. Since a student cannot face imprisonment for a campus conviction, OCR blandly explained, “the same procedural protections and legal standards are not required.” The student facing expulsion in a campus kangaroo court should therefore not feel aggrieved, even though his or her educational progress and vocational opportunities might come to a screeching halt because of a wrongful and capricious campus judgment. 

Due process protections for the accused in Title IX investigations are absolutely necessary. Guidance is also needed to protect the free speech rights of both students and faculty.  

Academic Freedom 

The 2011 Dear Colleague Letter also curtailed academic freedom protections for students and faculty by expanding the definition of “sexual harassment” to include verbal conduct with insufficient definition of the distinction between protected speech and violation of the law. This drastically increased the number of Title IX investigations across the country. However, recent changes to regulations brought needed relief.  

The amendments to Title IX regulations issued in August 2020 are a significant improvement for colleges and universities, which struggled to interpret rules set by the 2011 Dear Colleague Letter. The inability to interpret what did and did not constitute sexual harassment obstructed free speech at institutions across the country for both students, as well as faculty. 

I call to your attention a 2015 investigation at Northwestern University. Professor Laura Kipnis published two essays in The Chronicle Review highlighting a sexual harassment case and critiquing the institution’s overreaching sexual misconduct policies. Several students then filed a Title IX complaint against her. After an extensive and exhausting investigation, Northwestern found no evidence of wrongdoing and cleared Professor Kipnis of the allegations.  

Congress needs to help. Congress should require the Office of Civil Rights to give public notice of hearings and rulemaking on these issues. The DOE, and the schools it regulates, should not be allowed to lower evidentiary standards in disregard of Constitutional principles and Americans’ deep respect for due process—by bureaucratic fiat.  Rather than creating ill-defined systems of shadow justice in our colleges, it is time that we demand that universities reconnect their students with the life of the mind.

We hope that members of this committee consider these examples as you discuss Ms. Lhamon’s reappointment to the Department of Education’s Office for Civil Rights. 

Thank you for taking the time to consider our letter. Should you have any questions, or wish to discuss further, please contact me at (202) 467-6787.  

Warm Regards, 

Michael B. Poliakoff, Ph.D. 
President