Thread by @alittleleader

Mkay, my hottest take of the century: All of the publications touting Betsy DeVos's Title IX rule as a victory the accused must not have read the reg. It is an absolute disaster for accused students–– particularly those who lack financial resources. Here are some thoughts:

I wasn't sure whether to write about this (and decided to tweet, rather than formally writing) because I don't want to take away from the fact that this regulation has the most severe and negative impact on complainants. It is a sexist, icky, unfair rule that harms survivors.

That is the most important conversation. I will be retweeting/amplifying folks engaging with that, and I will also likely add my own thoughts in the coming days.

But because DeVos's justification for this whole thing was protecting the accused, it's important to call out just how much these rules fail to do that. Destroying that pretext makes the issue–– that DeVos sacrifices students' rights to institutional interests–– easier to see.

The overarching problem here is that the rule makes mechanisms used to address Title IX complaints look more like a courtroom than a campus resolving a civil rights complaint.

That is generally /not good/ because we know that the legal system is biased against respondents of color and poor respondents. But at least, in the legal system, there are some protections against these inequalities for defendants. Here, those protections are not present.

I'm going to talk specifics now. I would be remiss if I didn't include a link to the reg itself so you can see what I mean. Here that is: www2.ed.gov/about/offices/…

I should also say that I'm not a lawyer, I am just someone who has been angry about these rules for a long time.

I deleted some tweets here because I realized I was burying the ledes, and I don't want to do that. So let's start with the meat of things: live cross-examination.

The rule mandates that all post-secondary institutions allow live cross-examination of all parties and witnesses. The parties cannot conduct this cross-examination themselves (a prudent choice), but their advisor may do it on their behalves.

Now students may bring, as their advisor of choice, an attorney. And if their advisor is an attorney, that attorney may conduct cross examination. But if they can't afford an attorney as their advisor? Whatever physics professor they've chosen to come along will do their cross.

This feels like a fundamental unfairness, for a new rule that was supposedly created to provide fairness to the accused. Wealthy respondents can have skilled, trained attorneys conduct live cross exam. What of respondents who can't afford counsel?

In addition, there are, folks, almost NO rules of evidence. There is a rape shield-like provision, which does minimal work to ensure complainants' past sexual experiences can't enter. There are also general nods to the idea that evidence that is not "relevant" can be excluded.

But how will the disciplinary panel know what is "relevant?" Who knows? Certainly no one relying on these federal regulations, because that information is not contained within their language.

Which means that panels can decide what's relevant and what's not basically at their whim. It doesn't seem to matter whether that information unfairly prejudices the respondent.

And with no clear standard established for relevance, respondents have little ground to challenge exclusion or inclusion of evidence or questioning.

Moving on: this rule does something absolutely WILD which I am 99.9% sure the proposed rule never alluded to cause I would have remembered: It alludes to the inclusion of EXPERT FREAKING WITNESSES.

Specifically, the reg states, that schools must, "provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence"

I think there are two valid reads of this (which is in itself a problem): a) all parties should be allowed to present expert witnesses or b) if one party can present expert witnesses, the other party can, too. I'm genuinely not sure which it is.

But either way, normalization of inclusion of expert witnesses in these processes is hugely problematic for respondents that lack financial resources.

A respondent advised by a layperson and without the money to hire an opposing expert is at a massive disadvantage compared to a respondent who can. And the same respondent is essentially helpless to effectively rebut a complainant's expert.

What's more–– who gets to be an expert? Who knows? Again, certainly not anyone relying on these regulations, because they don't say! They establish no standard for expertise. Which again, makes it nearly impossible for respondents to challenge the inclusion of an expert.

Finally on the hearing front, another curveball not present (as far as I recall) in the proposal: the rule allows the school to decide whether they will consolidate complaints arising from the same set of facts when there is more than one complainant or more than one respondent.

There are defense attorneys out there smarter than me who can explain why joining respondents' cases can be a huge strategic disadvantage. My limited sense is that it can limit the defenses the respondents can effectively raise.

Again, there is no mechanism expressed by which a respondent could challenge such a joinder. It seems that the school's discretion on whether to join cases is the final word.

Rounding out the hearing bit before I continue to a shorter overarching idea, is this: apparently the idea of live hearings, with live cross exam, was so important to fundamental fairness that DeVos had to make this whole rule. But apparently not THAT important, because...

It is only required for post-secondary institutions. K-12 schools can resolve complaints without live hearing or cross exam if they choose to. So in those cases, respondents might not even get a chance to speak to the fact finder!

Which actually transitions well to my second (and shorter, I promise) overarching point: the new rule sets up wonky, inconsistent standards that mean that some respondents will held responsible for things a respondent at a school next door won't.

Most notably here is that schools can choose whether to adopt a standard of proof of preponderance of the evidence or a standard of clear and convincing evidence.

So on the exact same set of facts, with the exact same evidence, a respondent at Zoom University might be found not responsible, and a respondent at Zoom College might be expelled.

In the same vein, the rule relies on a definition of rape that uses the word consent but then expressly refuses to define consent. What is very much against policy at Zoom University might be totally a-okay at Zoom college. It doesn't seem fair, nor does it make much sense.

And finally, a point that fit better in hearings but which I forgot to address now: the rules allow schools to resolve complaints "informally" should the parties choose to do so. There aren't a lot of specifics about what this looks like or how it's done.

One thing is glaringly absent: whether or not attorneys may participate. And even if they can, based on the rest of the regulation, it's safe to assume that attorneys may only participate to the extent that the parties can afford to retain attorneys.

Which means that respondents not advised by an attorney may find themselves in a scenario where they feel, because it the process is informal, they can admit some degree of responsibility for wrongdoing with lesser consequences.

And sure, any records of that admission may be protected by FERPA. But maybe down the road, if a criminal complaint is made, and maybe a subpoena or court order is issued in connection with that complaint, it's possible that FERPA isn't going to do as much as you thought it was.

Anyway, these are the respondent-side concerns I spotted on my first of what I predict will be like 1,000 reads. And though I was surprised about the degree of harm the rules might do to respondents, I shouldn't have been.

Smarter people than me have been pointing out for a long time that this was never about protecting students. It's always been about limiting liability for educational institutions.

nytimes.com/2018/11/27/opi…

And DeVos has never, ever been the due process in educational discipline queen some folks seem to think she was. She rescinded guidance that protected black and brown students from discrimination in school discipline.

chalkbeat.org/2018/12/21/211…

It is all so disappointing and exhausting. And in the end, all students lose. Because education, fairness, access, etc... has never been the goal for this administration.

That's all for now.

I'm realizing after some side conversations that there's something I should have been more clear about. The problems I've listed above are not the things that reduce institutions' liability.

That comes in through other parts of the rule that I haven't touched here.

I won't do a deep dive in this thread, but a few major points:

-using a definition of sexual harassment stricter than the definition used for workplace sexual harassment to define what schools must respond to

-stating that schools only have to respond to sexual harassment when they *actually* know about it, not when they reasonably *should* know about it
-narrowing the pool of people whose knowledge of sexual harassment counts as the school to *actually* knowing

-limiting the school's responsibility and ability to respond to assaults that take place off campus (for example, between two students in an apartment.)

These items and more limit a school's responsibility students who experience sexual harassment.

My position is that these rules were what DeVos wanted all along.

But she positioned herself as an advocate for rights of the accused because due process was a convenient, popular trojan horse she could use to garner support for a rule that may have otherwise been unpopular.

The fact that the final regulation is not effective at providing significant protections to respondents across the board points to this problem.

If she wanted to protect accused students, she would have done that. She didn't because that wasn't the thing she actually wanted.