The long-awaited Department of Education regulations on adjudicating allegations of
sexual misconduct on college campuses are poised for release. In response, the
American Council on Education (ACE) (1) and eighteen state attorneys general (2) have
sought to block the guidelines. I believe this effort is misguided.
The regulations would restore basic fairness to sexual misconduct proceedings on
campus. Over the past ten years, a shadow legal system has simultaneously failed
either to sanction campus predators, or to provide basic due process rights to students
and faculty accused of sexual misconduct. This failed regulatory regime is a result of the
2011 Dear Colleague Letter, guidance from the U.S. Department of Education that
expanded Title IX to address campus sexual misconduct, including both sexual
harassment and sexual assault.
The failure of the existing system to ensure due process for accused faculty and
students is well documented. A 2016 report from the American Association of University
Professors assailed campuses for “inadequate protections of due process and
academic governance.” (3) Open letters from 28 faculty members at Harvard Law School (4)
and 15 professors at the University of Pennsylvania Law School (5) have shared similar
concerns, as did Supreme Court Justice Ruth Bader Ginsburg in a 2016 interview by
The Atlantic. (6) When challenged in court, colleges and universities have suffered over
170 setbacks to students accused of sexual misconduct. (7)
Nor has the existing system proved successful in reducing campus sexual misconduct.
Data collected by the Association of American Universities indicate that reports of
sexual assault, whether by physical force or inability to consent due to intoxication,
actually increased between 2015 and 2019. Moreover, only 45 percent of campus
survivors said that school officials were “very” or “extremely likely” to take their
allegations seriously. (8) And most infamously, the serial abuser Larry Nassar was
allowed to remain in his position at Michigan State University after the school’s Title IX coordinator somehow concluded in 2014 that Nassar’s behavior was “medically appropriate.” (9)
The American Council on Education and the eighteen state attorneys general offer
specious arguments for blocking the new regulations. In their open letter, ACE contends
that, “at a time when institutional resources already are stretched thin, colleges and
universities should not be asked to divert precious resources away from more critical
efforts in order to implement regulations unrelated to this extraordinary crisis.” Yet
colleges and universities have known for eighteen months that the new regulations were
forthcoming. Moreover, COVID-19 means that school Title IX officers, directly
responsible for implementing the guidelines, have more free time than ever before. With
campuses shuttered and students sent home, opportunities for campus sexual
misconduct have plummeted. In short, this is the ideal time for the new regulations to be
implemented.
The new Department of Education regulations aren’t perfect, but they will establish
adjudication mechanisms that are much fairer to accused students, faculty, and staff. A
fairer system, in turn, will enjoy greater support and credibility among stakeholders. And
with any luck, this means fewer dangerous predators on campus. For all these reasons,
I urge you to withdraw your opposition to the new regulations.
Citations:
1. https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/Letter-ED-
delayt9s117-032420v2FINAL.pdf
2. https://files.constantcontact.com/bfcd0cef001/71385110-7632-4adc-a7ae-0f47bc4f6801.pdf
3. https://www.aaup.org/report/history-uses-and-abuses-title-ix
4. https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-
policy/HFDDiZN7nU2UwuUuWMnqbM/story.html
5. http://media.philly.com/documents/OpenLetter.pdf
6. https://www.theatlantic.com/politics/archive/2018/02/ruth-bader-ginsburg-opens-up-about-metoo-voting-rights-
and-millenials/553409/
7. https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0
8. http://www.saveservices.org/2020/04/aau-climate-surveys-reveal-failure-of-campus-sexual-assault-policies/
9. https://www.theatlantic.com/education/archive/2018/01/the-nassar-investigation-that-never-made-headlines/551717/
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State Attorneys General, Mailing Addresses
JOSH SHAPIRO
Attorney General, Commonwealth of Pennsylvania
Office of the Attorney General
Strawberry Square
Harrisburg, PA 17120
XAVIER BACERRA
Attorney General, State of California
Office of the Attorney General
P.O. Box 944255
Sacramento, CA 94244-2550
PHILIP J. WEISER
Attorney General, State of Colorado
Office of the Attorney General
Colorado Department of Law
Ralph L. Carr Judicial Building
1300 Broadway, 10th Floor
Denver, CO 80203
WILLIAM TONG
Attorney General, State of Connecticut
Office of the Attorney General
165 Capitol Avenue
Hartford, CT 06106
KATHLEEN JENNINGS
Attorney General, State of Delaware
Delaware Department of Justice,
Office of the Attorney General
Carvel State Building
820 N. French St.
Wilmington, DE 19801
KARL A. RACINE
Attorney General, District of Columbia
Office of the Attorney General
441 4th Street, NW
Washington, DC 20001
CLARE E. CONNORS
Attorney General, State of Hawai‘i
Department of the Attorney General
425 Queen Street
Honolulu, HI 96813
BRIAN FROSH
Attorney General, State of Maryland
Office of the Attorney General
200 St. Paul Place
Baltimore, MD 21202
MAURA HEALEY
Attorney General, Commonwealth of Massachusetts
Office of the Attorney General
1 Ashburton Place, 20th Floor
Boston, MA 02108
DANA NESSEL
Attorney General, State of Michigan
Office of the Attorney General
- Mennen Williams Building
525 W. Ottawa Street
P.O. Box 30212
Lansing, MI 48909
KEITH ELLISON
Attorney General, State of Minnesota
Office of the Attorney General
445 Minnesota Street, Suite 1400
St. Paul, MN 55101
AARON D. FORD
Attorney General, State of Nevada
Office of the Attorney General
100 North Carson Street
Carson City, Nevada 89701-4717
HECTOR BALDERAS
Attorney General, State of New Mexico
Office of the Attorney General
408 Galisteo Street
Villagra Building
Santa Fe, NM 87501
LETITIA JAMES
Attorney General, State of New York
Office of the Attorney General
The Capitol
Albany, NY 12224-0341
JOSHUA H. STEIN
Attorney General, State of North Carolina
Office of the Attorney General
114 West Edenton Street
Raleigh, NC 2760
PETER F. NERONHA
Attorney General, State of Rhode Island
Office of the Attorney General
150 South Main Street
Providence, RI 02903
THOMAS J. DONOVAN, JR.
Attorney General, State of Vermont
Office of the Attorney General
109 State St
Montpelier, VT 05609
MARK R. HERRING
Attorney General, Commonwealth of Virginia
Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219