19 Senators Endorse Fewer Due Process Rights in Title IX Proceedings //

Recently, 19 United States Senators signed an alarming comment endorsing the Department of Education’s proposed rule changes to the responsibilities of K-12 schools, colleges, and universities to ensure educational equity under Title IX. As detailed below, the proposed rule changes eliminate critical rights for the accused. The comment, which you can read here, “applauds” the deprivation of due process for the accused:

• Supports elimination of the requirement that schools provide written notice of the initiation of the grievance process, including written notice of the allegation against the accused.
• Supports elimination of the requirement that colleges and universities conduct a live hearing with cross-examination and have a separate, neutral, third-party decision-maker.
• Endorses the use of the “presumption of innocence” standard of proof rather than “clear and convincing evidence.”
• Supports the elimination of the presumption of innocence because it “perpetuates the harmful and false stereotypes that those who report sex-based harassment are being untruthful.”

It is nothing short of alarming that these senators presuppose the “survivorship” of accusers and therefore the guilt of the accused. This is a backwards and dangerous approach found nowhere else in any reliable adversary system. Further, we take great issue with the senator’s description of why the live hearing process should be eliminated:

“The harmful live hearing and cross-examination process, which is wholly unnecessary to determine what happened in a particular incident, re-traumatizes survivors who have already been abused, harassed, and discriminated against and unfairly provides an advantage to the more resourced party.”

This severely mischaracterizes the purpose and effect of a live hearing and belies the critical importance of the credibility determinations that must be made and the most effective and fair way to make them. In fact, the live hearing is the only opportunity the accused party has to confront the story of his or her accuser and bring forth important information that may contradict their story.

We at Meilstrup & Brown are incredibly disappointed with the proposed rules and the support for them articulated by these 19 senators. Here in the United States, when someone is accused of wrongdoing, they are entitled to certain simple but vital protections: the right to notice of the allegations, the presumption of innocence, and the right to confront and question the accuser. That this Administration seeks to eviscerate those rights in this setting should be a red flag to us all.