Do you know your rights?
2022-12-04 · Guest: Joe Cohn (Director of Legislative Policy at FIRE) · 52:45
Due process and Title IX on college campuses
Bob Zadek and Joe Cohn discuss the erosion of due process rights on college campuses, specifically regarding sexual harassment and Title IX allegations. They trace the history from the 2011 “Dear Colleague” letter to the formal rulemaking under the Trump administration and the subsequent rollbacks proposed by the Biden administration, highlighting the dangers of the “single investigator” model and the lowering of evidentiary standards.
Topics: Title IX, due process, campus sexual harassment, FIRE, Dear Colleague letter, Administrative Procedure Act, preponderance of the evidence, single investigator model
Speakers: Bob Zadek, Joe Cohn
Introduction to FIRE and Campus Civil Liberties [00:00]
Bob Zadek: Hello friends, I’m Bob Zadek, host of the country’s longest-running libertarian broadcast, nationally streamed at 8:00 AM Pacific Time Sundays on the 860 AM app. The audio library in my Bob Zadek Show podcast provides 15 years of discussions of the important issues then and now. I promise you in-depth content on social, political, and economic issues that really matter, and always with the ideal guest—accessible and entertaining. Our rule: ideas, not attitude.
Joe Cohn is the Director of Legislative Policy at FIRE, the Foundation for Individual Rights and Expression. Joe is a 2004 graduate from the University of Pennsylvania Law School and the Fels Institute of Government Administration. Joe and I will discuss sexual harassment and discrimination on college campuses, the role of the federal government in general and the United States Department of Education in particular in regulating the protection of victims of sexual harassment as well as the violators of those rights, with specific attention to the due process rights of the accused or the absence of those rights. Trigger warning everyone: what you hear during this next hour will not make you very happy. Thank you all for listening, and Joe, welcome to the show.
Joe Cohn: Thank you so much for having me, Bob, and I want to thank your audience for tuning in and hearing us chat.
Bob Zadek: And an hour from now, Joe, they will be in their heads thanking you for sharing your wisdom with them. So thanks all around. Now Joe, tell us—you are the Director of Legislative and Policy at FIRE, Foundation for Individual Rights and Expression. Former name, before you broadened your mandate, you were known as the Foundation for Individual Rights in Education, but now it’s broader. Tell us about the mission of FIRE, what you hope to and, I will add, effectively accomplish in your work on college campuses.
Joe Cohn: Well, we were founded in 1999 to be a fair and effective advocate for the civil liberties of students and faculty at institutions of higher education. Since 1999, we’ve been on the front lines of those issues: advocacy on the ground at the schools themselves, advocacy in the media, and I was brought on in 2012 to add advocacy in the halls of government because we were seeing that government actors—and when I say that, I’m not talking about the public universities that are also government actors, but I’m talking about members of Congress or state legislatures or the White House or federal agencies—were starting to tell colleges and universities what they needed to do, and they weren’t always telling them to do the right thing that complied with constitutional rights.
Civil Liberties on Public vs. Private Campuses [03:58]
Bob Zadek: Now, you mentioned that very important phrase and concept: civil liberties. When one thinks of civil liberties, one thinks of those rights, those liberties, that all of us would like to think we hold and are protected against—and here comes the important part—against encroachment by government. But yet, the adverse party, if you will, when you are talking about protecting civil liberties on college campuses, the adverse party, putting aside governmental institutions like state colleges and the like, is another private party. So tell us what you mean by civil liberties where the counterparty, the party who may be depriving one of civil liberties, is a private actor, is acting the same way a business might react. One does not think about protecting civil liberties from encroachment by Walmart. So why colleges and universities?
Joe Cohn: Well, let me unpack that a little bit. With respect to the public institutions of higher education, they themselves and their employees are government actors. So when a university expels someone for protected speech or punishes them without due process under another charge, it is government action that is implicating the deprivation of the civil liberties.
Now, we’ve seen a trend on college campuses over the last six or seven years roughly of more campaigns for censorship being led by fellow students. That’s a little bit of a depressing thought when historically the students themselves had been the leaders in fighting for free speech, and they have by and large embraced a new tactic of appealing to administrators to silence their adversaries. So there is an element of what you’re describing in terms of in some instances having fellow students, private actors, as the adversary.
But another kind of related context here is that we also do our advocacy at private institutions of higher education, who are not government actors. There, the courts have for years protected concepts like academic freedom and free speech, not on the basis of the constitutional protections that are correlated with those concepts, but instead with respect to contract law. So if you apply to go to school at Harvard, a private institution, and Harvard promises you when you apply you’ll have free speech rights, but they don’t live up to those promises, the courts have been willing to say they’ve breached their contract with you and enforce those rights in that way.
Bob Zadek: I’m so glad that you mentioned that. I felt when I first started learning about that, that FIRE and other institutions—but FIRE clearly led the charge—came up with a theory that I often wondered about: what cause of action would one have if you felt that a private university—think it could be a private business, think Walmart—a private institution which can basically do what it wants, is depriving you of rights? They’re allowed to do that. And the concept of using breach of contract—I don’t know if FIRE was the organization that thought through and developed that body of reasoning and that body of law, but it certainly was brilliant in my opinion, and it gave you a perfect tool to use where your adverse party is a private college rather than a public, that is a state-owned university or college.
Joe Cohn: I’d love to take credit for that tactic, but it predated FIRE’s existence. We’ve utilized those cases and been some of the more frequent advocates, at least in the public sphere, making those arguments since our founding, but we weren’t the ones who came up with the idea.
The History of Title IX and the “Dear Colleague” Letter [08:51]
Bob Zadek: Now, the story—I will start our story today so the audience can follow our discussion. I’d like to—we can start in many different starting points. I think we’ll start with something which civil libertarians, libertarians in general, perhaps conservatives, will all know as the “Dear Colleague” letter.
Now, just to set the stage, I’m going to go back a tiny bit and just mention that way back in 1972, an important federal statute was enacted to basically protect rights of various subgroups against encroachment. And included in that statute was a section called Title IX, which dealt with protection of those who are abused by dint of their sexual orientation. So we start there with a well-meaning, probably at the time well-drafted bit of legislation and Title IX, which was basically—the first real activity under Title IX was it caused colleges and universities to rethink how they allocated economic resources between men’s athletic activities and women’s athletic activities. When most of the attention was going to men’s activities, that was felt unfair to women athletes. Probably made—I’m sure there was a good point to be made, and that was the first center of gravity.
But then we’re going to fast forward, Joe, to something which I referred to a second ago called the “Dear Colleague” letter. Now, I will just tee up the issue as if—just on a very basic level—the “Dear Colleague” letter was nothing other than a letter from a bureaucrat to some college administrators. I said that intentionally benign characterization so you can show how it was far more than simply a bureaucratic letter, which by the way has no legal significance—I should mention that—but you will expand upon that. Why this letter, which is a letter, not a statute, not a subpoena, it’s a letter—think email—from a bureaucrat to a bunch of college administrators. That starts us on today’s topic. Set the stage for that letter if you would, Joe.
Joe Cohn: Sure. Well, Bob, I appreciate you kicking us off with a good Title IX origin story. So, to start here, I want the audience to for a moment consider the operative language of Title IX, which was: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” except that—and then the language goes on.
But the key there was that you’re looking at the late ’70s when courts started tackling the question of whether or not a school is living up to that promise to eliminate discrimination if it’s allowing their campuses to be permeated with sex-based harassment, whether it’s faculty members harassing students or students harassing each other. And the courts over a number of years conclude that a school can’t be “deliberately indifferent”—which is a legal phrase of art we might talk about a little bit more later on in this conversation—to known instances of sex-based harassment between students. And they go on to carefully craft definitions of standards for when things cross the line.
And the theory there was a smart one, which is—and you can think about it this way—if there really is a tremendous amount of sexual harassment, and under that umbrella I’m going to include sexual violence because the courts have said that sexual violence is a form of harassment as well, and just do nothing about it again and again and again, you can see how female students would feel less comfortable going to school. And that’s really the main aim of Title IX, to make sure that schools and universities and K-12 schools are environments where students can learn free of this sex-based discrimination. So that’s kind of the overarching legal framework that you’re looking at.
So here you fast forward to 2011, and you have the Department of Education’s Office for Civil Rights—so the acronym there is either “Ed” if you’re talking about the Department of Education as a whole, or one of its sub-offices, the Office for Civil Rights, OCR—sending this “Dear Colleague” letter that you introduced, Bob, which is an informal letter telling all of the schools that they regulate its views on what’s required under Title IX.
Now, the thing to keep in mind is the structure of Title IX says you’re not eligible for federal funds if you have this sex-based discrimination on campus. So that’s the penalty for violating Title IX, is you could lose all of your federal funds. So when the Department of Education, which is the agency chiefly responsible for figuring out if there are violations, says, “Here’s how we will measure whether you’re in compliance,” even if it’s not a binding document like a court case or a law or statute, if you’re a general counsel representing an institution and you ignore that warning of “this is what we will be looking at when deciding whether or not we’re going to take action against you,” you’d be committing malpractice. So that’s what you have: a letter to every school saying, “If you don’t do this, we might go after you for all of your federal dollars.”
Federal Funding as a Tool of Coercion [15:42]
Bob Zadek: I just want to jump in if I can, Joe, very quickly, to remind the audience that Joe mentioned the Department of Education and then mentioned they decide who gets federal funding. For the most part, the very purpose of the Department of Education is to decide who gets the money. They are nothing other than a disbursement office, with the teeth being that they hold back the money. They do not have a SWAT team associated with the Department of Education, they do not have a police force, but they have the dollars.
So notice in the big picture: the federal government on the one hand accumulates a lot of money—federal income tax. Now gets the money and it uses the money as a source of power, not statute itself, not police power, not criminal law. It uses money which it has collected through taxing states and localities in the—or the people in the first instance. It accumulates the money, the money gives them the power, and then the power is then used to coerce private colleges who are not per se subject to federal regulation—they’re private colleges, so in general not subject to regulation—but they do need the money. So the money is the hook that gives the federal government the power. I just wanted to mention that dynamic, Joe, because it’s so important in so much of what we discuss.
Joe Cohn: There’s two forms of jurisdiction here for the federal government. The primary one is the one that we’ve just been discussing and is the broader one: it’s the Spending Clause. If you want access to these dollars, here are the conditions. Condition one: you’re not going to have forms of prohibited unlawful discrimination on campus. Now, Title IX deals with sex-based discrimination, but there are other titles: Title VI dealing with race, national origin, etc. You have the anti-rehabilitation act, and you have the Americans with Disabilities Act, protecting people from discrimination on the basis of other disabilities. It’s a way for the federal government to tell institutions that you’re not going to allow discrimination to permeate on your campuses. And that kind of mirrors the framework of the Civil Rights Act that was trying to deal with those issues with respect to contexts like employment, where the percentage of people who work for governments versus working for private actors are low, and the need to get rid of discrimination in employment led Congress down the path of relying largely on that spending—on anti-discrimination, sorry, equal protection justifications, which is where you have the justification at the public institutions. So you have two things going on: at public institutions you’re talking about an anti-discrimination rationale to give the jurisdiction, and at private institutions you’re talking about spending jurisdiction. Of course, public institutions have both.
Lowering the Evidentiary Standard [18:51]
Bob Zadek: So now we have the “Dear Colleague” letter where the Department of Education says, “In case you’re interested, colleges and universities, in case you’re curious, when we dispense financial goodies, we care about this stuff.” Well, so that’s akin to the choice “your money or your life” when a gun is pointed at your head in an alleyway. Yes, you have a choice, but you kind of tend towards one answer rather than the other. So now, what flowed from something as unenforceable per se as a “Dear Colleague” letter?
Joe Cohn: Well, the “Dear Colleague” letter in 2011, the April 4th, 2011 “Dear Colleague” letter was pretty interesting because it was trying to shed a light on what the government viewed at that time as a lack of sufficient attention towards the problem of sexual harassment on college campuses. But one of the things that it ordered institutions to do was to use the lowest standard of evidence when deciding an allegation against a student. In deciding in an expulsion or suspension hearing whether or not the student was going to be punished.
So whereas for many years the norm across the country had been in campus disciplinary proceedings to use an intermediate or a mid-level standard, which is called the “clear and convincing evidence” standard—which I’ll break down the different standard choices in a moment—the Department of Education ordered schools to use instead the “preponderance of the evidence” standard.
So just to break this out so that the audience can kind of think this through: in a criminal proceeding, in order to be found guilty, you need to be found responsible “beyond a reasonable doubt,” which is, you know, that we’re pretty darn certain that you did it, and it’s unreasonable to think that you didn’t do it. The next standard down, which is still a high one but not nearly as high as “clear and convincing,” which—there isn’t a numerical score you can give, but if you just thinking about it in general terms, it’s like being 70% sure this really probably happened. And then the next is “preponderance.” Now, “preponderance of the evidence” standard is what’s used in a civil lawsuit. If you sue someone else in a court, and it says the jury’s asked, “Who do you believe more? 50.01%.” No matter how close a call it is, if you think one side is right, that’s the one you rule with. And then the only other standard below that is “is there any substantial evidence? Show me anything that supports this particular point of view,” which is near complete deference to the entity that’s making the decision.
So the Department of Education reasons in this letter, they say, “If you were to sue someone in court for a violation of your civil rights, the court would decide it using that 50.01% preponderance standard. So we think it’s the only standard that is appropriate to use in these disciplinary proceedings.” And of course, there are a lot of real consequences to that and real flaws to that logic. For example, and I think one of the primary flaws here is that when you do have a lawsuit in court and a jury is asked to make the decision at the end, it’s after a process that has significant rules and protections. Both sides have the right to have lawyers—well, that doesn’t exist on college campuses by and large. There’s discovery, so you get to find out what the other sides know and get access to documents—that doesn’t exist in the same way on college campuses. There’s rights to cross-examination—that’s not there. There’s a judge who knows what the heck they’re doing and has been legally trained—let’s assume that the judge knows what they’re doing. But that’s not there either. So at the end of a court case, when you ask 50.01% to a jury, there are these other guardrails in place. They’re just not there on campus. So that was the implication, a clear signal to schools.
The Severity of Campus Consequences [25:57]
Bob Zadek: One has to observe that it’s one thing for the Department of Education to say appropriately, “Okay, college campuses, you better not have out-of-control sexual harassment, or else it’s going to cost you.” Fair enough. But the “Dear Colleague” letter not only said that, but it said, “And in reaching that goal of no sexual harassment, here’s the way you must reach the goal.” It doesn’t say any way you want to reach the goal so long as it’s lawful is okay with us, but they said, “We don’t trust you even to pick the right process.” So it is a statement that the colleges are incapable of figuring out how to achieve the desired result.
And the other observation is you drew this important parallel in explaining the “Dear Colleague” letter: do we use a civil litigation standard or a criminal litigation standard? In deciding which standard is proper, as you explained, using a trial standard lacks the guardrails—of course, you’re exactly right about that, and that was an important point. But in addition, what occurred to me was, well, let’s see: in a civil litigation, what’s often at stake is money. And money is money; you have more, you have less. In a criminal trial, what’s at stake is your liberty. It’s—there’s much more at stake than just dollars and cents.
Now, if you consider the adverse consequences that I think Joe will probably get into of a bad finding that you—often a male—are guilty of sexual harassment, the consequences are profound on the rest of the life of that convicted—although it’s not a criminal trial—male usually. And isn’t—one—I would ask the audience to think: is the effect of the adverse result on the accused more akin to the dramatic effect of a criminal conviction or more akin to the effect of a civil lawsuit in which you lost? And I think it’s inescapable to me: it’s much more like a criminal trial, and therefore that should be the standard. Sorry, Joe, I just wanted to—
Joe Cohn: No, I mean, I’m glad you said all all of that. I mean, I largely agree. Courts have looked at the context of what’s at stake in civil proceedings all of the time and been able to make distinctions between things where you could just settle—you know, you can just pay your way out of it if you want, you know, and you can’t settle a claim that you’re accused of engaged in sexual harassment, which also includes sexual violence. So you’re also talking allegations regardless of what label they want to apply to it in the in their code of conduct—you’re talking about allegations of rape. You can’t just settle that to move on.
And the consequences of getting expelled from school are significant and lifelong. More on par with, you know, getting removed in a deportation proceeding or losing all of your, you know, benefits if you rely on public benefits to survive, or more akin to losing your housing in an eviction than being sued by someone else for a car accident where you’re figuring out who has to pay. So that’s why we think that the middle standard of “clear and convincing” is more appropriate.
But one other point that I think is really worth noting, which I think should be in the back of people’s minds as they listen to this conversation, which is: it’s true that at the end of a campus proceeding, the dean isn’t going to sentence an accused student to 20 years in jail. That’s true. But most people don’t realize that the statements that students make in campus proceedings are often admissible against them in later criminal trials. And there’s a movement to remove statutes of limitations or extend them decades for sex-based criminal acts. So you have 18 and 19-year-olds being asked to defend themselves without lawyers who are allowed to actively participate in proceedings where they’re being asked about the factual specific details of events that could be the factual predicate for convictions which across the country have penalties ranging from life in prison on the high end to only one state that has a maximum penalty of less than 10 years. Meaning that in 49 states, you can be sent away for more than 10 years if they find you guilty of the same fact pattern that you’re being asked to talk about on the record in a college proceeding.
The “Prosecution-like” Proceedings on Campus [27:58]
Bob Zadek: So now we have the “Dear Colleague” letter which sets in motion these more aggressive—I’ll call them prosecutions, technically incorrect, but to most of our listeners, they understand what I’m saying—a prosecution-like proceeding where we have a typically a student, but not exclusively, a student who is accused of bad acts, sexual harassment, rape, something akin to rape, unwelcome contact, whatever the specifics are. There’s an accusation, and then as a direct result of the “Dear Colleague” letter, tell us sort of what happens now. Universities who have a problem: they are required to make sure sexual harassment has been—they are taking steps to limit the degree of sexual harassment and the frequency. They’re required to do that. They are told how they must do it by the “Dear Colleague” letter. So there’s a very natural consequence of this unenforceable, not have the weight of a statute or a law, letter. What were the consequences before we had round two, which we’ll get to in a moment?
Joe Cohn: Yeah, I mean, the consequences were pretty stark on college campuses, which is that schools tripped over themselves to demonstrate to the federal government that they were really going to be tough on sexual harassment. And they looked at their policies and they brought them right in line with what the department was saying. Another provision the department said was that schools shouldn’t allow the students who are parties to these cases to cross-examine each other.
Now, I don’t find that particularly problematic if you require them to do a meaningful cross-examination in another way. But if you’re not requiring schools to allow the students to have representation and they’re told they can’t conduct a cross-examination if they’re on their own, that had profound consequences too. So during this era of the “Dear Colleague” letter era, schools were undermining due process left and right in these campus sexual assault proceedings.
And for just a real quick moment, I want to point out that the picture was not always and is still not rosy in other kinds of allegations that schools are adjudicating. They adjudicate other serious things too, from fistfights to drugs in the dorms, etc. But this is the only context where the federal government was telling schools, “You better provide fewer due process protections or your federal dollars might be at stake.”
Regulation by Letter vs. Formal Rulemaking [32:55]
Bob Zadek: And that was important because this show is about, in part, the relationship between the federal government, due process rights of students, and that dynamic of how that all works. Now, you mentioned something—I want to just remind the audience of something you just now have said. This was—there was a clear, direct, powerful change in behavior by universities as a result of a letter which had no force of law whatsoever.
In other words, assuming the author of the letter or the department had decided this was a good idea to reduce due process rights, assuming the agency itself made that decision, what they could have done—they could have tried drafted a regulation, which does give it the force of law more or less, and gone through an entire process under the Administrative Procedure Act, other federal statutes, where the process itself has rules and protections—there are hearings and public comment. So that’s what a regulation looks like. A letter is unregulated. And what you have explained, Joe, is this regulation, this letter—a letter—had perhaps even greater impact, but certainly no less impact than a regulation, except it bypassed all of the protections under the Administrative Procedure Act and other laws.
Joe Cohn: I’ve made that same argument that you’re making in a number of different settings, and the Department of Education in that period was trying to have it both ways. They were telling members of Congress who were grilling them on these points that they recognize the difference between regulations and guidance. Regulations are binding as a matter of law; you have to follow it, or when the government tries to take an action, they will cite the violation of the regulation as what you’re being measured against to take its action. Whereas here, they were saying, “We’re just telling schools our perspective on what we consider a violation, so what we’ll choose to go after you on.”
And that did not impress then-Chairman of the Senate Health, Education, Labor, and Pensions Committee Lamar Alexander, who had himself been the Secretary of Education, had been a university president. He saw right through that immediately, as did a number of his colleagues. He was asking the head of OCR at the time under oath, “So are you planning on going after schools that don’t follow your interpretation, your advice?” and they matter-of-factly said absolutely they plan on going after people because they think that’s what the law requires. And that was just not right.
Campus Sexual Harassment Statistics and Narratives [36:10]
Joe Cohn: So—if you don’t mind, I think it might be helpful for the audience to kind of get a little bit of a fast forward into the next era here, because FIRE worked incredibly hard to get the Department of Education to change its tone. We filed a lawsuit back in the final days of the Obama administration over the “Dear Colleague” letter, and it was eventually mooted out when President Trump’s Department of Education agreed with us, withdrew the letter voluntarily, and initiated the binding process of creating regulations that do have notice and comment procedures to make them legally binding. So that happened, started in 2017 when the “Dear Colleague” letter was rescinded, and then they spent a couple of years trying to figure out what a binding regulation should look like and writing it, and then completed that in 2020.
Bob Zadek: Now, one observation with respect to FIRE’s great work in attacking a letter—and by the way, it’s rather strange to talk about rescinding a letter. I don’t even know what that means, to rescind a letter. A letter is not rescindable; it’s just a letter. But that shows how the letter was really a regulation dressed up as a letter. You don’t have to rescind a letter; you have to rescind a regulation. Okay, just an observation.
So we get to the golden era when due process to a substantial degree is restored to campuses around the country, at least on paper and in fact. Now, one factoid, if you will, Joe, if you can help the audience: all of this started because of the perception about the “rape culture”—we remember that phrase, we don’t hear it much anymore. There was a concern that on college campuses, there was rampant sexual harassment, rape in the extreme—in extreme cases—on college campuses. Now, tell us if you can what the facts were. Was there a rape epidemic on college campuses around the time of the letter? Did the letter have any effect upon that? And what about after the letter was rescinded? Now we’re back in the Trump-Betsy DeVos era. What is on the ground—what was going on in terms of statistics during the letter era and the post-letter era after FIRE was able to encourage Betsy DeVos and the Department of Education to rescind the letter?
Joe Cohn: Well, those are all very interesting questions. There were studies that claimed as many as one in five and then later as many as one in four students enrolled in institutions of higher education across the country would be subject to some form of sexual harassment and misconduct before they had graduated. Now, of course, that rolls everything together from rape into verbal harassment. But even more broadly than that, the terms defined in those studies were so broad that they could even include someone trying to attempt a goodnight kiss after a first date.
And it was based on those numbers that you see advocates claiming that it’s particularly rampant on college campuses. Now, the Department of Justice, using much narrower definitions, found that the incidence and rates of sexual violence on college campuses were actually a bit lower on college campuses than they were with women of similar demographics off of campus. And it was well under 2%.
Now, I’m not a social scientist, so I’m not going to weigh in on trying to figure out whose methodology was more sound than the other. But what I will say is that to some degree, it’s a dog and pony show on the side because whether it’s frequent or it’s rare, I would hope that our policies would be focused on effectively addressing instances when they are brought to the school’s attention, but without cutting corners and sacrificing due process. For—so I want every student who feels like they’re a victim of sexual misconduct to know how to report it and how to get resources, even at 2:00 in the morning on Saturday if that’s when it happens. And I want the school to have adequate resources to respond to it properly. But then I don’t want to have a rush to judgment on the facts either because you don’t have to be put in this false dichotomy of choosing whether you support complainants or support accused students. You can support them both, and you should.
The Biden Administration’s Rollback of Due Process [43:10]
Bob Zadek: Now, we go—so we have the Betsy DeVos-Donald Trump presidency era, which adopts a more due process protective guidance—if you will, not guidance but regulations, the regulations themselves are protective of due process without, of course, compromising in any way the rights of the victim. There’s no suggestion the rights of the victim to be protected were diminished; they were not. All that happened was the rights of the accused caught up to civil society.
So to bring us to the current, which is what our audience is—must be made aware of today. So in this continuing saga, the next act is now we have the Biden administration, and now—and they inherit a situation where there are due process protections for the accused. No suggestion that the victim is more at risk or that women are more at risk—I’ve seen nothing that suggests that’s the concern. So things seem to be balanced—and I’m not asserting a statistical comment, just what I’ve observed from reading—things seem to be quiet and in balance. Bad guys and women are being punished, and everybody is protected.
So now we have the Biden administration, and now we have current events. So where are we today, and how does FIRE view the current circumstances and what are you doing if—to the extent that you’re unhappy with them?
Joe Cohn: Well, Bob, I agree with you on your conclusions that the Trump-era rules were fair and did set the right balance. We strongly supported them for that reason. But when they were issued, you saw people like Catherine Lhamon, who was the head of the Office for Civil Rights during the second half of the Obama administration, and then she was nominated to retake the helm of OCR under Biden—she immediately tweeted that the new regulations take us back to the bad old days where women could be raped with impunity. So there was the allegation that due process itself undermined fundamental ability for for complainants to come forward. I mean, I wholesale reject that argument, and I don’t think they have strong evidence to support it.
But it’s on that basis that the department—that President Biden on the campaign trail promised that he would make short order of the regulations and rescind them. And he, through Catherine Lhamon leading OCR again, started the process by rescinding them earlier this summer and offering new proposed regulations which strongly roll back a number of the protections that were put in place during the Trump era.
For example, you no longer have the right to have a live hearing to contest the charges. Now, when you lose a live hearing and you go to what’s called an “investigator model,” that’s one where an investigator interviews both parties or whoever else they want, they might turn over a summary of their conclusions to the other side and say, “Let me know if you think I got anything wrong.” You lose the ability to cross-examine people in real time, see how they actually answered things, because an investigator could miss the significance of a detail because they didn’t live through it, even if they’re trying to do it with integrity. So you lose the ability to cross-examine when you lose the right to a live hearing.
And the Trump administration regulations that we fought for gave students the right to see all of the evidence that was in the institution’s possession, not just the evidence that they planned on using. The distinction being that if you only need to turn over the evidence you plan on using, you can conceal exculpatory evidence because it doesn’t help the school make its own case. Well, they re-proposed—
Bob Zadek: And I should mention, just to remind the audience, that in a criminal trial, it is prosecutorial misconduct for the prosecutor who is seeking a conviction to withhold exculpatory evidence. Trials are set aside and convictions are reversed if that ever happens. So in our system of jurisprudence, for the prosecutor to withhold evidence is, to use non-legal words, a very big deal. And as Joe just explained, it’s de rigueur, it’s SOP (standard operating procedure) in these quasi-criminal proceedings done on college campuses. Sorry, Joe.
Joe Cohn: No, I think it underscores how something as simple as a change to turn over all of the evidence to turn over the evidence you plan on using has real consequences on the ground. And that’s part of the proposal. And so the audience understands what happens is once a regulation is offered, which has happened this time because they learned their lesson from last time and didn’t go the direction of guidance—they’re trying to do new binding regulations to replace the Trump-era ones—they offer it to public comment.
And we got a chance to point out all of the flaws that we saw in it, and our comment turned out to be 89 pages worth of mostly flaws, a couple things that we thought they did okay at. But we will have to wait several months until they release a final version. But we think that we’re hopeful that on things like that they’ll say, “Yeah, we can fix that problem.” But we’re not optimistic that they’ll fix the big picture ones. Give us the right to have a live hearing itself—it’s so crucial. Make sure that cross-examination is meaningful.
They also, in addition to allowing it to be done with investigations, greenlight schools using what’s called a “single investigator,” where it’s only one person serves all of the roles: investigator, judge, and jury. And the flaws of that are so obvious, and numerous courts have weighed in on how inappropriate that is and unconstitutional that is because of how easily it injects someone’s bias, whether conscious or subconscious, into the process. So the long and short of it is that there were so many ways that the proposed regulations undermine fundamental fairness that it was a bit alarming, because the standard really needs to be: how do we do right by all of the people who are involved?
The Importance of Protecting the Accused [46:50]
Bob Zadek: And what’s so interesting in all of this is that we always have learned in any discussion on how civil society should operate—we mention it a lot in free speech conversations—that there’s no need to protect the rights of people who are speaking with banality. It’s the rights of the most disfavored speech that has to be protected. That’s where we test whether we are sincere about free speech rights.
And here, it is the rights of the accused. There’s not a very strong lobby, more than there used to be, about accused people, about convicts, about defendants in criminal law cases. There’s a lot more than there used to be with the Innocence Project and the like. But in general, there are classes in our society which are held in disfavor—that’s one thing—but denied the rights that they are still entitled to. They haven’t surrendered those rights. And you are pointing out that there’s not much of a lobby for—it’s usually males, not always, but numerically much more males than females—that males accused of sexual harassment don’t have a very strong lobby in their favor.
And FIRE, while that is not your constituency, your constituency is the Constitution and the principles that regulate our country. But you are fighting a battle where, absent the work of FIRE, there’s nobody to do it. You’re the last line of defense just to preserve the due process rights that all of us are entitled to on college campuses.
Now, we only have a minute or two left before we do our closing. How active—this is a loaded question, of course—has FIRE been in guiding or in trying to guide the Biden Department of Education to get to the right place?
Joe Cohn: Well, we have engaged them in a number of ways. Immediately after the election, we have a history for each—after each presidential election—of writing a letter to the president on their inauguration day, introducing ourselves and highlighting some issues we want to bring to their attention. You can rest assured that overbroad sexual harassment definitions that threaten free speech were amongst the issues that we raised, as well as the rights of the accused. We met with officials in the Department of Education in the weeks that followed before a proposed regulation was offered to give some top-level general thoughts on why we think the current rules at that time, the 2020 rules, made sense, to talk to them about some of their criticisms of them. And then, of course, we submitted our formal comment, which as I said was a really in-detail piece going into a deep dive.
And of course, we do a lot of public speaking and articles and op-eds as well to make the case. I do want to say, because I’d be remiss to say, there are others who are doing the good work here. We’re really proud of the leadership we’ve played, the extent of our work, but a number of Harvard Law professors, for example, wrote instrumental pieces defending due process rights, as did a number of faculty members at University of Pennsylvania. Lara Bazelon, the professor who leads the racial justice clinic at University of California, Hastings, has just been instrumental here, as have a bunch of parents who formed organizations like FACE (Families Advocating for Campus Equality), parents who have had their families torn apart because of this, and other organizations as well, of course. But we’ve worked very hard to make sure that the due process arguments aren’t left by the wayside.
Bob Zadek: We’ve been speaking with Joe Cohn. Joe is the Director of FIRE’s Legislative and Policy Department. FIRE is the Foundation for Individual Rights—Individual—I always am tempted to say “in Education,” sorry about that, but it’s the old name. You can support FIRE at, I believe Joe, it is thefire.org. And Joe, how does our friends out there follow your writing? Where can they most easily follow what you’re up to these days?
Joe Cohn: Well, going to our website is the best place, www.thefire.org, but I’m also on Twitter, @JoeAtFIRE is my Twitter handle, and I look forward to hearing from and engaging with those of you tuning in. Thank you so much, Bob, for having me. It’s been a delight.
Bob Zadek: Joe, thank you so much for the work of your—for your work yourself and for the work of your organization. I love you guys and I love what you are doing. Thank you so much, and sincerely, keep up the good work, and hope a lot of my friends out there will find their way to support you. Thank you so much, and thank you to my friends for giving us an hour of your time. I hope you have found it to be worthwhile.