Daily Journal: A review of Sexual Justice by Alexandra Brodsky

May 19, 2022 | By ALISON SOMIN

During the Obama administration, the Department of Education’s Office for Civil Rights (OCR) made significant efforts to crack down on sexual misconduct on college campuses, pursuant to its power to enforce Title IX of the Education Amendments of 1972, which prohibits sex discrimination by federal funding recipients. OCR issued guidance (the “2014 Guidance”) requiring universities to follow specific procedures when investigating and adjudicating sexual misconduct allegations.

Critics raised a variety of objections, among the most important of which was that the 2014 guidance required or encouraged schools to adopt procedures that denied accused students due process of law. The Trump administration responded by enacting rules intended to safeguard students’ due process of law rights. But the Biden administration looks poised to overturn the safeguards.

So a new book titled Sexual Justice – billed as a “pathbreaking work for the next stage of the #MeToo movement,” in which lawyer Alexandra Brodsky wrestles with arguments about due process deficits in sexual misconduct proceedings – is timely.

Though labels are inherently imperfect, Brodsky is known primarily for being part of a movement that has sometimes prioritized sexual misconduct victims’ admittedly important rights over those of the accused. Though I disagree with significant passages of this book – more details below – it is striking to observe Brodsky is careful to take due process for the accused seriously. Sexual Justice takes due process of law more seriously, at least in my view, than nearly anyone on Brodsky’s general side of the debate would have as recently as 2014.

The core principle of due process of law is that it is fundamentally wrong for the government to deprive an individual of life, liberty, or property unless it can prove, by a fair process, that the individual has done something unlawful. Moreover, what constitutes a fair process sufficient to attach serious penalties or other consequences was developed over hundreds of years and includes certain objective procedures that must be afforded to the accused.

These due process of law principles are traceable to at least 1215, when a group of English barons rebelled against King John’s abuses. The Magna Carta – “Great Charter” – ended the rebellion by guaranteeing certain basic liberties. Its Clause 39 has been recognized as the most important predecessor of modern due process doctrine, providing that “no free-man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Because of Edward Coke and others, the phrase “law of the land” became synonymous with “due process of law.”

For most of its history, “due process” was purely a legal concept. It is nonetheless sometimes used informally to refer to the general norms of fairness that require hearing all sides of a story, even when no legal process is required. Scholars Aaron Nielson and Kristin Hickman have distinguished between “Due Process” (for the legal concept) versus “due process” (general fairness norm.) As Sexual Justice notes in multiple places, this distinction gets particularly murky in sexual assault matters when “due process” is frequently applied to calls for fairness by the news media or the general public, or in other situations where legal rules don’t apply. Sexual Justice uses the term “fair process” for fairness requirements in such contexts.

Many of us are most familiar with the guarantees of due process of law that apply to criminal trials. There, the potential for deprivations of liberty or even life makes the need for due process especially serious. As Sexual Justice succinctly puts it: “The more we threaten to take away from someone, the more protections you should put into place.” But constitutional due process of law also applies in civil trials – and to potential deprivations of liberty by administrative agencies in the executive branch. Due process of law requirements are lower when criminal charges are not on the table, but procedural fairness remains important any time the government seeks to deprive someone of liberty or property.

In our public interest legal practice at Pacific Legal Foundation, we most commonly see due process deficits in how administrative agencies treat our clients in proceedings before the agencies. We tell some of our clients’ stories and recommend solutions in this report.

The controversy about the Department of Education’s guidance is somewhat different in that the due process deficits were not occurring in proceedings directly before the federal agency. Rather, the Department of Education promulgated guidance telling schools that they risked losing their federal funding unless they adopted one-sided procedures in deciding sexual misconduct matters.

Sexual Justice recommends general principles of due process that organizations should follow in adjudicating accusations of sexual misconduct. Rules should be clear and understandable. The accused should be informed of the allegation. All parties should be told how the process will work. Each party should be given the opportunity to tell his or her side of the story and allowed to ask questions of the other. The complainant should bear the burden of proving the allegation, rather than the accused of disproving it. An unbiased decision-maker should render decisions. These sensible recommendations overlap significantly with the principles of due process of law laid out in the PLF report.

Unfortunately, these basic principles were often not followed while the 2014 Guidance was in effect. Sexual Justice goes into detail recounting the due process deficits in the handling of two students’ cases. One, “Ryan,” wasn’t allowed to contest an interim suspension. He showed up to what he thought was a preliminary discussion about his situation with administrators that was in fact a formal disciplinary hearing. At that hearing, he was presented with a formal “incident report” that reflected neither his input nor his understanding of the facts.

Elsewhere, at a junior college in California, “Brandon” was never assigned an advisor to help him navigate disciplinary proceedings. He never had a live hearing and had to come up with a written statement on his own. Brodsky read the investigator’s report and was “genuinely shocked by its lack of detail and analysis.” Brandon eventually hired a lawyer, who succeeded in getting his school to drop the complaint but only after prolonged struggle and expense that Brandon was ill-equipped to handle.

Sexual Justice also offers limited criticism of the “believe all women” slogan that has become popular in many Title IX offices. Brodsky describes reviewing a policy guide issued by a well-established anti-sexual violence nonprofit meant as a Title IX resource for college administrators. It listed the phrase “believe survivors” as a policy principle. While Brodsky agreed that it could be interpreted to mean that schools should avoid presuming bad faith and should show empathy toward students making accusations, she expressed concern that “believe survivors” could be reasonably interpreted to mean that “a school should abandon its appropriate neutral role and presume the truth of every claim.” Perhaps tellingly, the nonprofit rejected her proposed edits.

Despite these heartening concessions, Sexual Justice’s treatment of due process of law has significant flaws. For example, it downplays the significance of the 2014 Guidance’s requirement that schools use a lower standard of evidence to prove sexual misconduct than many did before 2014. The 2014 Guidance strongly encouraged schools to use the preponderance of the evidence standard, usually understood to be a less demanding standard for proving an accusation than the clear and convincing evidence standard.

Contrary to what Sexual Justice states, according to Ada Meloy of the American Council of Education, before 2014, more colleges used the clear and convincing standard than the preponderance of the evidence standard. Nowhere in Title IX’s text or earlier Education Department regulations can such a requirement be found. Given the importance of safeguarding accused students’ rights, the “clear and convincing” standard seems more appropriate in at least some situations. If the media characterized mandatory preponderance of evidence standards as a “special kind of torture device,” as Sexual Justice says, I agree that it would be an unfair exaggeration. But it would also be wrong to suggest that the mandatory preponderance of evidence requirement did not unfairly or unlawfully burden some accused students.

Sexual Justice also, unfortunately, glosses over due process problems with the 2014 Guidance’s approach to cross-examination. It laments how frequently the media were wrong in reporting that the Department of Education had “forbidden” schools from allowing cross-examination. While it is true that the 2014 Guidance didn’t prohibit cross-examination, it did “strongly discourage” it because “allowing an alleged perpetrator to question a complainant directly may be traumatic or intimidating, and may perpetuate a hostile environment.”

Given institutions’ understandable fear of prolonged investigations threatening the loss of massive federal funding or direct lawsuits for not following the 2014 Guidance, this distinction between “forbidden” and “strongly discouraged” made little practical difference. How many college administrators would feel free to do what is “strongly discourage[d]” by the federal officials who fund their offices? Further, a federal district court has held that cross-examination is constitutionally required on due process grounds when an accuser’s credibility is an important issue in a disciplinary proceeding.

The 2014 Guidance did say that it “may” be acceptable for both parties to submit lists of questions to a neutral questioner. Still, that approach prevents spontaneous follow-up questioning that may be useful in determining the truth of an allegation.

While not central to Sexual Justice’s main arguments, it also contains a questionable attempt to discredit some of the 2014 Guidance’s most prominent conservative and libertarian critics for criticizing Department of Education school discipline guidance. Principled opposition to both guidance documents is a better explanation for the position of many critics that Brodsky attributes to hypocrisy. For example, no serious critic of the school discipline guidance opposed it out of general opposition to due process in student discipline. Rather, as I have discussed extensively elsewhere, that school discipline guidance went beyond the department’s statutory authority to prohibit race discrimination. One can sincerely and logically oppose the Title IX guidance for its due process deficits while opposing the K-12 school discipline guidance as well for other reasons.

Sexual Justice’s better passages about due process of law may be attributable to changes in the legal environment since 2014. A National Association of Scholars report counted more than 600 lawsuits filed by accused students challenging school proceedings for due process deficits. Multiple circuit court decisions – notably one written by Justice Amy Coney Barrett when she was still a Seventh Circuit judge – safeguard accused students’ due process rights. Catherine Lhamon, the assistant secretary for Civil Rights who issued the 2014 Guidance, sailed through Senate confirmation on a unanimous voice vote in 2013. When renominated to the same position in 2021, she faced tough questions about her views on due process of law in sexual misconduct proceedings. In an indication of the changed policy environment, she was narrowly confirmed on a party-line vote, with Vice President Kamala Harris casting a tiebreaker vote. This altered environment reflects the careful and persistent advocacy of a pro-due-process-of-law cross-ideological coalition of advocates.

Notwithstanding these successes, debates about how the Department of Education should respond to sexual misconduct remain alive. President Joe Biden has issued an executive order instructing the Department of Education to review Trump-era rules safeguarding due process, and given Biden’s campaign promises to issue tougher Title IX sexual misconduct rules, that review’s outcome is almost certain. While Sexual Justice suggests growing regard for due process of law among advocates for victims of sexual misconduct, its flaws alas indicate ground still to be gained.

This op-ed was originally published by Daily Journal on May 19, 2022.