The “Transformative” Invention of Title IX Sex Tribunals

It was 2017 when K.C. Johnson made the request under the Freedom of Information Act for documents and emails relating to the origin of the 2011 Dear Colleague Letter that created the foundation for the campus peer-to-peer sex adjudication that has thus far launched more than 500 federal suits. It took five years, but K.C. finally received a response.

In 2017 I filed a request under the Freedom of Information Act seeking various OCR documents regarding the Dear Colleague letter’s origins. And finally — this August — the Education Department complied. I received 838 highly redacted pages. The department, for instance, redacted all contemporaneous talking points for the media blitz that Russlynn Ali, head of OCR at the time, undertook to promote the letter. It also redacted all draft versions of the guidance document and, incredibly, even a PDF of the Dear Colleague letter itself from OCR’s website. Nonetheless, significant chunks of material remained, and they enhance our understanding of this transformative policy change.

There are two major “takeaways” from the documents provided, to the extent they weren’t redacted because federal educational bureaucracy is nothing if not secretive in its methods. The first is that Russlyn Ali, then the head of the Office of Civil Rights in the Department of Education, essentially crafted the Dear Colleague Letter on her own, manufactured out of her own desire to create a system that was neither grounded in Title IX law nor the product of interest, involvement or collaboration by the stakeholders in higher education. She wanted to make this happen, so she did.

In 2011, the Department of Education’s Office for Civil Rights (OCR), in consultation with almost no stakeholders, released an explosive Dear Colleague letter. It outlined guidance on Title IX and sexual harassment, including peer sexual-misconduct allegations. The letter envisioned using only the “preponderance of the evidence” standard when adjudicating Title IX allegations, and allowing student complainants to appeal decisions if the accused student was found not responsible. The guidance also told colleges not to mediate sexual-assault allegations (even if both students wanted mediation), and “strongly” discouraged them from allowing cross-examination. It was a watershed event: the federal government instructing colleges to alter their adjudication procedures when handling sexual-assault allegations, and using the powers provided by Title IX to ensure that the institutions would comply.

The point was to create a system of campus adjudication that would overwhelmingly side with the “victims” of campus sexual assault, as defined by the victim, and preclude the accused from having the ability to challenge the accusation or defend himself from it. And it was very much about distinguish women as victims and men as the perpetrators, as reflected in the second “takeaway,” that this happened with the direct involvement and support of one high level member of the Obama administration, Vice President Joe Biden.

The newly released documents confirm Biden’s centrality to Title IX policy, rather than White House officials (whose sole appearance was to instruct OCR, late in the game, to brief a handful of congressional staffers) and Obama himself (who did not publicly discuss the issue until his second term). Lynn Rosenthal, a longtime Biden adviser, celebrated the Dear Colleague letter for “making history.”

Biden engaged with OCR throughout the Dear Colleague letter’s development and rollout. His office provided suggestions on multiple drafts of the guidance, at one point delaying issuance beyond a scheduled March 2011 release as OCR waited for feedback. OCR’s deputy assistant secretary for policy drafted Biden’s New Hampshire speech, which framed the guidance in explicitly gendered terms. The penultimate draft criticized colleges for often failing “to discipline the offender, leaving him free to do it again”; in the version as delivered, Biden championed a campus culture that would teach “all you guys in the audience, no matter what a girl does, [it’s …] never okay to touch her without her consent.”

When Biden ran for president in 2020, undoing the regulations (which, unlike the Dear Colleague Letter which was technically “mere” guidance back up by the threat of losing federal financing for noncompliance, are formal and require a period of public commentary pursuant to the Administrative Procedures Act), he expressly promised to get rid of the De Vos rules that addressed the massive due process failures as held by federal courts and return to the good old days of railroading male students.

Shortly after the document was issued, Brett A. Sokolow, founder of a company that sells training and adjudication services to colleges dealing with sexual-violence cases, told Ali that the Dear Colleague letter made him and his partners look “like prophets,” giving their advocacy work an “authority we could never have dreamed it would.” A little over a decade later, having watched colleges zealously implement Obama-era guidance, Sokolow conceded, “The problem of biased outcomes was real. Educational institutions railroaded those accused of sexual violence and harassment (mostly cisgender men) in numbers that should terrify any reasonable person.” That record accounted for more than 500 federal lawsuits filed by accused students since the Dear Colleague letter; the vast majority have alleged some form of gender discrimination under Title IX.

But as K.C. notes, the political environment today is somewhat different than it was back in 2011, when the media told only glowing stories of the new system that would save “survivors” from the ravages of rapists, essentially all of whom were men, and of those federal circuits that have been critical of a system designed from the outset to assure that male students had little chance of defending themselves and would almost certainly suffer harsh punishment for any accusation, true or not, proven or not.

In its desire to restore the policies of the past, however, the Biden administration might have overlooked the lessons of history. In 2011, federal pressure helped to produce — even if unintentionally — the type of one-sided campus outcomes that Judge Cabranes later identified, and which in turn stimulated more skeptical reactions to OCR policies in both the press and among courts. Reflecting the media and legal environments of the era, Ali and her advisers do not seem to have worried about this issue. It’s much harder to understand the current OCR’s indifference. The administration can no longer rely on celebratory journalism: Unlike 2011, OCR staffers will not need to go through 233 articles about the new regulations before finding any quotes from skeptical sources. And as the new regulations prompt institutions to remove existing procedural protections for accused students, a wave of litigation seems all but inevitable — before courts that, on the whole, seem much less deferential to colleges in Title IX matters than a decade ago.

While it’s certainly true that there are now many circuit rulings holding that the system created by Ali in 2011 and further perpetrated by Catherine Lhamon, whom Biden brought back to be OCR head in his administration, violated due process, there is no indication that either Lhamon or Biden has any intention to “reinvent” the system to be any more fair or lawful. It was created to railroad men and all indications are that it will do so again when Biden’s and Lhamon’s new regulations are revealed.