Campus Sex-Misconduct Hearings and the Due Process the 2011 Letter Removed

Universities are good at many things: seminars, research, football, raising money. Running a trial is not on the list. Yet for several years after 2011, American colleges were pressed to run something very like one, with a single administrator as detective, prosecutor and judge, and with a teenager's education and reputation on the line.

The subject is painful, and I want to treat it with the seriousness it deserves. Sexual assault is a grave crime. Victims deserve to be believed when they are telling the truth, and a campus that dismisses them has failed. A person accused of it also deserves a fair hearing, because a false finding wrecks a life, and an unfair process guarantees mistakes in both directions. The thesis of this post is that serious accusations deserve serious process for both the complainant and the accused, and that the 2011 federal guidance pushed colleges toward a system that gave neither side reason for confidence.

The terms

Title IX is the 1972 federal law that bars sex discrimination in any education programme that receives federal money. Its operative sentence runs, in summary, that no person shall be excluded from, denied the benefits of, or subjected to discrimination in a federally funded education programme on the basis of sex. Courts and agencies have read that to include sexual harassment and assault, which can deny a student equal access to education. Colleges therefore must have a way of handling such complaints. See Title IX Began as 37 Words in 1972, Here Is How It Grew Into a Rulebook for how the statute grew into a rulebook.

Due process means a fair procedure before a person is punished: notice of the charge, access to the evidence, a chance to respond, and an impartial decision-maker. The Fifth and Fourteenth Amendments guarantee it against the government, so public universities are bound by it directly. Private universities are not bound by the Constitution, but they promise fair process in their own handbooks, and courts enforce those promises as contracts.

Preponderance of the evidence is the standard of proof under which a claim is found true if it is more likely than not, a bar of just over fifty percent.

The 2011 letter

On April 4, 2011, the Education Department's Office for Civil Rights, led by Assistant Secretary Russlynn Ali, sent every college and school receiving federal funds a "Dear Colleague" letter on sexual violence. It was guidance, not a statute and not a regulation adopted through notice and comment, but it came with the threat of an enforcement investigation and the loss of federal money. Its main directions were these.

1. Use the preponderance standard. The letter said schools should decide these cases under the more-likely-than-not standard, and that a higher standard such as clear and convincing evidence did not meet Title IX's requirements. Many schools had used the higher standard before.
2. Discourage cross-examination. The letter discouraged schools from letting the parties personally question or cross-examine each other, on the ground that it could be traumatic or intimidating for the complainant. Many schools dropped live questioning altogether.
3. Resolve cases quickly. The letter recommended a limit of about sixty days, which many schools treated as a mandate and which put pressure on the thoroughness of the process.
4. Allow appeals by either side. Where the accused could appeal a finding, the letter said the complainant should be able to appeal an acquittal, a feature that looks odd to anyone raised on the principle that a man should not be tried twice for the same thing.
5. Discourage mediation in cases of sexual assault, even if the parties wanted it.

Think about what was being asked. Institutions that cannot always answer a registrar's email within a week were told to run fact-finding on the gravest allegations in the criminal code, on a deadline, without the rules of evidence, a trained judge or a jury. Many schools responded by adopting what became known as the single-investigator model. One trained administrator interviews the parties and witnesses, gathers the evidence, writes a report and makes the finding. No hearing takes place, and no one questions the complainant or the accused in front of the decision-maker. The accused sometimes saw only a summary of the evidence, and sometimes could not review the complete file.

The steelman for the 2011 approach

Let me state its best case in terms its defenders would accept.

Sexual assault is dramatically under-reported, and college students are a high-risk group. A trial-like hearing, with aggressive questioning, can retraumatise a victim and discourage others from coming forward. Campus discipline is not a criminal prosecution: its penalties are suspension or expulsion, not prison, and a lower standard of proof is consistent with civil proceedings generally. A prompt, victim-centred process lets a school separate the parties and protect a student quickly. Prior to 2011, many schools had treated these complaints casually, and survivors deserved better. The Office for Civil Rights had good reason to demand that schools act.

Much of that is correct. The preponderance standard is used in most civil litigation, and it is not outrageous. Schools had often failed complainants, and the complaint of under-reporting is serious.

The answer, in numbered points

Here is the argument that the 2011 approach, whatever its motives, was a poor way to find the truth.

1. The consequences are severe. A finding of sexual assault can end an education, follow a student onto every transcript and every job application, and brand a person for life. When the stakes are that high, the process must be accurate. A civil dispute over a fender-bender and a finding of rape belong in different procedural categories, even if the burden of proof is the same on paper.

1. A single investigator has no check. In the single-investigator model, the same person gathers evidence, judges credibility and decides. A system with no separation of functions invites error, because no one tests the investigator's assumptions. The framers of the Constitution built separation of powers around exactly this insight: do not let one actor be accuser, investigator and judge. Madison wrote in Federalist No. 47 that the accumulation of all powers "in the same hands" may justly be pronounced "the very definition of tyranny." A campus is not a republic, but the principle is a general one.

1. Cross-examination is how we test a story. The legal scholar John Henry Wigmore called it "the greatest legal engine ever invented for the discovery of truth," a line courts have quoted for a century. When the only evidence is one person's word against another's, the only way to find out which account is more likely true is to test both. That serves complainants as much as the accused: an account that survives a skilful examination is far more credible than one nobody has challenged.

1. A process that cannot be trusted fails complainants too. If findings can be overturned in court for lack of fairness, a real victim whose assailant was found responsible in a flawed proceeding may watch the finding vanish years later, on a technicality she did nothing to cause. Fair process protects the finding.

1. The two-way appeal is a warning sign. An accused person who is found not responsible, and then retried on appeal at the other side's request, is in a position that the legal tradition of double jeopardy exists to prevent. That tradition, in the Fifth Amendment, binds criminal courts, not campuses. But the logic is worth noting.

The courts push back: Doe v. Baum

As cases piled up, accused students sued, and the federal courts began to say that something had gone wrong. The best-known decision came in September 2018 from the Sixth Circuit Court of Appeals, in Doe v. Baum. The case arose at the University of Michigan, where a student was found responsible for sexual misconduct on the basis of a process in which the accuser's credibility was the whole question and the university did not hold a live hearing.

The court held that when a public university faces a credibility dispute and a serious sanction, due process requires a hearing at which the accused, through an agent such as an attorney, can cross-examine the accuser and witnesses in front of the decision-maker. The judges reasoned that without questioning, the factfinder cannot assess demeanour and the accused cannot probe inconsistencies. The decision did not require the accused to question the complainant personally, and it left room for the school to protect her from direct confrontation by letting a representative do the asking.

Other courts of appeals have not all agreed on how far to take it. The First Circuit, in a 2019 case involving the University of Massachusetts (Haidak), held that due process required some opportunity for real-time questioning, but that questioning through the hearing panel was enough, and the law varies by circuit. But the direction of the cases was unmistakable. Judges who spent their careers presiding over trials were not persuaded that a campus could dispense with the machinery the common law built to find facts.

The 2017 retreat and the 2020 rule

In September 2017 the Education Department withdrew the 2011 letter and issued interim guidance. Then it did something the 2011 letter had skipped: it went through formal rulemaking, with a proposed rule, a public comment period that drew an enormous volume of responses, and a final rule published in May 2020, effective in August 2020. A regulation adopted that way has the force of law and must be defended on a public record, which a letter is not.

The 2020 Title IX rule did several things worth noting.

1. It required postsecondary institutions to hold live hearings with cross-examination, conducted by each party's advisor, which could be an attorney. A party could not be forced to question the other directly.
2. It allowed remote hearings in which the parties are in separate rooms and see and hear one another by video, a protection the 2011 approach had claimed it was designing for.
3. It adopted rape shield protections: questions about a complainant's prior sexual behaviour are barred, with narrow exceptions.
4. It required separation of roles, so that the person who investigates cannot also decide.

The 2024 rule and the steelman about retraumatisation

In April 2024 the Education Department issued a new rule, effective in August 2024, that replaced the 2020 regulations. It allowed schools to opt out of the live hearing and the advisor-conducted cross-examination, and it widened the scope of sex discrimination the rule covers. A federal district court in Kentucky vacated the 2024 rule in January 2025, and the Education Department then said the 2020 rule is again in effect. Readers should check the Education Department's website for the current regulation, since this area keeps moving.

Let me answer the strongest objection to live hearings, because it is the best one. It says that making a victim sit through questioning is itself a harm, that hearings discourage reporting, and that a hearing's adversarial setting is a poor tool for a college.

That is a serious worry, and the answer comes in three parts. First, the 2020 rule contains its own protections: advisors ask the questions, parties can be in separate rooms, questions about a complainant's sexual history are barred and irrelevant questions are excluded by the decision-maker. These are design choices that exist because the problem was foreseen. Second, a process that is fair to the accused is not the opposite of one that is respectful of the complainant. A victim wants to be believed, and the surest way to be believed is to give her account in a process whose conclusions can be trusted. Third, the alternative is not "no trauma" but a different set of harms: a finding set aside by a court years later, a process the public distrusts and a climate in which the accused and the complainant are each told the system is stacked against them. No one benefits from that.

Where a school chooses to go beyond the minimum, offering support, no-contact orders, counselling and academic accommodations from the first day, it should. Those measures protect a complainant without requiring a verdict. Fair process and compassion are partners, not rivals.

The measure against the Founding

The Fifth Amendment says no person shall "be deprived of life, liberty, or property, without due process of law." The Sixth guarantees the accused in a criminal case the right "to be confronted with the witnesses against him." Neither applies by its own terms to a campus tribunal, and I do not claim it does. But the principles behind them did not appear from nowhere. They are the accumulated wisdom of a legal tradition that learned, painfully and over centuries, that accusations are not proof and that a fair hearing is the price of an accurate verdict. A university that proudly teaches the history of the Star Chamber should hesitate to run something that resembles it. See What the 2018 Kavanaugh Hearings Taught About the Presumption of Innocence for the broader point about the presumption of innocence, and Bias Response Teams and the Quiet Machinery of Campus Speech Policing for another case of campus administrators substituting their own machinery for the law's.

What parents and students can do

1. Read the school's policy before a problem arises. Every college must publish its procedure.
2. Know whether it is a public or private school. Public schools are bound by the Constitution; private schools by their own promises.
3. Ask whether the procedure includes a live hearing, an advisor and an impartial decision-maker, and who pays for training.
4. Remember that either party may need counsel. Neither side should face the process alone.
5. Treat a complaint that is also a crime as a crime. A person who has been assaulted may also report to the police, and the campus process is no substitute for the criminal law.

The case in brief

1. Serious accusations call for serious process for both the complainant and the accused, because accuracy protects everyone.
2. The 2011 Dear Colleague letter pushed colleges toward the preponderance standard, away from cross-examination and toward single-investigator systems that combined the roles of investigator and judge.
3. Cross-examination is the traditional way to test a credibility dispute, and in Doe v. Baum (6th Cir. 2018) the court held that due process at a public university requires it when credibility is central and the sanction is serious.
4. The 2020 Title IX rule, adopted through formal rulemaking, required live hearings with advisors, rape shield protections and separated roles, and the 2024 rule that dropped the hearing requirement was vacated in January 2025.
5. The retraumatisation worry is real, and the answer is protections within a fair process, not the abandonment of it.

What you can do: read your own college's or your child's college's sexual misconduct policy, and check whether it provides a live hearing, an impartial decision-maker and equal access to the evidence.