Comment of a Concerned Member of the Public in Support of Fundamental Fairness for

All Parties in Title IX Grievance Proceedings

TITLE IX FAIRNESS REQUIRES DISCIPLINARY EXPUNGEMENT

Department of Education Notice of Proposed Rulemaking

Docket No. ED-2018-OCR-0064, RIN 1870–AA14

Nondiscrimination on the Basis of Sex in Education Programs or Activities

Receiving Federal Financial Assistance

Submitted January 20, 2019

Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
Raul.Jauregui@gmail.com
 TITLE IX FAIRNESS REQUIRES DISCIPLINARY EXPUNGEMENT

Draft Rules involved (emphasis added to the proposed expungement provisions):

§ 106.45 Grievance Procedures for formal complaints of sexual harassment.

(b)(1)(i) …an equitable resolution for a respondent must include due

process protections before AND AFTER any disciplinary actions are
imposed.
(b)(1)(iv) Include a presumption that the respondent is not responsible for
the alleged conduct until a determination regarding responsibility is made
at the conclusion of the grievance process OR ANY SUBSEQUENT
LITIGATION;
(b)(1)(vi) Describe the range of possible sanctions and remedies that the
recipient may implement following any determination of responsibility
INCLUDING EXPUNGMENT RIGHTS AND PROCEDURES.

Implementing respondents’ right to expunge the disciplinary record at the

educational institution safeguards due process and fairness under Title IX:

A. The Permanent Record Problem:

Juan and Jane, sophomore and junior respectively, are friends who end up in
Jane’s dorm room where they agree to teach each other kissing techniques. Sometime
later, Jane accuses Juan of untoward behavior during that meeting. Their private school
staff advises Jane to either sign her name to a Title IX violation against Juan, or to
complain against Juan based on the student handbook’s general civility provision. Jane
files a formal Title IX complaint invoking these Draft Rules. At this point, even if Jane
changes her mind and withdraws the complaint, or even if Juan is found not responsible
by the school or during litigation, Juan’s life is ruined because he has to disclose this
complaint—in terms Jane framed first—for the rest of his life. (1)

Some schools currently make sure that Jane’s complaint remains forever in Juan’s
disciplinary file. In fact, the American Association of Collegiate Registrars and
Admissions Officers (AACRAO) now advocates for this practice. (2) And Title IX law
is clearly moving towards requiring schools to maintain and disclose permanent records
not just of post-adjudication findings of guilt ―(1) a student who violated the institution's
rules or polices with respect to sex offenses,‖ but rather of all pre-adjudication complaints
against all respondents, no matter their merit, including respondents with pending charges
―(2) a student who is accused of sex offenses in a pending disciplinary proceeding.‖
Sadly, in this environment, exonerated respondents like Juan get a transcript note, forever,
which lumps them into a single group presumed to be comprised of all rapists. Citations
are from Congresswoman Speier’s Safe Transfer Act, HR 6523 (114th Cong.). (3).

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 These Draft Rules seek to restore to Title IX the fundamental due process tenet of
not punishing those who are exonerated. Thus, these Draft Rules must cure the current
system of permanent disciplinary notation because it debases respondents’ rights as Title
IX currently allows schools to assign damaging, permanent stigma at the point of
accusation, not at the point of adjudication or exoneration. The cure for this due process
flaw requires an expungement mechanism for exonerated respondents.

B. Not All Title IX Violations Should Remain on the Transcript:

Even though Juan was never accused of raping Jane, not to mention never being
found responsible for misconduct of any kind, he will still suffer many of the same
reputational and professional consequences as a respondent found responsible for rape.

First, should Juan wish to attend graduate school and obtain a license to become,
for example, a lawyer, even absent the codification for permanent complaint records in
HR 6523 (id), he will have to disclose that Jane charged him with this violation. (4)
Second, that disclosure could force Juan to self-incriminate voiding his 5th Amendment
right. Yet, should Juan fail to self-disclose the charge, that omission is grounds for his
expulsion from law school and for his suspension or bar from the practice of law. The
Law School Admissions Council (LSAC) rules make that negative outcome crystal clear.
(id). Third, law school admissions officers remain susceptible to read these complaint
self-disclosures as ―Juan raped Jane.‖ Fourth, several potential employers will request a
copy of Juan’s transcript and learn of the complaint. Fifth, the record of this complaint
will affect Juan’s future standing as a litigant becoming an aggravating circumstance.
Sixth, Juan’s and Juan’s family’s personal relationships and reputation will be prejudiced,
stained, and placed in a false light forever by the school’s permanent note.

C. Expungement Solves the Permanent Record Problem:

The solution to this gap in Title IX’s fairness and due process consists of writing
onto these Draft Rules the respondents’ right to expungement. Enshrining expungement
into Proposed Rule § 106.45(b)(1)(i), (iv) and (vi) furthers Title IX’s goal of due process
fairness to everyone and works in harmony with a schools’ ongoing duty of presuming
the respondents’ innocence. Most of all, expungement allows differentiation between
inexpugnable clear-cut cases of rape, and the rest of the complaints that can be made
against and defended by a respondent under Title IX.

Expungement would empower first time respondents of a Title IX complaint to

erase the records of that complaint. If successful, the respondents can avoid the kind of
lifetime sanctions that should be reserved only for the worst perpetrators. To that end,
even empowering exonerated respondents to state ―a complaint has been expunged‖
distinguishes them from serious violators, who would not be eligible for expungement.

Expungement matters even more today because Title IX respondents have had
their entire life, including their educational experience, documented on line and their
privacy, sold to advertisers and anyone else, has vanished. (5) The unexpunged records of

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exonerated respondents stain their lives, forever, on-line. (6) This reality violates the
very due process and fairness these Draft Rules seek to restore and demands a DOE rule
granting an expungement mechanism for every respondent in an educational institution.

For years after graduating from UCLA Law School I did not know about campus
rape, false accusations, Title IX, the Clery Act, or VAWA. But while I have been in
those trenches since that crisis came to the limelight, this personal concern over the Draft
Rules reflects the fair protection I want from Title IX if I go back to school. Thus, none
of this comment constitutes law practice, opinion of law, or a legal advertisement. (7).

Thanks for your kind attention.

/s/
Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
Raul.Jauregui@gmail.com

ENDNOTES:

1. These recent, reverse-Title IX lawsuits suggest that each of these respondents

needed a DOE-ruled procedural right to seek the expungement of their
disciplinary record to redeem their life. Each of these respondents swore to a
federal court that the school’s Title IX process had discriminated against them
with gender bias. Each of these respondents claimed that the school’s gender
bias against them yielded either erroneous outcome in finding a violation
and/or the selective enforcement of the violation enforcing apparatus. See
Yusuf v. Vassar College, 35 F3d 709 (2d Cir. 1994). If that claim is plausible,
so should be their right to erase the gender-biased permanent transcript note.
Further, expungement would have eliminated a significant component of each
of these respondents’ future damages, it would have improved their lives
remarkably, and it would have cost the school nothing. See, e.g., :

Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018);

Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017);
Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016);
Rossley v. Drake Univ., No. 4:16-cv-00623 (S.D. Iowa Oct. 12, 2018);
Doe v. Univ. of So. Miss., No. 2:18-cv-00153 (S.D. Miss. Sept. 26, 2018);

3
Doe v. Syracuse Univ., 2018 U.S. Dist. LEXIS 157586 (N.D.N.Y. Sept. 16,
2018);
Doe v. Brown Univ., 2018 U.S. Dist. LEXIS 144967 (D.R.I. Aug. 27, 2018);
Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 141423 (M.D. Pa. Aug. 21,
2018);
Doe v. Geo. Wash. Univ., 2018 U.S. Dist. LEXIS 136882 (D.D.C. Aug. 14,
2018);
Rowles v. Curators of the Univ. of Miss., No. 2:17-cv-04250 (W.D. Mo. July
16, 2018);
Doe v. Univ. of Miss., 2018 U.S. Dist. LEXIS 123181 (S.D. Miss. July 14,
2018);
Doe v. Johnson & Wales Univ., No. 1:18-cv-00106 (D.R.I. May 14, 2018);
Doe v. DiStefano, 2018 U.S. Dist. LEXIS 76268 (D. Colo. May 7, 2018);
Werner v. Albright Coll., No. 5:17-cv-05402 (E.D. Pa. May 2, 2018);
Doe v. Ohio St. Univ., 2018 U.S. Dist. LEXIS 68364 (S.D. Ohio Apr. 24,
2018);
Roe v. Adams-Gaston, No. 2:17-cv-00945 (S.D. Ohio Apr. 17, 2018);
Elmore v. Bellarmine Univ., 2018 U.S. Dist. LEXIS 52564 (W.D. Ky. Mar.
29, 2018);
Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 (D. Or. Mar. 26, 2018);
Doe v. Marymount Univ., 297 F. Supp. 3d 573 (E.D. Va. 2018);
Schaumleffel v. Muskingum Univ., 2018 U.S. Dist. LEXIS 36350 (S.D. Ohio
Mar. 6, 2018);
Gischel v. Univ. of Cincinnati, 302 F. Supp. 3d 961 (S.D. Ohio 2018);
Powell v. St. Joseph’s Univ., 2018 U.S. Dist. LEXIS 27145 (E.D. Pa.
February 16, 2018);
Doe v. Rider Univ., 2018 U.S. Dist. LEXIS 7592 (D.N.J. Jan. 17, 2018);
Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS 3184 (M.D. Pa. Jan. 8, 2018);
Painter v. Adams, 2017 U.S. Dist. LEXIS 171565 (W.D.N.C. Oct. 17, 2017);
Doe v. Univ. of Chicago, 2017 U.S. Dist. LEXIS 153355 (N.D. Ill. Sept. 20,
2017);
Rolph v. Hobart & William Smith Colls., 271 F. Supp. 3d 386 (W.D.N.Y.
Sept. 20, 2017);
Doe v. Case Western Reserve Univ., 2017 U.S. Dist. LEXIS 142002 (N.D.
Ohio Sept. 1, 2017);
Doe v. Trs. of the Univ. of Pa., 270 F. Supp. 3d 799, 817 (E.D. Pa. 2017);
Gulyas v. Appalachian St. Univ., 2017 U.S. Dist. LEXIS 137868 (W.D.N.C.
Aug. 28, 2017);
Nokes v. Miami Univ., 2017 U.S. Dist. LEXIS 136880 (S.D. Ohio Aug. 25,
2017);
Mancini v. Rollins Coll., 2017 U.S. Dist. LEXIS 113160 (M.D. Fl. July 20,
2017);
Tsuruta v. Augustana Univ., No. 4:15-cv-04150 (D.S.D. June 16, 2017);
Doe v. Univ. of Notre Dame, 2017 U.S. Dist. LEXIS 69645 (N.D. Ind. May 8,
2017);
Doe v. Williams Coll., No. 3:16-cv-30184 (D. Mass. Apr. 28, 2017);

4
 Doe v. Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017);
Doe v. Ohio St. Univ., 239 F. Supp. 3d 1048 (S.D. Ohio 2017);
Neal v. Colo. St. Univ. – Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo. Feb.
16, 2017);
Doe v. Lynn Univ., 2017 U.S. Dist. LEXIS 7528 (S.D. Fl. Jan. 19, 2017);
Doe v. W. New England Univ., 228 F. Supp. 3d 154 (D. Mass. 2017);
Doe v. Alger, 228 F. Supp. 3d 713 (W.D. Va. 2016);
Collick v. William Paterson Univ., 2016 U.S. Dist. LEXIS 160359 (D.N.J.
Nov. 17, 2016);
Doe v. Brown Univ., 210 F. Supp. 3d 310 (D.R.I. Sept. 28, 2016);
Ritter v. Okla. City Univ., 2016 U.S. Dist. LEXIS 95813 (W.D. Okla. July 22,
2016);
Doe v. Weill Cornell Med. Coll. of Cornell Univ., No. 1:16-cv-03531
(S.D.N.Y. May 20, 2016);
Doe v. Bd. of Regents of the Univ. Sys. Of Ga., No. 15-cv-04079 (N.D. Ga.
April 19, 2016);
Doe v. George Mason Univ., No. 1:15-cv-00209 (E.D. Va. Feb. 25, 2016);
Prasad v. Cornell Univ., 2016 U.S. Dist. LEXIS 161297 (N.D.N.Y. Feb. 24,
2016);
Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016);
Doe v. Brown Univ., 166 F. Supp. 3d 177 (D.R.I. 2016);
Marshall v. Indiana Univ., 170 F. Supp. 3d 1201 (S.D. Ind. 2016);
Doe v. Pa. St. Univ., No. 4:15-cv-02072 (M.D. Pa. Oct. 28, 2015);
Sterrett v. Cowan, 2015 U.S. Dist. LEXIS 181951 (E.D. Mich. Sept. 30, 2015);
Doe v. Middlebury Coll., 2015 U.S. Dist. LEXIS 124540 (D. Vt. Sept. 16,
2015);
Doe v. Salisbury Univ., 123 F. Supp. 3d 748 (D. Md. August 21, 2015);
Doe v. Washington and Lee Univ., 2015 U.S. Dist. LEXIS 102426 (W.D. Va.
Aug. 5, 2015);
Tanyi v. Appalachian St. Univ., 2015 U.S. Dist. LEXIS 95577 (W.D.N.C.
July 22, 2015);
Doe v. Salisbury Univ., 107 F. Supp. 3d 481 (D. Md. 2015);
King v. DePauw Univ., 2014 U.S. Dist. LEXIS 117075 (S.D. Ind. August 22,
2014);
Benning v. Corp. of Marlboro Coll., 2014 U.S. Dist. LEXIS 107013 (D. Vt.
Aug. 5, 2014);
Harris v. St. Joseph’s Univ., 2014 U.S. Dist. LEXIS 65452 (E.D. Pa. May 13,
2014);
Wells v. Xavier Univ., 7 F. Supp. 3d 746 (S.D. Ohio 2014);

2. The AACRAO current best practice forgets that school driven Title IX
disciplinary systems are not perfect and does not consider the due process and
fairness rights of respondents, particularly of those who are in possession of
enough evidence of gender bias from the school, leading to erroneous
outcomes and/or selective enforcement. See, e.g., AACRAO, Student Conduct
Administration & Transcript Notation: Issues and Practices, available at:

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 https://www.theasca.org/files/Best%20Practices/Transcript%20Notation%20-
%20Final%20Report.pdf

3. The full text of congresswoman Speier’s proposed Title IX record keeping

requirement reads:

H.R.6523 - Safe Transfer Act, 114th Congress (2015-2016)

Safe Transfer Act
This bill amends the Family Educational Rights and Privacy Act of 1974
by prohibiting federal funds for any institution of postsecondary education
that fails to disclose to other institutions information related to campus sexual
assault on the transcript of:
(1) a student who violated the institution's rules or polices with respect to
sex offenses, or
(2) a student who is accused of sex offenses in a pending disciplinary
proceeding.
The disclosure requirement terminates five years after a disciplinary
proceeding is completed, or one year after the initiation of a proceeding if it is
still pending.
The student who is subject to the disciplinary proceeding must be notified
of the disclosure and be allowed to inspect and copy the disciplinary
proceeding, which does not include the name of any other student, such as a
victim or witness. The student must also be given the opportunity to write a
statement to accompany the disclosure.

It is important to point out that to the extent that a student is determined to

constitute a real threat, nothing prevents an institution from communicating
actionable information to another institutions where the student intends to
enroll or is already enrolled [34 CFR 99.31(a)(2)]. Yet, at no point does the
text of H.R. 6523 consider the unfairness of its provision to the respondents
who may be found not responsible. Under this bill, not-responsible
respondents would still be subject to a lifetime of reporting a complaint that
they are not responsible for.

4. LSAC’s position presents a model for the universe of post graduate education
as well as licensure applications because it uses broad legal ethical discipline
standards. LSAC’s legal ethical discipline requires self-disclosure of anything,
including meritless Title IX complaints, even in the event of non-responsible
findings. Intent is irrelevant to the applicant’s failure to disclose. See, e.g., :

―Misconduct or Irregularity is the submission, as part of the law school

admission process, including but not limited to regular, transfer, LLM, and
visiting applications, of any information that is false, inconsistent, or
misleading; or the omission of information that may result in a false or
misleading conclusion; or the violation of any law or regulation involving the

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 law school admission process, including violations of LSAT test center
regulations. Intent is not an element of a finding of misconduct or irregularity‖

See, ―LSAC Rules Governing Misconduct and Irregularities in the Admission

Process‖ available at:

https://www.lsac.org/applying-law-school/misconduct-irregularities

The unavailability of expungement as a Title IX remedy heightens the very

real threat that unwitting undergraduate respondents to Title IX violations (for
which they were not found responsible) have of being denied admission to law
school, or of losing points for competitive law school admission evaluation
purposes, if they do not disclose the complaint itself:

―Examples of misconduct and irregularities include, but are not limited to

doing or attempting to do the following: submission of an altered or a
nonauthentic transcript; submission of an application containing false,
inconsistent, or misleading information; … submission of false, inconsistent,
or misleading information to the Credential Assembly Service (CAS);
submission of false, inconsistent, or misleading statements or omissions of
information requested in the LSAT/CAS registration process or on individual
law school application forms; …‖ (id).

The unavailability of expungement as a Title IX remedy could actually result

in serious attorney ethical discipline for the exonerated respondent including
being denied admission to the bar, being disciplined by the bar, or being
suspended from the practice of law:

―A charge of misconduct or irregularity may be made prior to a candidate’s

admission to law school, after matriculation at a law school, or after admission
to practice.‖ (id).

LSAC’s exacting ethical discipline position may well eventually migrate to

application apparatus for other graduate programs.

5. See, Elise Young, EDUCATIONAL PRIVACY IN THE ONLINE

CLASSROOM: FERPA, MOOCS, AND THE BIG DATA CONUNDRUM,
Harvard Journal of Law & Technology Volume 28, Number 2 Spring 2015,
available at:

http://jolt.law.harvard.edu/articles/pdf/v28/28HarvJLTech549.pdf.

6. See, e.g., In re Google Inc. Gmail Litig., No. 13-MD-02430, 2014 WL

1102660, at *1–*3 (N.D. Cal. Mar. 18, 2014) (describing Google Apps
services for educational institutions, including student email services, and

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 plaintiffs’ allegations that Google processed student email content and
metadata to create secret user profiles).

7. While this is my personal concern on how to perfect the justice of Title IX’s
Proposed Rules, the suggestion in this comment meets the Office of Management
and Budget’s guidelines on regulatory analysis. First, the need for the school to
expunge passes cost-benefit analysis because the current alternative—no
expungement including of the complaint—risks expensive stigma for all
participants, forever, and marks the respondent (even if found innocent in a court
of law) as a potential rapist. Second, the need for the school to expunge also
passes threshold analysis because the expungement expenditure is minimal as it
requires deletion of an often single line notation that the school’s registrar
electronically enters into the respondent’s disciplinary file. See, e.g., Office of
Management and Budget, Circular A-4 of September 17, 2003, available at:

https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf