Different Rules for Different Parties

Some questions about Title IX enforcement on college campuses are tricky or, at least, require some thought.  Should accused students get the same rights as accused faculty and staff?  (Yes.) Should every school in the country have the same Title IX rules as every other?  (No.)

But other questions are no-brainers.  Here’s one:

Should the parties to a Title IX proceeding be treated equally?

The answer is obviously “Yes.”  Accused students should not get more favorable treatment than their accusers.  Nor vice versa.  The problem isn’t that schools don’t know the answer—it’s that often, they don’t care.  I can explain two examples, just from my own practice in the past year, where schools treated one and the same issue very differently depending on which side of the case it was going to affect.

In the first, our client was a student who had been accused by his longtime girlfriend, five months after they broke up, of various acts of misconduct over the course of their two-year relationship.  As it turns out, she had done to him almost everything she had accused him of doing—and he had done none of it.  So, when he was interviewed by the school’s investigator, he disclosed all the ways she had abused him during their relationship. When she was later interviewed by that same investigator, she admitted to the vast majority of it.  Under the school’s policies, that should have been enough for it to open a formal investigation into her because those policies explain that the school would investigate any acts of sexual misconduct no matter how it learned of them.  In this instance, the acts of sexual misconduct had, literally, been admitted to.

That kind of policy is really important to someone like our client because as the accused student in a case, where the investigator was the one who would decide his guilt or innocence, it was paramount that he not come across as vindictive, aggressive, or retaliatory in the eyes of the investigator.  Those kinds of impressions could (wrongly) make an investigator think that, maybe, he was the kind of aggressive person who would assault an individual.

So, when months went by after his ex-girlfriend had admitted to all of this misconduct, and no investigation was opened, we were hesitant to take the step of filing a formal counter-complaint.  Instead, I asked the school’s General Counsel’s Office why the school hadn’t opened an investigation on its own, given the complainant’s admission to its own investigator.  The school responded that despite the language in the policy, their practice was only to initiate charges when a student formally requested it.  So, after much deliberation, our client decided to take the step of filing a formal counter-complaint.

You can imagine the client’s surprise when his school initiated a new charge against him at the same time it opened an investigation into this counter-complaint.  When we asked the school why the complainant only now, months after her initial report, had filed a new charge, we were told she had not—the school had decided on its own, based on what it had uncovered in the investigation, to initiate this new charge.  It was as though the school had forgotten—or simply didn’t care—about what it had told us just weeks earlier.

Fortunately, that client was cleared of all charges against him, even at a school so intent on treating its accused students differently than their accusers.  The same, unfortunately, cannot be said for the second client.  In that case, the different treatment at issue did not involve the standards for initiating charges, but the school’s requirement that the parties keep the contents of sexual misconduct proceedings confidential.  That client’s accuser repeatedly broke those requirements going to national media outlets, and to organizations with which the client was connected, to inform them about her allegations, the Title IX proceeding, and a (highly selective) cut of the evidence being presented there.  When our client brought these matters to the school’s attention, and noted that the complaint was willfully violating confidentiality, the school did—absolutely nothing.

Despite that, our client steadfastly observed the confidentiality requirements asked of by the school for months, even while he was being publicly defamed.  Then, when the matter was over and he had been found responsible, he unwittingly disclosed, on a single occasion, certain information that the school had asked to be kept confidential. When he did so, the school immediately came down hard on him, threatening action against him because of this single violation, despite having sat silent for months while his accuser repeatedly did the same on a much larger scale.

Sometimes, it’s not enough for schools to know that they have to treat everyone fairly.  Sometimes they have to know that there will be consequences if they fail to do so.  As good as it is that the rights of accused students are starting to be taken seriously, all the procedures in the world won’t matter if schools don’t care about being fair.