Don’t Pay Attention to the Label—Title IX Disciplinary Proceedings Are Not Educational

Colleges generally refer to their Title IX disciplinary proceedings as an “educational process.”  Sadly, there is nothing educational for the students involved.  Colleges use the term because it provides a safe harbor from judicial interference.  Such deference is deserved when colleges are determining if degree requirements have been met or interpreting a cheating policy, realms where colleges know best.  However, Title IX disciplinary matters are entirely different in terms of the severity of accusations, essentially violent crimes, and the consequences which can include life-long reputational and educational deprivations for the accused.

Nonetheless, colleges cling to the “educational process” label in order to fend off legal challenges.  The University of Arkansas is trying to do just that in the Eighth Circuit.  In Doe v. Univ. of Arkansas-Fayetteville, the school is defending its process that found a young man responsible for sexual assault because it was “educational” and thus deserving of “administrative discretion and judicial deference.”  Simultaneously, the school admits that mistakes will be made because “hearings are typically conducted by faculty and staff members of a school or university who have little experience with those matters” and the school does not “perform ‘flawless investigations’” while maintaining that it shouldn’t affect their right to administrative discretion.

Schools want to have it both ways—not be good at something and not be forced to answer for their mistakes.  That might be okay for a trivial accusation, but not for one as severe as sexual assault.

Thankfully, at least one judge has publicly been willing to debunk the issue.  In Doe v. Univ. of Notre Dame, after the school argued their process was “educational” as opposed to punitive, the judge responded, “Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”  With the pretense lifted, courts can scrutinize campus proceedings and, in return, colleges will be compelled to improve.

Let’s hope more judges challenge the “educational process” label.

January 31, 2020