Title IX and Other Campus Sexual Misconduct: Why Two Procedures When One Would Do?
New Title IX regulations went into effect this year on August 14th, requiring colleges to resolve sexual misconduct cases with additional safeguards for complainants and respondents alike. That should have been a win for everyone. However, some colleges have chosen not to apply the new procedures uniformly to all sexual misconduct cases—depriving some unlucky students of the right to a fair process.
The new regulations limit the scope of Title IX, creating a variety of scenarios whereby cases involving the same prohibited behavior could be resolved without the more equitable procedures. For example, at Harvard, an allegation of sexual assault in a school building requires a live hearing but, if it happens in a private residence unaffiliated with the school, a single investigator plays the role of judge and jury. At Princeton, a student involved in a Title IX investigation receives financial assistance for an attorney who will be able to cross-examine the opposing party, but, if it’s a non-Title IX case, there’s no monetary assistance and no live questioning allowed. And at Georgetown University, unless it’s a Title IX case, students are not guaranteed access to exculpatory evidence. There’s absolutely no pedagogical reason to treat these similarly situated students differently.
Regardless of fairness, this double standard is allowable because the new procedures are mandatory only in Title IX cases. Thus, if an incident or allegation does not meet the more stringent Title IX requirements, then schools may use different policies. Many schools have viewed this as an opportunity to retain their old procedures, running side-by-side processes for what will often be almost identical types of complaints. Schools can have two different processes for the same sexual misconduct that has the same potential disciplinary consequences, but which just happens to occur in different locations—in a dorm versus an off-campus apartment or while traveling as part of a school group in the United States versus abroad. But we all know, just because you can do something, that doesn’t make it right to do so.
There is a simple, legally prudent solution that some schools have taken. The Universities of Michigan and Colorado Boulder both created a single sexual misconduct policy—inclusive of Title IX and non-Title IX cases. Under those policies, there is one procedure that applies to all cases. All complainants and respondents, regardless of where an incident occurs will be treated in the same manner—with the amount of process the government has decided is due in such cases to ensure equitable treatment and reliable outcomes. That’s what students and parents expect and deserve—a single process that respects everyone’s right to an education.
August 28, 2020