Since April 2011, when the Obama administration used Title IX to create accuser-friendly procedures in campus sexual-assault adjudications, colleges and universities have been on the losing end of 117 state and federal court decisions in lawsuits filed by accused students.
As U.S. District Judge Matthew Brann noted in a ruling against Penn State, universities should have an interest in "Securing accurate resolutions of student complaints." In reality, amid the Obama administration's threat to withhold federal funds, pressure from campus and faculty accusers'-rights activists, and a belief that one-sided procedures were necessary to encourage more reporting of sexual-assault allegations, schools have gone beyond even the Obama administration's demands.
As a result, the proposed regulations would dramatically change how universities adjudicate sexual-misconduct complaints.
Universities would have to share all evidence compiled in the investigation with all parties; divulge the contents of training materials given to Title IX adjudicators; and consider exculpatory evidence, not just the narrative presented by the accuser.
While courts have grown increasingly skeptical about these unfair procedures, they have been more divided over another key area of debate: whether procedures structurally unfair to accused students can constitute gender discrimination under Title IX. An influential 2015 decision involving a Miami University student held that "Demonstrating that a university official is biased in favor of the alleged victims of sexual assault claims, and against the alleged perpetrators, is not the equivalent of demonstrating bias against male students." Several decisions in 2018 have suggested otherwise.
On this point, the proposed regulations are clear: a university can violate Title IX if it "Does not investigate and adjudicate using fair procedures before imposing discipline."
Ironically, universities' own intransigence has set the stage for adoption of regulations that will ensure a fairer system nationwide.
https://www.city-journal.org/proposed-title-ix-regulations
As U.S. District Judge Matthew Brann noted in a ruling against Penn State, universities should have an interest in "Securing accurate resolutions of student complaints." In reality, amid the Obama administration's threat to withhold federal funds, pressure from campus and faculty accusers'-rights activists, and a belief that one-sided procedures were necessary to encourage more reporting of sexual-assault allegations, schools have gone beyond even the Obama administration's demands.
As a result, the proposed regulations would dramatically change how universities adjudicate sexual-misconduct complaints.
Universities would have to share all evidence compiled in the investigation with all parties; divulge the contents of training materials given to Title IX adjudicators; and consider exculpatory evidence, not just the narrative presented by the accuser.
While courts have grown increasingly skeptical about these unfair procedures, they have been more divided over another key area of debate: whether procedures structurally unfair to accused students can constitute gender discrimination under Title IX. An influential 2015 decision involving a Miami University student held that "Demonstrating that a university official is biased in favor of the alleged victims of sexual assault claims, and against the alleged perpetrators, is not the equivalent of demonstrating bias against male students." Several decisions in 2018 have suggested otherwise.
On this point, the proposed regulations are clear: a university can violate Title IX if it "Does not investigate and adjudicate using fair procedures before imposing discipline."
Ironically, universities' own intransigence has set the stage for adoption of regulations that will ensure a fairer system nationwide.
https://www.city-journal.org/proposed-title-ix-regulations
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