The stakes are extremely high when a college student is charged with allegations of sexual misconduct under Title IX legislation, a federal statute that prohibits sex discrimination at colleges and universities that receive federal funding.  Students often ask, "Can my school do this to me?"  Parents often ask, "How can my son's or daughter's school be doing this when we are paying good money for their education?"

The "Dear Colleague" Letter

To accused students' and their parents' dismay, colleges and universities in New Jersey and nationwide can take disciplinary action when allegations of sexual misconduct are made against students.  Federal Title IX legislation is the law that allows such disciplinary action to take place.  In recent years, colleges and universities have become much more aggressive in pursuing allegations of sexual misconduct.  One reason is the active involvement of the Department of Education's Office of Civil Rights (DOE-OCR) in Title IX campus disciplinary proceedings. 

In 2011, the DOE-OCR issued a "Dear Colleague" letter which strongly "encouraged" schools to adopt more aggressive disciplinary procedures.  If schools declined to do so, they would risk losing significant federal funding.  With so much money  at stake, schools, that had previously afforded accused students more due process and a more equitable disciplinary model, were compelled to make changes that lessened accused students' rights.  Although these changes were made under the pretext that the the updated disciplinary model was more equitable to both complainants and accused students, these changes were often at the expense of accused students' rights and also basic procedural safeguards intended to ensure a fair disciplinary process.  Some contend that the Dear Colleague letter defines females as the victims in Title IX cases, and therefore makes it difficult for male respondents to defend themselves in Title IX investigations and disciplinary proceedings.

Recent Title IX Pushback

Combating campus sexual misconduct and sexual assault is of course a laudable endeavor, but in an effort to comply with the DOE-OCR's recommendations, many innocent accused students have been the victims of these changes over the past several years.  There has been recent pushback however.  In the matter docketed as Doe v. Brandeis University, No. 15-11557-FDS, a federal district court ordered that a Brandeis University student who was accused and found responsible for sexual misconduct could proceed with his legal challenge to the University's disciplinary process on basic fairness grounds. 

The federal court, in reviewing the student's complaint against the University and how the Title IX disciplinary process was mishandled, concluded that the University "denied [the student] the ‘basic fairness' to which he was entitled.”  The court added that the issues that were raised in the University's handling of the Title IX allegations were "not unique" and "not confined to a single campus."  The court's recognition of this unfortunate reality is a testament to the arguable fact that the Title IX disciplinary pendulum has swung too far in the wrong direction; again, at the expense of accused students' due process and procedural safeguards. 

Should one innocent accused student be found responsible for sexual misconduct or sexual assault in an effort to reduce these issues on college and university campuses?  Or should the basic liberties that this country was founded on be afforded to accused students in the campus disciplinary setting (albeit it with certain limitations in light of the fact that the campus discipline setting is not a criminal courtroom)?

A Federal Judge's Warning

The federal judge did not answer these questions, but warned that colleges and universities should exercise caution in reducing the due process protections afforded to students accused of sexual misconduct, and in relying on the Dear Colleague Letter as a justification for doing so.  Time well tell how legal action against schools for not ensuring that accused students' rights are protected will play out.  Although many past legal challenges to Title IX have been unsuccessful when it was argued that male accused students were discriminated against because of Title IX mandates, some success has been achieved under breach of contract and related claims.