Students and parents often do not recognize the severe, long-term consequences that a Title IX sexual misconduct finding can have on an accused students' academic career and future employment opportunities. Being expelled or suspended from school is only the beginning of the aftermath that will most likely result from a negative finding; such a funding can also negatively impact an accused student for the rest of their life. That is why the stakes are so high, and not just in New Jersey and Pennsylvania, but nationwide.
Many question whether colleges and universities are the appropriate forum to investigate and discipline students for alleged violations of sexual misconduct or sexual assault. Under Title IX of the Education Amendments of 1972, in part, any school that receives federal funding cannot discriminate on the basis of gender. As colleges and universities have made efforts to remain compliant with Title IX mandates, whatever due process was afforded to accused students of an earlier era has arguably been abandoned.
In recent years, Title IX mandates have become more pronounced. In a 2011 letter from the U.S. Department of Education's Office for Civil Rights, colleges and universities were instructed to include sexual violence among prohibited Title IX offenses and to use the "preponderance of the evidence" standard in school disciplinary cases involving allegations of sexual misconduct or sexual assault brought under Title IX requirements. The "preponderance of the evidence" standard is based on whether an act is more likely than not to have occurred. Whereas some schools that received federal funding under Title IX prior to the 2011 enactment used the "clear and convincing" evidentiary standard, these schools were thereafter required to use the "preponderance of the evidence" standard. In contrast to the "preponderance of the evidence" standard, the "clear and convincing" standard requires a higher probability that the sexual misconduct or sexual assault occurred; a reasonable certainty.
Many believe that the "preponderance of the evidence" standard as required under Title IX is too low in light of what is at stake for an accused student. For example, if the same allegations were heard in criminal court, the standard of proof required in order to find against the accused would be "proof beyond a reasonable doubt" - the highest possible standard. The question that arises is whether the standard of proof in Title IX campus sexual misconduct cases should be so vastly different in light of the fact that accused students are prospectively subject to severe, long-term consequences if found responsible for campus sexual misconduct; albeit consequences different in nature than in criminal court, but arguably as prospectively adverse to accused students' interests.
Concerns also exist regarding the procedures colleges and universities either are required to use under Title IX, or choose to use on their own. For example, some schools do not allow accused students to directly questions their accusers in sexual misconduct disciplinary proceedings; at times, the accuser will request confidentiality, and the accuser's identity will not be shared with the accused student; and due to delay, for whatever reason, before the accuser comes forward, some sexual misconduct campus disciplinary cases are not heard until a significant amount of time has passed between the alleged act(s) and the hearing itself.
Money is at stake, and colleges and universities are under pressure to make sure that they remain compliant with investigating, and arguably prosecuting allegations of campus sexual misconduct. As of December 2015, the Department of Education Office of Civil Rights was investigating 95 open cases against schools accused of mishandling Title IX claims, regarding both sexual misconduct and harassment. If a school is found to have mishandled the Title IX process, victims can be awarded monetary damages and the federal government can target schools as deemed necessary in an attempt to ensure future compliance. Although victims may often be thought of as the accuser, more accused students are pushing back against how their Title IX sexual misconduct cases were handled by their schools.
It is an interesting fact that more accused students are pushing back after being sanctioned by their schools for violating Title IX sexual misconduct policies, only for it to be later revealed that there were flaws in the disciplinary process or concerns regarding the allegations themselves. This push back is not only coming from accused students; after Harvard Law School was recently sanctioned by the Department of Education for being non-compliant with Title IX requirements, including the mandated "preponderance of the evidence" standard, 28 Harvard Law School professors signed a letter published in the Boston Globe to protest what the Department of Education forced upon Harvard Law School regarding how Title IX sexual misconduct cases must be handled at the school; contending that the mandates “lack the most basic elements of fairness and due process” and [are] “overwhelmingly stacked against the accused.” The professors may have a point.