In the recent past, three male college students made national news by suing their schools, all prestigious colleges and universities, after getting suspended or expelled as a result of being found responsible for alleged sexual misconduct and/or sexual assault. The three male students, as often is the case, claimed their sexual encounters with the three female students in question was consensual. The three female students claimed otherwise. Title IX sexual misconduct disciplinary charges were brought against the three male students under their respective schools' Title IX requirements regarding sexual misconduct cases. Title IX itself is legislation passed in 1972 that bans sex discrimination by schools receiving federal funding.
Some contend that because of Title IX requirements, there is undue pressure on colleges and universities by outside interests, including the federal government, to regard those accused of sexual misconduct as being presumed guilty. This would be in stark contrast to the protections afforded a criminal defendant accused of sexual offenses. Despite the incredible burdens that come with criminal charges, a criminal defendant is afforded the most basic protection of being presumed innocent.
Students, usually male, but not always, are now asserting that the Title IX disciplinary process used by most colleges and universities is one-sided, and at most basic level, unfair to those accused. In some cases, male students are bringing legal action against their schools under Title IX itself; arguing that the collegiate disciplinary process is stacked against them because of their gender, and as such, is in violation of Title IX. Although it is rare among colleges and universities when disciplinary charges are brought under Title IX, some schools continue to prefer to keep disciplinary proceedings and hearing between the accused student, university personnel, and the complainant. At such schools, accused students are not afforded the most basic of rights. Namely, having the benefit of an attorney experienced in such matters; indispensable in light of the nature of an Title IX school hearing and what is at stake. Even at schools that welcome an attorney on behalf of an accused student, most schools do not allow the accused to confront their accusers directly; instead having questions posed through and/or by the Title IX conduct board. Having attended countless Title IX hearings, it is obvious that such a policy can present an incredible number of concerns; especially if one is not familiar with the process, which is the case with almost all accused students.
Those calling for change and a more equitable process regarding the Title IX disciplinary process also note the 2011 Department of Education's Office of Civil Rights directive that gives both the accused student and the complainant the right to appeal a Title IX decision. Even if an accused student is found not responsible by their school at the Title IX hearing, the student is arguably subject to double jeopardy in that the complainant can appeal the decision, and the accused can nonetheless be thereafter found responsible. Per the 2011 directive, the Department of Education also called for schools to apply a lower burden of proof in cases involving allegations of sexual misconduct and/or sexual assault. Whereas the higher standard of "clear and convincing evidence" was previously used by some schools, the Department of Education called for the lower standard of "preponderance of the evidence" to be used.
Arguments can be made both for and against how colleges and universities pursue and handle Title IX cases, but there can be no dispute that an accused student is essentially being tried for what amounts to an extremely serious criminal offense in a setting so far outside the bounds of a criminal courtroom, and its inherent protections and safeguard, that the school disciplinary process has fundamental flaws. This is why the the three male students are fighting back by suing their schools; arguing that their right to a fair hearing was violated. These lawsuits will only increase in number because colleges and universities are increasing their efforts to comply with Title IX mandates by more aggressively pursuing cases involving allegations of campus sex offenses.