A couple of our recent blog posts have dealt with Missouri's chaotic attempt to inject some due process into Title IX cases. One confusing aspect of that attempt was how it seemed to forget about the Supremacy Clause – any contradiction between Missouri's state law and the federal Title IX rules and regulations would go in favor of the federal mandate.

A provision that has gotten a bit more media attention, though, was the one that would have allowed students who had been wrongfully accused of sexual misconduct to file a lawsuit against their accusers. This portion of the proposed law bears some more examination.

Provision Would Have Allowed Cleared Students to Sue Their Accusers

The proposed bill was Missouri House Bill 573.

In its original form, HB 573 would have allowed accused students to file a civil lawsuit against their school, Title IX staff members, and even the student who accused them of sexual misconduct, if the accused student was found in violation of Title IX at the school hearing, but was later cleared of wrongdoing on appeal.

That civil lawsuit would have been allowed to recover compensation for lost wages, reduced earning capacity, and mental and emotional suffering from the Title IX allegation, as well as punitive damages and attorney's fees.

Some of this provision in HB 573 was cut out before the bill was set for vote: After the amendments, an accused but subsequently cleared student could only sue their school, not the accuser.

Criticizing the Criticisms of These Lawsuits

Needless to say, victims' advocates and school officials came out strongly against the possibility that schools and accusers could face a lawsuit if the allegations faltered on appeal. Schools claim that the law is too unsettled for them to reasonably be held accountable. Victims' advocates claim that the possibility of a civil lawsuit would chill sexual misconduct allegations.

But do those claims really hold water?

Schools are in a tricky position where they have to pander to the #MeToo movement and adjust to developing standards in the Title IX process. But not all of the law is unsettled. Fundamentals of due process have existed for centuries in America, and the rules are very straightforward in many circumstances. Claiming that it's a shock to learn that accused students have a right to cross-examine their accuser is a non-starter. Holding schools accountable for such clear violations of the law might not be a bad thing.

Allowing civil lawsuits against alleged victims whose allegations of sexual misconduct were overturned on appeal is trickier – many people probably would reconsider initiating a Title IX case if they knew they could be sued, down the road. But the people who would be the most deterred are not sexual assault victims – they are people who know they have a tenuous, weak, or outright false claim. Falsely reporting a crime can itself be a crime, and can lead to a libel or slander lawsuit. Is it really so outrageous to apply the same standard to the Title IX system?

Joseph D. Lento: National Title IX Advisor

Joseph D. Lento is a national Title IX advisor. Contact him online or call his law office at (888) 535-3686 if you have been accused of sexual misconduct on campus.