The Kafka-esque Nature of Title IX Investigations

Over the years, we've written a lot about the many unfairnesses built into Title IX: the biases, the unfair procedures, the draconian penalties. The truth, though, isn't that Title IX is merely “unfair.” That's putting things too mildly. The truth is, Title IX and the system for prosecuting Title IX offenses is truly bizarre, like something only a writer like Franz Kafka could have dreamed up.

You remember Kafka, right? Freshman literature, the story about the guy who turned into the bug? Kafka was the master at imagining nightmarish scenarios like that one.

Here's the thing, though. Lots of writers tell scary stories. Kafka's work stands out because he treats the nightmarish scenarios he dreams up as so unremarkable. No one in “The Metamorphosis” seems especially surprised that Gregor Samsa has become a “monstrous vermin.” He simply wakes up one day and there he is. It's a convenience, it's scary, it's tragic, but it isn't particularly unusual.

In another of Kafka's works, “The Trial,” the protagonist, Josef K., is accused of committing a crime, but no one will tell him what he's done wrong. He's then ordered to appear at trial but not where and when it will occur. The unsettling aspect of the tale is that Josef K.'s friends and neighbors treat his arrest as though it were simply a normal part of everyday life.

That's the thing about Title IX too. It isn't just that being accused of sexual misconduct feels nightmarish. Certainly, it does. But part of the nightmare is that no one else seems to recognize that there's anything unusual about what's happening to you. Everyone treats the whole process as though it makes perfect sense. Title IX cases aren't normal, though. In fact, they can be completely absurd.

So, for once, let's talk about Title IX, not in measured tones, not using restrained terms like “unfair” or “frustrating,” but instead using words like “absurd,” “unbelievable,” and, yes, “Kafka-esque.” Because that's what Title IX prosecutions are: Kafka-esque.

A Brief History of Title IX

Where does the trouble with Title IX begin? Well, it starts at the beginning, of course, with the very passage of the law itself, though the trouble wasn't apparent in the beginning.

Passed by the Federal government in 1972, Title IX was meant to address evident gender inequalities that plagued American education and, notably, higher education. College campuses weren't exactly welcoming to women in the late 1960s and early 1970s. In fact, they could often be openly hostile spaces. Few would dispute the fact that something needed to be done about the situation. In fact, in historical context, the law made a lot of sense.

Nor is the central text of Title IX problematic. It reads,

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

So far, so good. The government recognized a serious social problem; the government passed a law to fix the problem. That's what government does.

Problem #1: Educators Aren't Detectives

Title IX didn't make it illegal for colleges and universities, or anyone else, to discriminate against women, though. Things might have been simpler if it had. Instead, the law put the burden of investigating and prosecuting complaints about harassment and discrimination on universities themselves.

Almost fifty years later, the current state of affairs feels normal. But it's worth taking a moment to think about that initial choice.

Universities aren't organized to conduct investigative and judicial functions. Generally speaking, a school's job is to educate students, not solve crimes. No one would deny that university faculty are smart but understanding quantum mechanics doesn't mean you can tell whether a suspect is lying, and knowing the definition of a gerund is different from having a well-grounded understanding of American jurisprudence. If you're a student accused of assaulting your ex-girlfriend, you want to face a judge who's well-versed in the law. You're bound to be a little disconcerted to find out the chair of the botany department is responsible for deciding if you'll be expelled.

Problem #2: A Few Conflicts of Interest

A bigger problem with the government's choice is that the government created several obvious conflicts of interest by giving schools the sole responsibility for dealing with Title IX cases.

Universities are meant to be caring, nurturing environments for the young people who enroll in them. After all, schools don't just educate students: they feed them and house them. They give them leadership training and help them begin their careers. Yet, in Title IX cases, schools are suddenly forced to turn against those very same students. What does it mean that a school can heavily recruit a kid in the spring, and then they suddenly find themselves harassed by the same school just a few months later?

The absurdity of the whole Title IX system goes much deeper, though. Under Title IX, a university serves as both investigator and judge in sexual misconduct cases. There is a reason why those roles are kept separate in the American judicial system. A detective's job is to prove a suspect is guilty. A judge, on the other hand, must maintain objectivity. If detectives also served as judges, there would probably be a lot more convictions. That might tend to undermine the concept of “blind justice,” though. By asking schools to serve both these roles, that's precisely the sort of situation Title IX creates.

Problem #3: Incentives to Convict

Things get worse in this story as time goes on. Once the government decided the university should be responsible for policing its faculty and students, it needed an enforcement mechanism to ensure it would do a good job. The mechanism it chose was money. Specifically, Title IX says that any school that refuses to respond to a discrimination complaint becomes ineligible for federal funding. Never mind that this money usually goes to students in the form of grants and loans. Never mind that cutting it off hurts students—including female students—as much as schools.

As you might imagine, schools across the country quickly fell into line. In fact, in terms of what it set out to accomplish, the law worked extraordinarily well, better than Congress could have ever dreamed. The problem is schools became so anxious to keep their funding that they sometimes went to extreme measures to make sure they complied with Title IX. Not only do schools investigate every report of sexual misconduct, no matter how spurious, but they fully prosecute almost every case, and the end goal seems to be ensuring any student who stands accused is eventually expelled.

Simply put, then, Title IX wound up creating a built-in incentive for schools to go after their students.

Problem #4: Defining “Discrimination”

Unfortunately, the absurdities of Title IX don't end with the law itself, or rather the law merely got the ball rolling.

A second key flaw of Title IX has to do with the definition of “discrimination.” Initially, the law didn't define this term concretely. Of course, we all know what “discrimination” means, right? The answer, it turns out, is no. That left the courts to try and cobble together a definition. Given that Congress had left things so open, they had little choice but to define it as broadly as possible.

Today's Title IX protects women from a whole host of crimes, some of which you might not immediately associate with “discrimination.” A student, for instance, might reasonably complain about a teaching assistant who gave her a low grade on a paper simply because she's female. That would seem to be a reasonable example of gender-based discrimination.

Things begin to feel a little more Kafka-esque when you find out that Title IX also covers stalking, intimidation, sexual assault, and rape. Lumping so many different types and levels of crime together seems illogical at best.

The far more significant problem with defining these crimes as “discrimination” is that schools are asked to perform functions they're not equipped for and asked to perform those functions in the most extreme cases. There may be a reasonable argument to be made that schools have an obligation to investigate and punish faculty and other students who mistreat women. Even if those who serve on college judicial panels lack qualifications in the law, they can undoubtedly make judgments about fair and equal treatment.

The idea that a university is the best institution for dealing with allegations of rape, though, borders on the ridiculous.

Problem #5: Schools Behaving Badly

Given that they aren't set up for dealing with such weighty criminal justice matters, it's not surprising that they often get it wrong when a university is given responsibility for those matters. It turns out they make more than their fair share of mistakes.

For example, most schools offer a range of resources to complainants in the name of “victim services.” They rush to provide medical aid and counseling. There's nothing wrong with that: it's simple kindness

Services for the accused, though? Not so much. If we take for granted the American judicial principle that the accused is “innocent until proven guilty,” isn't it just possible that an accused student is suffering as much trauma as the accuser? A sexual misconduct accusation isn't a light charge. Among other things, it comes with a serious social stigma. Students who are accused frequently suffer from feelings of intense shame, even if they are entirely innocent. They may experience PTSD as the result of over-zealous investigative procedures. All of this treatment may come suddenly, unexpectedly, due to an accusation from someone they trusted, someone with whom they believed they had an intimate connection.

True, the police don't usually offer accused rapists medical care or therapy. But then, schools aren't the police. They are institutions of higher education, places that until the very moment a student is accused, fed that student, housed that student, educated that student. As soon as someone makes an allegation, all that caring disappears.

Problem #6: A Lack of Objectivity

The situation gets worse, though. It isn't merely that the school is no longer on the student's side. It might make sense if they insisted on taking an objective stance. Instead, they more often take the complainant's side of the dispute. As a result, the entire Title IX process is set up to convict anyone accused.

For starters, students aren't subject to the same rigorous judicial standards as they would be in a court of law. The school doesn't have to prove they are guilty “beyond a reasonable doubt.” Instead, they can use the much weaker “preponderance of evidence” standard. Using this standard, they need only prove that events are “more likely than not” to have occurred. The principle that a unanimous jury must convict a person? That doesn't apply either. Cases are heard by a panel made up of faculty and students, and only a majority of them need to believe a student is guilty to convict.

You might ask, how can schools get away with this kind of slanted justice?

The argument is that the penalties students face aren't as severe as those a defendant might encounter in an actual courtroom, so they don't need to be afforded the same rights. After all, students aren't facing jail time. However, that argument ignores the fact that Title IX penalties usually include suspension at a minimum. More often, the penalty is expulsion. And expulsion isn't just expulsion. It comes with a transcript notation with the nature of the offense, likely preventing the student from enrolling in another college. That may very well keep them from getting a good job. That seems like a pretty high cost to pay for students who aren't afforded their fundamental Constitutional rights.

The real answer as to why schools deny students these rights? Well, the kind answer would be that they're simultaneously in a difficult position and unequipped to handle serious matters of justice. The truth is it's in their best interest to convict anyone accused of a sexual misconduct violation, and they'll do whatever they can to do that.

Problem #7: Mob Mentality

This entire state of affairs existed well before the “Me Too” movement began gathering momentum. That movement, though, has made the problem of Title IX justice exponentially more difficult.

As though universities didn't already have enough incentive to convict students under Title IX, those same schools now find themselves perpetually under a media microscope. One accusation made to CNN can ruin a school's reputation overnight. No school wants to be labeled as a haven for sex offenders. No school wants to be known as dangerous.

So, colleges and universities work extra hard to make sure anyone accused of sexual misconduct pays for it, whether or not they're guilty. Simply put, Me Too puts justice in the hands of the media and popular opinion. Maybe you're familiar with other moments in American history when that's been the case: Salem, the McCarthy Hearings. Typically these types of situations don't turn out well.

But honestly, is the “Me Too” movement really so bad? After all, we all agree that women deserve equal rights. We all agree that women have been grossly mistreated in the past. We all agree society must change.

In and of itself, “Me Too” isn't a bad thing. Its aims are quite noble. As with any movement, though, as “Me Too” grows larger and its supporters more committed, it constantly risks spilling over into a mob mentality where the cause itself trumps justice.

Don't think we're to that point yet? Maybe you've seen a popular poster around campus that points out that one in five college women will be a victim of sexual assault. The underlying message of a sign like that is that it's dangerous for a woman to go to college at all. Here's what the poster doesn't say: women who aren't in college are 1.2 times more likely to experience sexual assault than those in college.

Films like “The Hunting Ground,” popular viewing with many campus organizations, stir up fear and paranoia in the same way. The film's very title argues that colleges are dangerous places for women and that women must always be on their guard. The result? Paranoia. Women come to see all men as potential rapists. They are quick to accuse their fellow male students over the most innocent misunderstandings, quick to rally to a complainant's side no matter the facts of a case, and quick to harass and discriminate against someone who should be treated as innocent until proven guilty.

A Safety Net

Luckily, the actual justice system has protections to protect the accused from precisely these scenarios. In a real courtroom, plaintiffs and defendants are treated equally under the law. Defendants are entitled to due process rights and are presumed innocent until proven guilty beyond a reasonable doubt.

Maybe that's one reason why there are so many lawsuits pending right now.

A recent article in Campus Safety Magazine, for example, notes,

“Over the last eight years, there have been several hundred lawsuits filed against colleges and universities by students accused of sexual assault by another student. Now, experts say a case is filed every two weeks or so.”

Courts have begun to recognize that universities will do anything to save their funding and defend their brand, even turn justice entirely upside down. How far are schools willing to go? In 2018, a court discovered that Ole Miss had distributed Title IX training materials explaining that when a rape accuser lies, the lies “should be considered a side effect of an assault.” In essence, these materials argued that false accounts prove the truth of an event. Any wonder, then, that the courts have increasingly begun to step in and put a stop to such Kafka-esque situations?

How Attorney Joseph D. Lento Can Help With Your Title IX Defense

Here's the bottom line: no one deserves to be treated like a Kafka character. If your school has accused you of sexual misconduct, though, you may very well wish some days that you had been turned into a bug instead. Don't let the situation overwhelm you, though. Before that happens, call attorney Joseph D. Lento.

Your school may employ all sorts of dirty tricks. For example, they may say you don't need a lawyer, that they'll look out for your best interests. Meanwhile, your school might disconnect your internet account, so you can't get access to evidence. They may even suspend you before they've bothered to investigate. Stop them. Contact attorney Joseph D. Lento.

Joseph D. Lento has years of experience defending students just like you from sexual misconduct accusations. He built his career on Title IX cases. Attorney Lento knows the law inside and out. He also knows how colleges and universities operate. Most importantly, he knows how to stop them from violating your fundamental rights.

Attorney Joseph D. Lento is empathetic to your case. He knows you're facing an uphill battle. He knows what's happening to you isn't fair, and he's 100 percent committed to helping you win.

If you or your student has been accused, don't wait for the school to act. Act first. Contact the Lento Law Firm today at 888-555-3686, or use our automated online form.

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