Title IX: No Such Thing as Too Legalistic

Posted by Joseph D. Lento | Aug 19, 2022 | 0 Comments

There have been a lot of recent complaints about how Title IX guidelines have become so legalistic they have created a “College Quasi Court.” It's true, they have. Guess what? A healthy dose of legalism is precisely what the system needed. Victims' rights organizations complain it's now harder to convict accused students. That's also true, but that's how justice in America is supposed to work.

The Alternative

Think Title IX is too legalistic? Consider the alternative. Actually, you don't have to. Just consider what things were like before the Trump administration passed the Final Rule in 2020. Universities had free reign to use any process they wanted to investigate and adjudicate accused students. No two schools ever did things the same way. More importantly, schools were under no obligation to provide accused students with any particular due process rights. So, often they didn't. Respondents didn't always have an opportunity to defend themselves in an open hearing. They weren't always allowed to cross-examine witnesses. In one case—Doe v. Mississippi—district court judges discovered that University of Mississippi training materials actually advised Title IX investigators to treat lies from complainants as evidence they were telling the truth. It's hard to imagine how anyone could ever be found innocent in a system like that.

A History of Title IX

The thing is, Title IX wasn't meant to be used as it is today, to handle student-on-student allegations of sexual misconduct. The law prohibited sexual discrimination in the beginning. That applied to schools, not students. The purpose was to prevent colleges and universities—faculty, staff, and administrators—from discriminating against their own female students in terms of admission standards and classroom treatment.

Over time, though, the government redefined the definition of “discrimination” to include “harassment” and ultimately any sexually-based offenses, any behavior that inhibited a woman's ability to get an equal education. As a practical matter, that shifted enforcement of the law. Rather than the government prosecuting schools, schools now prosecuted their own students.

Allegations of stalking, dating violence, and rape are among the most serious that any student can face. Yet, faculty, staff, and even students serve as Title IX investigators and decision-makers. As you might expect, physics professors aren't particularly well-equipped to decide such weighty matters as whether or not someone is a rapist.

To its credit, the government quickly recognized the problem. Rather than revise the law, however, it let schools do away with the complex legalistic elements usually involved in courtroom justice. It turns out, though, those “legalistic” elements are kind of important.

Due Process Matters

Why does the US Constitution grant defendants due process rights? Because we would rather some guilty persons go free than some innocent people be punished. It is harder to convict defendants with a lot of extra rules in place. If we did away with them, trials would be far simpler and much faster. Without some important protections, though, such as the right to be presumed innocent until proven guilty, there would be a lot more innocent people in prison.

The government's original argument for relaxing Title IX judicial requirements was that, after all, students aren't being sentenced to prison in such cases. If no one's going to jail, why worry so much over protecting defendants' rights?

The problem with this argument is that the minimum penalty in most Title IX cases is suspension. The most common penalty is expulsion. Often expulsion comes with a transcript notation that can prevent students from enrolling anywhere else. In short, a guilty verdict essentially bars students from getting a college education. That's not prison, but in some ways it's every bit as serious a punishment.

The fact is, even now, under the Final Rule, students don't get the same rights they would in a court of law. For example, decision Makers don't have to find them guilty “beyond a reasonable doubt.” Instead, they use the much less strict standard “preponderance of evidence,” which means they can find students guilty if they believe it is “more likely than not” that they violated policy.

The Bottom Line

Here's the bottom line: you can't create a “legal” system and then complain when it becomes “legalistic.” The government put sexual misconduct cases under the purview of educational institutions ill-equipped to handle them. Then, for years, it turned a blind eye to the rampant injustice that resulted from ad hoc judicial procedures. Did the Trump administration tighten the rules? Yes. But they didn't foist the legal system onto colleges and universities in the first place. Title IX did that. The Final Rule merely tried to level the playing field for defendants.

Want to know more, or are you facing a Title IX allegation yourself? Contact attorney Joseph D. Lento and the Lento Law Firm today. Call 1-888-555-3686 or use our automated online form.