‘TWISTING TITLE IX’ WEEK: Due Process Legal Update

To celebrate the release of FIRE Executive Director Robert Shibley’s new book, Twisting Title IX, we are bringing you a week full of information about how the federal government has twisted this anti-discrimination law to threaten free speech and due process on college campuses.

Over the past year, I have written a tremendous amount about how intense pressure from the Department of Education’s Office for Civil Rights (OCR) has led schools to abandon even the most basic notions of fundamental fairness when addressing claims of sexual misconduct on campus. In the climate of fear that OCR has created, students are routinely found responsible for sexual misconduct without so much as a hearing, under the increasingly popular “single investigator” model of adjudication. Even at schools that do still allow for hearings, students are typically forced to defend themselves without the active participation of an attorney or advisor, and are often effectively prohibited from questioning their accusers or the witnesses against them.

When I first wrote about this topic last October in a piece for The Heritage Foundation, I noted that as of August 2015, OCR was investigating 128 colleges and universities over their handling of sexual misconduct claims. As of June 2016, there were 195 colleges and universities under investigation. The pressure from OCR—which has the power to suspend or terminate federal funding of schools found not compliant with Title IX—shows no sign of abating.

I also noted that as of August 2015, more than 50 students had sued their universities since OCR issued its April 4, 2011 Dear Colleague Letter, alleging that they were denied basic fairness in university sexual misconduct proceedings. As of this writing, more than 120 accused students have filed such lawsuits. For the most part, these plaintiffs allege one or more of three things:

• Discrimination on the basis of sex in violation of Title IX
• Breach of contract
• Constitutional due process violations (at public universities)

As I explained in my most recent due process legal update in July, this is a rapidly developing area of the law. Court rulings thus far have been a mixed bag for these plaintiffs, but with a trend towards decisions favorable to accused students in recent months. And a large number of these cases remain outstanding, guaranteeing more legal developments in the months to come.

There have also been at least eight new complaints filed since I last wrote. The most recent complaint, filed on Friday against the University of Pennsylvania, includes some shocking allegations against the Ivy League university. The complaint alleges that the university’s investigators found the student responsible for violating the university’s since-updated Sexual Violence Policy without ever giving him the details of the allegations against him. The student acknowledges that he had sex with his accuser, but claims it was consensual and that the university never explained to him what led his accuser to state otherwise.

The complaint alleges not only that Penn breached its contract with the accused student and discriminated against him on the basis of sex in violation of Title IX, but also that the university discriminated against him on the basis of race—the student is African-American, while his accuser is white. According to the complaint, the investigators’ report “cobbled together snippets of statements that match gender and racial stereotypes, all to support the preordained conclusion” that the student was guilty.

Since late July, students have also filed new lawsuits against the University of Michigan; the University of New Mexico; Wright State University; the University of Chicago; Indiana University; Rider University; and Hobart and William Smith Colleges.

I will continue to report on new developments in this quickly evolving area of the law. And of course, for even more information about how Title IX is being misused in ways that threaten free speech and due process on campus, be sure to check out Robert’s new book!