Title IX: How Schools Hold Kangaroo Courts and Oppress the Accused
In my last blog post, I discussed the work that Erin Pizzey did to ensure that victims, regardless of background or identity, found refuge in escaping from domestic abuse. In that article, I stated the following:
“Because of the way our society has changed, women are seen more and more as victims by law than men… It is the reason why colleges and universities today are compelled by the Office of Civil Rights to try sexual assault cases on campus in accordance with the infamous “Dear Colleague” letter, which strips away any due process on the side of the respondent of the claims and can lead to their expulsion from school.”
I wanted to make a post detailing how the demonization of men persists through the law, and… oh boy, I found a lot. I decided to split it into parts so that I could delve into each aspect and provide extensive comments on them (And yes, I do plan to be “worldly” in dissecting this issue, as a response to a Reddit user.)
First to discuss is Title IX, which is increasingly becoming more relevant than ever as we approach October 2023. That month is when guidelines previously established by the Obama administration will make their return to colleges and universities around the nation. These guidelines were previously effectively repealed in 2020, in what proved to be a polarizing maneuver of the Trump administration. But what were those guidelines, and how is an amendment enacted to ensure gender equality targeting men?
Firstly, as I have noticed many people are often confused about how Title IX is connected to sexual assault, I will explain the link between the two concepts. In 1972, a federal civil rights bill was signed into law that banned sex-based discrimination in the enrollment of schools and involvement in sports and other organizations that received funding from the government. This was used to ensure that women could compete in activities that were previously exclusive to men. In the ensuing years, cases such as Alexander v. Yale would set a precedent that sexual harassment and assault would fall into discrimination, as it can prevent women from participating in those endeavors, meaning that it should be banned too. This led to schools such as Yale University establishing procedures to address concerns of sexual assault more carefully.
However, it wasn’t until 2011 that these procedures would be enacted at the grossest of negligence towards the rule of law. That year, the Office of Civil Rights, under the jurisdiction of Catherine Lhamon, implemented changes with the aforementioned Dear Colleague letter that set the tone for how schools should try sexual assault cases. In that letter, Lhamon noted that failing to adequately handle these cases is in and of itself considered sex discrimination, which implies that there is more of an incentive for schools to abide by their rules at the risk of losing funding. The changes listed in the Dear Colleague letter included the following:
- Lawyers for the accused (also known as the respondent) cannot cross-examine witnesses. In addition, the accused were warned about cross-examining themselves.
- The accuser (AKA the complainant) can keep their identity hidden from the accused.
- All employees are required to report any sexual assault case that they are confronted with to the school’s Title IX office.
- In trying cases, the school must (note: must) use a preponderance of evidence standard. In other words, the officers responsible for determining the case must believe that sexual assault occurred more likely than not(greater than 50%).
The letter and subsequent Q&A document written by the OCR is quite revealing in how it perceives cases should proceed. For example, they refer to the accused as the “perpetrator” 86 times, as if guilt was already assumed. In addition, they mention how Title IX cases differ from criminal investigations. They state the following:
“The U.S. Constitution affords criminal defendants who face the risk of incarceration numerous protections, including, but not limited to, the right to counsel, the right to a speedy trial, the right to a jury trial, the right against self-incrimination, and the right to confrontation. In addition, government officials responsible for criminal investigations (including police and prosecutors) normally have discretion as to which complaints from the public they will investigate.”
“By contrast, a Title IX investigation will never result in incarceration of an individual and, therefore, the same procedural protections and legal standards are not required. Further, while a criminal investigation is initiated at the discretion of law enforcement authorities, a Title IX investigation is not discretionary; a school has a duty under Title IX to resolve complaints promptly and equitably and to provide a safe and nondiscriminatory environment for all students, free from sexual harassment and sexual violence.”
In short, Title IX cases would be held so that the accused cannot be appropriately responded to, possibly resulting in the finding of responsibility, even without evidence, and likely expulsion of the respondent. Title IX courts give none of the constitutional provisions to the accused, most likely because that would mean that cases on campus would be tried with the same scrutiny that often causes rape cases to be thrown out before investigation. This is both a good thing and a really bad thing.
It is good that sexual cases will not be thrown out. There is a major issue that faces victims of rape and sexual assault should they present their case to the authorities. Firstly, often cases like these dwindle to a “he said, she said” situation due to the lack of evidence in most scenarios, so presenting a case will prove difficult. Add to the fact that in some states, the statute of limitations for rape and sexual assault cases can be short, cases are not often taken as seriously as they should, and having to recount experiences can end up being very traumatizing, and one can see why victims are less likely to report their experiences to the police.
However, it is really bad that this has to carry a heavy burden on the accused. Not because they are being investigated for what they did, but because explaining their side of the story can become a monumental task. First of all, they are not granted the ability to cross-examine witnesses, which essentially puts the witness in a position to tell any story they can without scrutinization from the defense. This gives leeway to false testimonies or the encouragement of those who would carry a bias against the defendant to testify. Furthermore, the respondent cannot actually face their accuser, making it harder to poke holes in their stories. Finally, they are usually not granted the right to know who their accuser is and what they are accused of. How can anyone defend themselves if they do not know what the allegations are?
Of course, those are issues if the complainant is falsely accusing someone else. Which rarely happens, right? That’s what many say, at least.
The truth is that while false allegations are considered a statistical minority, it is a minority that casts so much doubt on the system. Consider that many schools, including the aforementioned Yale University, are being sued for improper handling of the cases to the detriment of the accused. Regardless of the prevalence of these cases, one cannot doubt there is some uncertainty painted over the credibility of these courts.
These uncertainties are completely understandable knowing some of the standards to which schools must abide by. No cross-examination, no identification of the allegations? This is a kangaroo court, where guilt has already been determined before the allegation made its way to the defendant. These courts are an affront to the fundamental principle of innocent until proven guilty. Not only that, but the consequences are brutal. Possibly facing expulsion from a school that people worked hard to attend, and the chance of never being able to go to another school with such a stain on one’s record is a lot more devastating than some realize.
The Trump administration took notice of these standards and decided to remove them under the jurisdiction of then-Secretary of Education Betsy DeVos with the advice of men’s rights advocacy groups. While many took issue with the changes, and some, including myself, took note that it was less about creating fair trials and more about removing the legacy of Barack Obama’s presidency, I have to admit that a broken clock can be right once a term. I might disagree with Trump and DeVos on their politics, but they absolutely did the right thing in reversing Lhamon’s changes. The damage that she did to Title IX cases resulted in many lives being ruined by them, as well as several lawsuits against public and private universities, many of which were won by the accused.
Now, however, progress seems to be going two steps back.
Now with Joe Biden as president, he has reinstated Catherine Lhamon to her former position, and her guidelines are set to make a “triumphant” return as soon as October 2023. The dark ages of mock courts will come back, as somehow fairness in courts has been hijacked to be a polarizing issue along party lines, with Democrats taking little to no issue in the removal of due process while Republicans actively oppose any measure of the sort. Even as a leftist, I have no reason to trust any Democratic official on their stance on Title IX, even the more “radical” members of the party.
Thankfully, there are many advocacy groups that will assist in order to ensure the accused will get their rights to due process in a court ensured, including Families Advocating for Campus Equality (FACE), Foundation for Individual Rights and Expression (FIRE), and Title IX for All. However, coming in a few months, we will see an uptick in false cases, forced expulsions, and college lawsuits as we saw in the Obama-Lhamon era.
In conclusion, be careful out there students, and make sure you do not find yourself having to defend yourself in a Title IX kangaroo court.
Note: I never had experience in tracking this, but I am curious if anyone has ever had the experience of being a victim and actually finding your perpetrator was not responsible. I have a hypothesis that these rules from Lhamon actually aggravate that issue rather than make it easy. Thank you!
