The Baylor University sexual assault scandal has shined a bright and much-needed spotlight on the way college campuses across the country handle sexual assault accusations. What it has revealed is another troubling problem: Title IX sexual assault provisions addressing protections for the accused are seriously flawed and must be revised. Of greatest concern is the lack of due process, as ensconced in Title IX rules, that’s allowed an increasing number of male students to be suspended from college when they’ve been accused of sexual assault.
For the past two years, I have attended legal workshops of the Association of Community College Trustees, where the consensus among legal scholars is that Title IX sexual assault provisions need to be overhauled.
Among the Harvard law school faculty, 21 men and 7 women declared “strong objections to Sexual Harassment Policy and Procedures,” and asserted: “As teachers responsible for educating our students about the due process of law . . . and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach.” They continue with this powerful, revealing, and condemning statement: The policy and procedures “lack the most basic elements of fairness and due process [and] are overwhelmingly stacked against the accused.”
Due process would enable rules of evidence, discovery, the right to effective counsel, subpoena power, and sworn testimony—befitting a charge of sexual assault that forever stains the reputation of the accused. When a student is expelled from a college for sexual assault, the stain remains.
There are four flawed provisions in Title IX sexual assault procedures:
1. The Department of Education explains that “in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred.).” “More likely than not” evidence is hardly strong or convincing enough to sentence the accused to a lifetime stain on reputation.
2. Title IX requires that schools designate a Title IX coordinator who can adjudicate Title IX complaints. This is too much power to a single school administrator. One person can control a student’s destiny.
3. The words “due process” do not appear in Title IX.
4. Title IX is silent on recourses available to the accused. Accused students can file lawsuits if they believe their due process rights were violated during the discipline process—but this comes after the horse is out of the barn, and it’s expensive for the filer.
At Lone Star College (as a trustee I speak here only for myself), we have set up an adjudicatory process to handle Title IX sexual assault charges. In such a case, we require written statements from the accuser, from the accused, and from student services. Our final step is exemplary—one that I think all colleges should emulate: we hand adjudication to an outside retired judge, seeking to make resolution as accurate and as fair as possible.
The college also requires that all faculty, staff, and administrators be trained about sexual assault.
Some months ago, Texas A & M got in trouble for dismissing a student, who then appealed his case to the Office of Civil Rights—but, again, after the horse was out of the barn. Just now Brown University is in trouble for expelling a student for alleged sexual assault. The student sued, and a judge overruled the University, reinstating the student. Both of these universities could learn from Lone Star College a more accurate and fairer way to adjudicate charges of sexual harassment.
Title IX, as it now stands, permits the possibility of inaccurate, unfair judgment and action against an individual charged with alleged sexual assault. It can wrongly ruin lives. The policy and procedures must be revised to handle sexual assault that indeed does happen too often on college campuses.