FIRE’s Campus Due Process Litigation Tracker is a searchable database of Title IX litigation, including lawsuits in which individuals accused of sexual misconduct are seeking to overturn the disciplinary actions of higher education institutions. The website premiered on October 16.
Title IX of the Higher Education Act governs sexual discrimination policies of institutions receiving federal aid. Title IX requires colleges to adopt disciplinary processes to handle claims of sexual discrimination, harassment, and violence. The U.S. Department of Education’s Office for Civil Rights investigates sexual misconduct complaints.
There has been an explosion of litigation over Title IX disciplinary actions in recent years, says Samantha Harris, FIRE’S vice president for procedural advocacy.
“The Obama-era Office for Civil Rights, both through its written guidance and through a dramatic increase in the number of schools under investigation for Title IX violations, exerted a great deal of pressure on schools to aggressively address sexual misconduct on campus,” Harris said. “Unfortunately, many schools responded to this pressure by abandoning critical procedural protections for accused students, making it easier to find them guilty whether they were guilty or not.”
More than 500 students accused of sexual misconduct have filed lawsuits claiming they were denied a fair process in campus judicial proceedings since April 2011.
“This wave of litigation has been quickly transforming the relationship between higher education and the judiciary, and we wanted a way to keep lawyers, journalists, and the general public informed about this developing body of law,” Harris said.
“While some attorneys specialize in campus disciplinary cases, many attorneys who are hired to represent students in these cases are general practitioners who are unfamiliar with this new and changing body of law,” Harris said.
“One of our primary goals with the database was to provide attorneys with a resource where they could search and easily find cases relevant to the cases that they are handling,” Harris said. “That is why users can search the database not only by things like state, stage of litigation, and who the outcome was favorable to, but also by a number of keywords.
“We also hope the database will be of use to journalists and members of the public who are looking for more information on these cases,” Harris said.
The tracker is well-designed, says Harry Painter, who writes on education issues for The Heartland Institute, which publishes Budget & Tax News.
“It should cut down on valuable research time for attorneys, and I think it would make it easier for them to educate themselves on the relevant case law,” Painter said.
Accused Denied Due Process
Title IX language directs schools to respond to sexual misconduct in a way that is “prompt and equitable.” In 2011, the Office of Civil Rights issued a guidance letter—a regulatory action—that stated Title IX requires the institutions “to take immediate and effective steps to end sexual harassment and sexual violence.”
The Obama administration pushed colleges to quickly punish alleged Title IX violations, Painter says.
“This has led many colleges and universities to lower their standards of due process for accused students,” Painter said.
Colleges have aggressively pursued unsubstantiated sexual harassment claims and are punishing a wider range of behaviors, Painter says.
“The current Title IX situation encourages frivolous accusations,” Painter said. “It is at least one factor. Another is the push for affirmative consent, which has helped create an environment in which standard young adult male behavior, not just rape and sexual assault, is criminalized or treated with suspicion.”
U.S. Secretary of Education Betsy DeVos withdrew the 2011 guidance letter on September 22, 2017 and proposed a new regulation on sexual discrimination on November 16, 2018. DOE is reviewing comments received on the draft rule, which DeVos is expected to issue in final form in the next few months.
The proposed rule would make important substantive changes, Harris says.
“At many schools today, the process is anything but equitable,” Harris said. “Many of the changes proposed in the draft regulations would address that problem by requiring schools to provide a fairer procedure.”
Title IX Clarification
The new DOE regulations should clarify the scope of Title IX, Painter says.
“The text of Title IX says nothing about what happens outside of the classroom or officially sanctioned activities,” Painter said. “It applies to ‘any education program or activity receiving Federal financial assistance.’ Any new regulation should clarify that colleges themselves are responsible for deciding how to handle sexual assault cases.”
The 2011 guidance letter put colleges in the business of investigating criminal complaints to the detriment of their education mission, Painter says.
The 2011 guidance letter specified that colleges had to conduct their own investigation of any case, even if law enforcement was already investigating it as a criminal act,” Painter said. “These and other rules led to a huge amount of college resources being spent on hiring well-paid administrators and redirecting existing offices toward Title IX compliance.
“A new ‘Dear Colleague’ letter should strongly recommend that colleges allow law enforcement to handle criminal charges and revert student and taxpayer dollars to academic uses,” Painter said.
Ashley Bateman (email@example.com) writes from Alexandria, Virginia.
Campus Due Process Litigation Tracker, Foundation for Individual Rights in Education: https://www.thefire.org/research/campus-due-process-litigation-tracker/
Robert G. Holland, “Feds Transform Title IX into Enemy of Common Sense,” The Heartland Institute, March 6, 2017: https://www.heartland.org/news-opinion/news/feds-transform-title-ix-into-enemy-of-common-sense