Title IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through decision making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This essay addresses change in light of campus sexual assault allegations, and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay will limit discussion to sexual harassment and sexual discrimination Title IX claims only, particularly, sexual assault.
The primary topic of ongoing concern is how Title IX investigations and hearing processes are conducted. Review, and in some cases revision, of campus policies was prompted by two interconnected influences. The first was the referenced letter from the Department of Education, and the second was due process and other criticism by those who advocate within the criminal justice framework. This essay explores the impact that criminal law and criminal lawyers have had on the Title IX processes. Part of this exploration will include the recently released ABA Criminal Justice Section’s recommendations on how Title IX sexual harassment complaints should be handled. Unknown at the time of this writing is whether the administration will be influenced by these recommendations. As of this publication Secretary DeVos has met with representative survivors and their advocates, as well as those who claim to have been wrongfully accused. At a minimum we know that the topic has her attention. As this publication goes to print, Secretary DeVos has requested comments on de-regulation in “Enforcing the Regulatory Reform Agenda.” We can anticipate change, when and what is undetermined at this time.
Incorporated throughout this discussion will be the complications, as well as changes, that develop when the Title IX process is viewed through a criminal justice lens. Particularly explored, is how the stereotypes regarding women’s credibility forms the foundation of challenges faced by survivors of sexual assault who seek relief. The last section of this essay addresses proposed recommendations to address the needs of those accused as well as protecting the harmed student.
Drew, Margaret B., "It’s Not Complicated: Containing Criminal Law’s Influence on the Title IX Process" (2017). Faculty Publications. 189.
Forthcoming in the University of Tennessee Law School's Journal on Race, Gender, and Social Justice.