A Law Turned Against Itself: A Case Study in Title IX

A recent Title IX lawsuit in the U.S. District Court for the Northern District of Illinois raises an interesting question of whether a law that was designed to prevent discrimination on the basis of sex now has the effect of encouraging it. After describing the history of Title IX’s application in American colleges and universities, this post discusses the recent court case and whether Title IX might now promote the kind of discrimination it was designed to prevent.

“Dear Colleague” and Due Process: A Background on Title IX

Title IX of the Education Amendments of 1972 forbids discrimination on the basis of sex in educational programs and activities that receive federal financial assistance. Among other things, it requires colleges and universities to ensure that male and female students have equal access to opportunities and benefits offered by the institutions, including scholarships, extracurricular activities, and athletics. Title IX is the main reason women’s athletic programs exist. In the 50+ years of Title IX’s existence, the understanding of “equal access” has come to forbid discrimination based on pregnancy and parental status.

Another expansion of Title IX is its application to student-on-student conduct such as sexual harassment and sexual assault. In 2011, the U.S. Department of Education Office of Civil Rights (OCR), the agency that enforces and interprets Title IX, published a “Dear Colleague Letter” (an OCR regulatory guidance document) notifying colleges and universities that they must implement policies and procedures for responding to students’ allegations of sexual harassment. According to the Dear Colleague Letter, Title IX requires schools to establish procedures for investigations and hearings. They must discipline students found to have engaged in sexual harassment. In the wake of the Dear Colleague Letter and subsequent OCR guidance, schools have implemented Title IX policies that many critics say deny basic due process rights to the accused.

In a criminal prosecution, a defendant has rights and protections: the presumption of innocence, trial by jury, representation by an attorney, cross-examination of witnesses, conviction only upon a unanimous verdict finding guilt beyond a reasonable doubt, and the right to appeal a verdict. However, in Title IX proceedings in colleges and universities, when a student is accused of sexual misconduct, he (usually a man) often has none of these rights. While Title IX proceedings do not impose criminal penalties, they do frequently result in expulsion, suspension, and other disciplinary measures that stain a student’s permanent record, destroy his reputation, waste his tuition money spent thus far, and blacklist him in the eyes of other schools and even prospective employers.

For these reasons, many have called these Title IX proceedings “kangaroo courts” that deprive accused students of due process rights. Because students accused, investigated, and disciplined for sexual harassment in these proceedings are lopsidedly male, some question whether Title IX’s requirements have resulted in a form of reverse discrimination. This approach may have transformed Title IX from a law designed to promote greater inclusion of women to one that is prejudicial against men.

John, Jane, and Justice: A Case Study in Reverse Discrimination under Title IX

A recent court case explores the question of whether Title IX sexual harassment proceedings actually undermine the very purpose of Title IX and result in unfair bias against male students. The facts are as follows: John Doe¹ was a male student at Rosalind Franklin University (“RFU”) in 2021. In November of that year, he attended an off-campus party at the home of another student named Jane Roe. He had several alcoholic drinks at Jane’s house and then went to a bar with Jane and others, where he had more drinks, as well as a marijuana edible. As a result, John became very intoxicated and blacked out. According to John, the next thing he remembered was waking up the next morning, fully clothed, on Jane’s couch.

It was not until the next week that Jane told John that the two had engaged in sex acts that night, of which John had no recollection. Jane told John that since he had not specifically asked her to affirmatively consent to the sex acts or asked her if she wanted to stop, he had committed sexual assault against her. Several months later, Jane filed a formal Title IX complaint of sexual assault with the RFU Office of Diversity, Equity, and Inclusion.

RFU investigators interviewed Jane and five other witnesses before John was even aware of the allegations. John was interviewed only a week before RFU issued its six-page report summarizing its findings, which concluded that Jane’s allegations were substantiated. The report had multiple errors such as incorrect dates and disclosing the names of witnesses. Communications from RFU’s Title IX investigators showed that they were operating on a presumption of John’s guilt. Fearing the prospect of an expulsion on his record, John began the process of withdrawing from RFU. He received approval of his withdrawal from RFU officials and decided not to participate in the Title IX hearing.

However, a few days later, RFU officials told him that his withdrawal status would not be approved and that the Title IX hearing would proceed. At this hearing (which was virtual), Jane’s advisor was allowed to cross-examine witnesses, but his advisor was not. John and his advisor were barred from even hearing the testimony of Jane and her witnesses. The hearing also heard and considered testimony about John’s character, which would be inadmissible evidence in court. The panel hearing the case determined that John had violated RFU’s Title IX policy by engaging in sexual violence. He was expelled and his appeal to other RFU officials was dismissed.

John sued RFU in federal court, claiming that it was the university, not him, that had violated Title IX, because RFU had conducted a shoddy investigation and a biased hearing by investigators and officials that were prejudiced against him because he was male. John argued that this overt anti-male bias, as demonstrated through investigative and procedural irregularities as well as by officials’ own biased language, was sex discrimination in violation of Title IX.

RFU filed a motion to dismiss John’s lawsuit, arguing that his claims lacked merit as a matter of law. In September of 2023, the federal judge granted RFU’s motion and dismissed John’s Title IX claim, ruling that even if the allegations against him were false, even if he was denied due process, and RFU’s procedures put a thumb on the scale for victims and against the accused, this established only a “pro-victim” or “pro-complainant” bias and not a “pro-female” or “anti-male” bias. Since both men and women could technically be victims of sexual violence, so the judge reasoned, a school conducting Title IX proceedings that were biased and prejudicial against the accused was not necessarily sex discrimination. The court therefore dismissed John’s lawsuit.

Treatment vs. Impact; Form vs. Substance

The decision in John’s case is a recent addition to other decisions across the federal courts that grapple with the issue of fairness in university Title IX proceedings. The judge in John’s case followed a formalist line of decisions concluding that “a pro-victim bias is not sex bias.”² However, other courts have followed a more realist approach that recognizes that “the majority of accusers of sexual assault are female and the majority of the accused are male, therefore enforcement is likely to have a disparate impact on the sexes.”³

Under other federal anti-discrimination laws, sex discrimination can be established not just by unequal treatment but also by a disparate impact between the sexes.⁴ The case discussed above shows that some courts are more interested in form than substance and will permit discriminatory outcomes under Title IX so long as there is a possibility that both sexes can be subjected to the same unfairness due process deprivations. However, decisions like this leave some wondering if Title IX policies on American campuses actually have a different and unfair negative effect on male students. These people may feel that proceedings ought to be fair regardless of the gender of the participants.

Recommendations

For colleges and universities that have Title IX proceedings (and for parents and students considering schools to attend), here are some considerations. Policies should establish investigations as neutral, not presuming guilt or innocence, and not biased in favor of either alleged victim or accused. They should provide for investigative practices that will likely result in a neutral investigation, such as talking to witnesses from both sides, gathering all documents, and so forth. Given the possible life-changing impact of the hearing, it should be set up in a fair and impartial way. This includes choosing impartial and well-trained hearing officers, allowing representation of both parties, allowing cross-examination by both parties, allowing a person to confront his accuser, and requiring basic evidentiary standards. There should also be a way to appeal the results of the hearing. If the Title IX policies appear to be fundamentally unfair, parents and alumni may want to consider putting pressure on the institution to reform its policies.

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¹ For purposes of respecting the parties’ anonymity, the post will refer to them by pseudonyms.

² Doe v. Loyola Univ.-Chicago, No. 20 CV 7293, 2021 WL 2550063, at *7 (N.D. Ill. June 22, 2021).

³ Austin v. Univ. of Or., 205 F. Supp. 3d 1214, 1225 (D. Or. 2016).

⁴ E.g., employment discrimination under Title VII of the Civil Rights Act.

Featured Image by Rebecca Sidebotham.