As an aspect of its prohibition on sex discrimination, Title IX of the Education Amendments Act of 1972 requires educational institutions that receive federal funding to engage in a “prompt and equitable” response to reports of sexual harassment, including sexual violence. In the last five years, the Department of Education has increased its efforts to enforce this requirement, both resulting from and contributing to increased public attention to the widespread problem of sexual assault among students, particularly in higher education. The increase in both enforcement and public attention has motivated colleges and universities to improve their policies and practices for addressing sexual assault, including their disciplinary processes. More students are being disciplined as a result.

Not surprisingly, this increase in discipline for sexual assault has correlated with an increase in litigation by students who have been disciplined for sexual assault under Title IX. In some cases, disciplined-student plaintiffs have prevailed in overturning their punishment, causing many to suggest that colleges and universities are “overcorrecting” for earlier deficiencies in their procedures that lead to under-enforcement of campus policies banning sexual misconduct. Much of this rhetoric places blame on Title IX for universities’ problems with compliance and calls, either implicitly or expressly, for repeal of Title IX’s application to sexual assault.

This framing of Title IX is both misleading and problematic. Individual stories and cases of procedural error and bias, or allegations of procedural error and bias, in sexual assault hearings are often presented as evidence of a trend that universities have abandoned procedural fairness in order to comply with the new requirements of Title IX. It does seem accurate to suggest that litigation involving students disciplined for sexual assault occurs more frequently today than before the present era of increased enforcement, which effectively began when the Department of Education’s 2011 Dear Colleague Letter clarified the institutional response required under Title IX to reports of sexual assault. Yet, by clarifying the government’s expectations for colleges and universities under Title IX, the Dear Colleague Letter motivates institutions to make sexual assault easier and more comfortable for victims to report and to improve their policies and procedures for addressing the reports of sexual assault that they receive. It is possible, therefore, that students disciplined for sexual assault are just as litigious as they were prior to the Dear Colleague Letter—there are simply more of them today. This is not because of problems that the Letter caused; rather, it is because of the problems it corrected.

Moreover, the cases in which disciplined students have succeeded on the merits of their claims cannot serve as evidence of a widespread problem without proper context. When contextualized, statistics place those victories within the larger number of cases that universities win on motions to dismiss or summary judgment, the unknown number of cases in which universities impose discipline that is not litigated, and the additional unknown number of cases in which campus disciplinary proceedings do not result in discipline in the first place.

Finally, the rhetoric of Title IX blame fails to recognize that in cases in which disciplined students have prevailed, the winning arguments have not been anti-male bias, which might suggest a problem that is systemic instead of isolated. Nor have disciplined students prevailed on any procedural argument targeting anything that the Department of Education has required institutions to do as part of a Title IX-compliant response to sexual assault. Nothing in Title IX requires or encourages colleges and universities to violate the due process or contractual rights of students who are accused of sexual assault.

This Article examines the recent spate of disciplined – student cases in an effort to harmonize Title IX compliance with the procedural rights of students who are accused of sexual assault. First, by way of background, it describes and provides historical context for Title IX’s application to the problem of sexual assault on college and university campuses, as well as the requirements the law imposes on the educational institutions within its scope. Next, it describes the role that Title IX plays in disciplined-student cases themselves. As Part III illustrates, it is popular for disciplined-student plaintiffs—who thus far have all been male—to argue that the college or university’s decision to discipline them was tainted by “reverse” sex discrimination prohibited by Title IX. However, even as some courts have determined such claims meet the bare minimum of proper pleading, reverse discrimination claims have yet to prevail on the merits. Part IV describes how disciplined-student plaintiffs have had comparatively more success challenging disciplinary procedures and outcomes using due process, administrative law, and breach of contract claims. This Part also notes that cases in which disciplined students have successfully argued due process, administrative law, and breach of contract claims do not create legal obligations for defendant institutions that conflict with Title IX’s requirement to engage in a prompt and equitable response to sexual assault on campus. For these reasons, the Article argues in its final part that neither the fact of litigation by disciplined students nor the examples of their occasional success undermines Title IX and its application to sexual assault. Procedural fairness is an important component of all campus disciplinary hearings, and litigation is an appropriate response to ensure that universities do not commit material errors in disciplining students for sexual assault. However, such litigation should not be viewed as evidence of a problem with Title IX or a reason to withdraw universities’ responsibility to engage a prompt and equitable response to campus sexual assault.

Read the full article including footnotes.

Erin E. Buzuvis, Title IX and Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine the Role of Title IX in Campus Sexual Assault, 78 Mont. L. Rev. 71 (2017).

Erin E. Buzuvis

Western New England University School of Law

Erin Buzuvis is the Director, Center For Gender and Sexuality Studies and Professor Of Law at WNE School of Law. Professor Buzuvis researches and writes about gender and discrimination in education and athletics, including such topics as Title IX's application to campus disciplinary proceedings for sexual assault, Title IX and college athletics reform, intersecting sexual orientation and race discrimination in collegiate women's athletics, retaliation and related discrimination against female college coaches, and participation policies for transgender and intersex athletes. Additionally, she is a co-founder and contributor to the Title IX Blog, an interdisciplinary resource for news, legal developments, commentary, and scholarship about Title IX's application to athletics and education.


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