Photo by Cody Goodin, via Flickr

September 27, 2017 Mollie Finnegan 1Comment

The way in which universities handle sexual assault cases is a problem.

Passed in 1972, Title IX was included in the Educational Amendments, which prohibited any discrimination in federally funded education and athletic programs based on gender. Signed into law by President Nixon, Title IX has mostly been recognized for the impact made on sports programs in both high schools and colleges, despite the original legislation never specifically mentioning athletics. Today, Title IX has been driven less by sports and more by the ongoing pressure surrounding universities and sexual assaults.

Currently at the University of Cincinnati, the administration is facing two opposing lawsuits regarding sexual assault and the application of Title IX. One lawsuit argues that the school violated the Title IX requirement of removing accused students in a timely manner, which resulted in the university becoming a “hostile environment” for the victim. On the other side, the accused is suing because he claims the school overlooked his evidence proving his innocence, which resulted in his expulsion.

These separate lawsuits have brought up several questions regarding the school’s responsibility to their students, their role as enforcer of the law, protector of the accused, and the difference between the American justice system and the University’s own code.

In the 2011 letter sent out to universities across the nation from the Obama Administration’s Department of Education later dubbed the “Dear Colleague” letter, schools were instructed to handle reports of sexual assault and investigate as they saw fit, provided it was “fair and impartial.” Nothing was explicitly spelled out for the schools, nor were there guidelines put into place to set a standard of practice. This is the first issue that I see with this implementation of Title IX.

Each university is attempting to handle very delicate situations in the dark with little guidance from the federal government. This means universities are able to pick and choose how they handle these procedures and are safe to plead ignorance when they fail. There is no uniform way to conduct investigations following a report of sexual misconduct — which means that it could become a trial and error situation for many schools. These are people’s lives being indefinitely impacted, and cannot afford the risk of being one of those “learning experiences.”

Don’t believe that many universities have become paradoxical in their handling of sexual assault cases? Secretary of Education, Betsy DeVos, recently referenced multiple cases in which the universities in question handled the case about as poorly as one can imagine. At Stony Brook, a victim was forced to prosecute the case on her own. At USC, a bystander mistook a couple roughhousing, for sexual assault. Despite the female adamantly insisting it was not assault, the University continued its witch-hunt and kicked the male out of school. Or, take the instance at UMass-Amherst where students had Title IX violations filed against them for making Harambe jokes. It is clear that Title IX offices have strayed too far from working in tandem with the justice system, and have entered the realm of insanity in the pursuit of making campus a “safe space.” To read more outrageous cases, click here.

“The right to a fair trial is not necessarily guaranteed among the university’s ‘Kangaroo Courts’ because the proceedings are rather rushed, relative to our court system.”

Another issue that Title IX has brought into play is choosing one side of the issue over the other. In the eyes of the law, both sides of a crime have rights and must be protected. In the accuser’s lawsuit, the school is facing charges due to their delayed removal of the accused student following the filing of the complaint. On the other side, the accused would have been immediately removed from the university based on the accuser’s report. The right to a fair trial is not necessarily guaranteed among the university’s “Kangaroo Courts” because the proceedings are rather rushed, relative to our court system. This issue is not a simple one to solve. Naturally, the first instinct of the administration is to protect the victim, but then the rights of the accused could be usurped. Perhaps this legal issue is not something that should be handled by administrators, but instead the legal system.

Following that assertion comes another concern that has arisen from the particular situation the University of Cincinnati is facing. While each school has a different protocol for handling reports of sexual misconduct, the Title IX office at UC — sometimes aided by the UC police — will investigate the situation in question. Due to the “Dear Colleague” letter, this process is not always the “innocent until proven guilty” protocol we all learned about in regards to the American court system. Instead, it is determined by the accuser’s party providing more evidence than the accused.

Another issue that perturbs me about this system is that the accused student is not allowed to have legal counsel represent them in these hearings. This “court system” set up by Title IX largely ignores the Sixth Amendment. How can a university set up its own laws and court system when the crimes being investigated are indeed crimes meant to be solved by way of the justice system? Considering the University of Cincinnati is a public institution, it does not appear that it can separate itself from public law, in favor of their own protocol. Just as the First Amendment is being argued across the nation, in which UC has made clear they support the right of students — after being sued in the nation’s highest court — to exercise that right, why not the Sixth?

On the other hand, how is it that with over 87 reports of sexual assault on the University of Cincinnati’s campus in 2015 — as reported by the university — only four students were found “guilty” of these complaints in a court of law? It seems that both sides have serious flaws in terms of protecting students who have been assaulted while also protecting the individual rights of all students. Title IX has provided many vague ideals for achieving equality for all students, while increasing the issues universities have to face in terms of creating their own codes and enforcing their laws outside of the justice system.

It is absurd to think that public universities can usurp the law and deal with legal issues as they please. Sexual assault cases are hard enough for the justice system to handle (due to the “he-said, she-said” nature of many cases), and each case must be dealt with on an individual basis so that it remains impartial for all parties involved. Schools are now, with the help from Title IX, conflating support for victims and unlawfully punishing the accused. Both accuser and accused need to know the implications of their actions, and the only “fair” way of proceeding in these situations is to go through the proper legal channels. This is not to say that Title IX offices cannot be effective, but in order for that to happen, they must work in tandem with the proper authorities. When in doubt, we should fall back on “innocent until proven guilty” as that is a basic tenet of our criminal justice system. 

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  • TZ

    Thanks for an excellent article. It boggles the mind to try and understand why Universities are asked to step in for the court system.