How much of the failure to grasp current controversies over campus Title IX investigations come from seeing two sides even though they are demanding similar measures? Many from both camps, seemingly in frustration, suggest all campus Title IX investigations should be delegated to local police and prosecutors. That approach is not consistent with Title IX, but support for it suggests concerns with the current tools for addressing on-campus sexual violence.
The criminal justice system gives both victims and defendants lots of information about what is going to happen, when and why, what will be required of them and what protections will be afforded to them. Local police and prosecutors are bound by centuries of common law, codified in a relatively simple format, and must act in very consistent and predictable ways. Attempts to graft portions of criminal law into a campus Title IX jurisprudence come from a desire that all parties have access to a fair, predictable and open system. Although a wholesale grafting of criminal law and procedure into Title IX proceedings is inappropriate given the very serious differences in context, all students deserve reliable procedures consistent with due process.
In 2012, 45% of colleges with more than 1,000 students reported zero sexual assaults. The popular website Jezebel reported this fact in an article pointing out the extreme implausibility that almost half of American campuses had no incidences of sexual violence within any given year. This take is relatively indicative of how many young people, especially potential victims, see the current Title IX regime – hostile, opaque and oriented toward administrative statistic-gathering rather than valid safety concerns. Ask a woman in her 20s or 30s whether she thinks that almost half of campuses had zero sexual assaults in 2012 or in any year. The statistic, as Jezebel so bluntly observes, is not credible.
At the same time, people who have been accused of on-campus sexual violence have also made seemingly legitimate complaints about opacity and arbitrariness in Title IX proceedings. Students have complained they have been suspended without the option to appeal, and recently, a superior court judge in Los Angeles overturned the suspension of a UC San Diego student for sexual misconduct, ruling the university’s hearing was unfair for, among other issues, failing to allow sufficient confrontation of witnesses against the accused.
Although the criminal justice system is far from perfect and is sometimes forbidding and difficult to navigate for survivors of sexual violence, its reliability and independence does offer some advantages that could and perhaps should be assumed in on-campus proceedings. Until the field has established best practices that offer students, their families and representatives reliability and fair proceedings, sexual violence on campus will remain severely under-reported and campuses will be exposed to lawsuits from participants who complain of arbitrary or obtuse treatment.
Co-Written by Hon. Jane Cutler Greenspan (Ret.) and Henry M. Sias.
Hon. Jane Greenspan (Ret.) is a JAMS neutral, based in Philadelphia. She routinely serves as an arbitrator and mediator in complex commercial, labor, financial and business disputes, as well as an adjudicator in a number of College and University Title IX cases. She can be reached at email@example.com.
Henry M. Sias, Esq. is a practicing attorney and served as a law clerk to Justice Greenspan.
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