Watch the CBSN Originals documentary “Speaking Frankly: Title IX” in the video player above. The full hour special premieres Sunday, November 24, at 8 p.m., 11 p.m. and 2 a.m. ET on CBSN.
Los Angeles — On a sunny August afternoon, a steady stream of phone calls poured into the small law office of Hathaway Parker. The firm specializes in representing students or faculty involved in a Title IX sexual misconduct investigation on campus. They typically represent respondents, or those who were accused of misconduct, though they have also represented complainants. The lawyers say they don’t think the process works very well for anyone involved.
“I don’t think anyone ever thought that colleges and universities would be adjudicating and holding court regarding sexual crimes in America,” says Mark Hathaway, a partner at the firm. “But that’s what it’s developed into.”
Title IX is a 1972 law that prohibits discrimination on the basis of sex in federally-funded educational institutions. Initially intended to ensure female students equal access to education as their male counterparts, it has since significantly expanded in scope.
“One of the best ways to think about Title IX is that in 1972, Congress threw a pebble into a pond [and] the ripples have continued outward for more than 40 years,” explains Brett Sokolow, a lawyer and the president of the Association of Title IX Administrators (ATIXA). “Through the 1980s, Title IX really came to be almost all about sports and equity in athletics. … In the 1990s, the courts again expanded Title IX when they were asked the question, ‘Would sexual harassment create a barrier to educational opportunities for women?’ The court said, ‘Yes.’”
The courts decided that schools have a responsibility to investigate cases of sexual misconduct, and those that aren’t in compliance risk losing federal funding. But critics say the federal government has not clearly mandated how schools should handle these cases, and guidance between administrations has been inconsistent, so educational institutions often interpret the guidelines differently.
“So in one school there may be decisions that tend to be victim-favoring, at another school there may tend to be a process that is favoring the respondent,” says Sokolow.
A former student in the California State University system who was accused of sexual misconduct claims the Title IX investigator found him responsible without providing him due process: “There was no sexual details so I wouldn’t even know what to say to that. I was completely denying it. It didn’t happen … I did everything I could, every single thing. I appealed everything. They still expelled me,” he said.
Even though sexual harassment and assault are crimes in the eyes of the law, Title IX investigations are not criminal investigations, and therefore do not abide by the same rules as those followed by a criminal court. According to 2011 guidance from the Obama Administration, only a “preponderance of evidence” is required to determine whether the accused is responsible and should be disciplined — a much lower standard than criminal courts require for a conviction. A judgment of guilt in a Title IX investigation cannot lead to an arrest or a criminal record for the accused, but it some cases it can result in expulsion from the school.
“The students have no right to an attorney. The evidence isn’t given to them until right before the hearing. Often times it’s heavily redacted. There’s unknown witnesses,” says Hathaway. “So it’s like the school prosecuting a student but the student is really left to fend for themselves and usually it doesn’t fare well for them.” Although Title IX cases are not criminal proceedings, the findings can have a significant impact on students’ futures, so an increasing number of those involved are bringing lawsuits against their schools.
According to Title IX For All, a database that tracks lawsuits filed by respondents in higher education Title IX proceedings, there are 140 active lawsuits against colleges and universities filed by students who say they were denied due process. But it’s not just the respondents who say the Title IX system is failing them.
Two female students, who were represented by Equal Rights Advocates (ERA) after filing Title IX complaints against fellow students for alleged rape, said that they found the process only compounded the trauma they suffered.
“Reporting it didn’t really help at all. It kind of made matters worse,” said one of the women, who filed a Title IX complaint in her freshman year and has since changed schools. She’s now in her senior year. “They switched the Title IX coordinator in the middle of my process. I had to restart the entire process. So that meant re-investigating everything, opening everything up. The statements that I had written before, all the times were wrong. The dates were wrong. … It seemed that nothing was being resolved, and it was kind of stagnant.”
“There’s never going to be a way to know in any individual case with complete certainty, probably, that a sexual misconduct act occurred,” said Brenda Adams, a senior attorney at ERA who represents complainants in Title IX cases. “But I think, again, the focus is not on whether or not someone was falsely accused of a crime. It’s more whether or not this particular type of school misconduct occurred. And whether or not it is interfering with the victim’s access to education.”
Lara Bazelon, a law professor at the University of California San Francisco, says Title IX investigations can be extremely complicated, and the system we have in place just isn’t helping.
“One thing I have come to believe is that both sides can be genuinely, equally convinced that their version of events is true. That one side really believes that the encounter was consensual, and the other side truly believes that it was not. And neither person is lying. And that makes these cases so incredibly difficult to litigate and also for anybody to decide,” she says.
“So that’s why I think we really need to look seriously at some kind of alternative to the way we’re doing things now, because I don’t think you’ll find anybody who is going to sit here and tell you with a straight face that what we are doing right now with Title IX on college campuses is working.”