By: Meaghan Mixon
In 1972, Title IX of the Education Amendments of 1972 was enacted to prevent sex-based discriminatory practices from occurring in education programs or activities that benefited from federal funding. With the advent of Title IX, equality in education, athletics, and other extra-curricular programs became a more common reality in America. Schools were, and still are, required to ensure that females and males had equal access to everything from locker rooms to scholarships. More recently, Title IX has been expanded to preclude gender-based discrimination against transgender students as well.
Title IX has also had a hugely beneficial role in the development of campus policies centered on sexual assault prevention and reduction. A predominant guiding principle behind Title IX is that all students are entitled to pursue their education in a safe and nondiscriminatory environment, absent the threat of sexual assault. Furthermore, the Office of Civil Rights in the Department of Education (“OCR”) instructs that schools must make diligent efforts to comply with specific procedural requirements, but also remain respectful of due process rights guaranteed to each party when resolving complaints. OCR gives a great deal of guidance and resources, but stops short of demanding specific bright line policies, leaving schools a great deal of leeway to fashion their respective policies as they deem fit.
Schools continue to struggle with formulating policies that strike the balance between compliance, reasonableness, and workability, particularly with respect sexual assault complaints. This struggle is evidenced by the multitude of high-profile Title IX claims filed by sexual assault survivors against universities for mishandling of their respective cases. Since female undergraduate and graduate students are five to four times more likely to experience rape or sexual assault than their male counterparts, most of these cases involved female survivors bringing suit. Survivors often allege universities have mishandled suits with negligence or deliberate indifference for the circumstances. Expectedly, such suits garner the unwavering attention of national media outlets, much to the chagrin of the named institutions. The result has been a fervent effort by universities to better manage sexual assault complaints. However, a new subset of cases has been introduced into the panoply of Title IX litigation. Increasingly, male students are bringing Title IX sex discrimination claims alleging university sexual assault policies and investigations have run afoul of their due process rights.
Title IX claims on behalf of males are not unheard of. Joe Hogan successfully brought suit against Mississippi University for Women (MUW) after he was denied admission to the nursing program as a degree seeking student solely on the basis of sex. MUW argued, inter alia, that male presence in the classroom would undermine female students’ educational experience and ultimately threaten career opportunities in the nursing field. The school’s argument failed when MUW could not show that males’ admittance as degree seeking students would cause either.
This recent string of Title IX claims differ from Hogan in that they allege discrimination by way of punishment or removal rather than a denial of admission. Male complainants contend that in an effort to avoid Title IX federal investigations and loss of funding, universities have taken to hasty investigations that disregard exculpatory evidence, deny students legal counsel, held truncated and bias-laden hearings, then ultimately handed down inequitable sanctions. All in violation of their due process rights. At first blush these cases seem balk worthy in light of Title IX’s traditional usage. However, several complainants have emerged successful, securing settlements upwards of $245,000 from University of Montana, Swarthmore College, University of Southern California, and University of Colorado – Boulder.
The ultimate effect of such cases on Title IX precedence is yet to be determined as they are few in number, still advancing through the court system, and frequently result in dismissals or settlements. However, in John Doe v. Columbia University the U.S. Court of Appeals for the Second Circuit has offered some semblance of the potential precedent to come. Doe alleges that Columbia’s Title IX Investigator conducted a hostile and exceedingly biased investigation that resulted in his one year suspension. In support, Doe describes a harrowing account of the school’s indifference to his report of assaults prompted by the allegations, his repeated attempts to correct erroneous information recorded by the Title IX investigator, a poorly contrived investigation report, and an ostensibly inept and painfully biased disciplinary hearing. Despite the breadth of allegations and the generous standard of view Doe’s favor, Columbia’s initial motion to dismiss was granted without discussion or explanation. But on appeal the Second Circuit vacated and remanded for further proceedings. As this vein of cases continues to develop, there will inevitably be tension between upholding discrimination free educational environments, and avoiding practices that may revictimize survivors or encourage victim blaming approaches and rape culture on college campuses.
What’s perhaps equally concerning, is the disconcerting air of uncertainty that the current administration brings to Title IX regulation and jurisprudence. The current nominee for Department of Education secretary, Betsy DeVos, side stepped questions about upholding Title IX sexual assault guidance in its current state at her January 2017 Senate confirmation hearing. With a president embattled and heavily criticized for sexually harassing and assaulting women, it’s unlikely that the development of robust Title IX protections for sexual assault survivors will continue. Tragically ironic is the thought that, were he a male student facing similar allegations, the Title IX regulations DeVos seems postured to whittle away at would lay the groundwork for his most likely course of redress.
 See 20 U.S.C. §§ 1681–88 (2016); 34 C.F.R. § 106.100 (2017); 28 C.F.R. Pt. 54.100 (2017).
 See U.S. Dep’t. of Justice, Equal Access to Education: Forty Years of Title IX 2 (June 2012), https://www.justice.gov/sites/default/files/crt/legacy/2012/06/20/titleixreport.pdf. [hereinafter DOJ, Equal Access]
 See DOJ, Equal Access, supra note 2, at 2-4.
 See Vanita Gupta & Catherine E. Lhamon, Dear Colleague Letter on Transgender Students, U.S. Dep’t. of Justice & U.S. Dep’t. of Educ., 2 (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. [hereinafter Gupta & Lhamon, Colleague Letter: Transgender].
 See DOJ, Equal Access, supra note 2, at 6-7.
 See DOJ, Equal Access, supra note 2, at 1-2.
 See Russlynn Ali, Dear Colleague Letter: Sexual Violence, U.S. Dep’t. of Educ., 12 (April 4, 2011), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf [hereinafter Ali, Colleague Letter: Sexual Violence].
 See Ali, Colleague Letter: Sexual Violence, supra note 7, at 12-9.
 Nick Anderson, At first, 55 schools faced sexual violence investigations. Now the list has quadrupled., Wash. Post: Grade Point (Jan. 16, 2017), https://www.washingtonpost.com/news/grade-point/wp/2017/01/18/at-first-55-schools-faced-sexual-violence-investigations-now-the-list-has-quadrupled/?utm_term=.e63a010950bc.
 See Diana Moskovitz, Why Title IX Has Failed Everyone On Campus Rape, Deadspin (July 7, 2016), https://deadspin.com/why-title-ix-has-failed-everyone-on-campus-rape-1765565925.
 See Campus Sexual Violence: Statistics, RAINN: Rape, Abuse & Incest National Network, https://www.rainn.org/statistics/campus-sexual-violence (last visited Jan. 28, 2017).
 See Moskovitz, supra note 10.
 See Moskovitz, supra note 10.
 Risa Lieberwitz et al., The History, Uses, and Abuses of Title IX 73 (2016), https://www.aaup.org/file/TitleIXreport.pdf.
 Max Kutner, The Other Side of The College Sexual Assault Crisis, Newsweek (Dec. 10, 2015), https://www.newsweek.com/2015/12/18/other-side-sexual-assault-crisis-403285.html.
 Mississippi University for Women v. Hogan, 458 U.S. 718, 721 (1982).
 Id. at 730.
 Id. at 731.
 See Kunter, supra note 15.
 See, e.g., Amended Complaint at 7-11, Wells v. Xavier Univ., 2013 WL 6076350 (S.D. Ohio 2014) (No. 13-CV-575) (alleging defendant institution deprived him his due process rights
 See, e.g., id. at 19.
 See Lieberwitz et al., supra note 14 at 70-5.
 See Sarah Kuta, CU-Boulder paying ‘John Doe’ $15K to settle Title IX lawsuit stemming from sexual assault case, ColoradoDaily.com: Campus News (Feb. 20, 2015), https://www.coloradodaily.com/cu-boulder/ci_27566071/cu-boulder-paying-john-doe-15k-settle-title; Michael E. Miller, Montana quarterback receives $245K settlement for university’s ‘unfair and biased’ rape investigation, Wash. Post: Morning Mix (Feb. 17, 2016), https://www.washingtonpost.com/news/morning-mix/wp/2016/02/17/montana-quarterback-receives-245k-settlement-for-universitys-unfair-and-biased-rape-investigation/?tid=a_inl&utm_term=.e05c99eeeb3b.
 See Kunter, supra note 15.
 See Doe v. Colum. Univ., 831 F.3d 46, 56-9 (2d Cir. 2016) (noting that Doe’s allegations offered ample support of bias on the basis of gender by university and the individual Title IX investigator, and, moreover, that defendant institution was not shielded from liability for investigator’s actions).
 See Complaint at 2-5, Doe v. Colum. Univ., 2014 WL 6471520, (S.D.N.Y. 2014) (No. 14CV03573).
 See id. at 15-21, 25-28.
 Judgment, Doe v. Colum. Univ., 2015 WL 6868962 (S.D.N.Y. 2015) (No. 14 CIVIL 3573).
 See Doe, 831 F.3d at 59.
 See Kayleigh Roberts, The Psychology of Victim-Blaming, The Atlantic (October 5, 2016), https://www.theatlantic.com/science/archive/2016/10/the-psychology-of-victim-blaming/502661/
 See Katie Van Syckle, Here’s What a Trump Administration Could Mean for Campus Sexual Assault, NY Mag: The Cut (January 18, 2017), https://nymag.com/thecut/2017/01/what-a-trump-administration-means-for-campus-sexual-assault.html.
 See Van Syckle, supra note 31.
 David A. Graham, The Many Scandals of Donald Trump: A Cheat Sheet, The Atlantic (Jan. 23, 2017), https://www.theatlantic.com/politics/archive/2017/01/donald-trump-scandals/474726/
 See Van Syckle, supra note 31.
 See Graham, supra note 33; Van Syckle, supra note 31.