Will a Campus Lawsuit Spell Doom for Title IX?

Title IX has been used and abused by the Obama administration.

Now, Reason magazine writer Robby Soave argues that a lawsuit by a former University of Virginia student could destroy Title IX. Soave writes:

His lawsuit is a direct challenge to the legality of the campus kangaroo courts the federal government claims are required under Title IX. Lawyers representing the student, John Doe, argue persuasively that he would have been found innocent of wrongdoing if not for the Obama administration's insistence that universities adjudicate sexual assault under the preponderance of evidence standard.

This makes Doe's lawsuit the strongest legal assault on Title IX to date. If successful, it could undo some of the damage wrought by OCR's crusade to remove elements of due process from campus rape trials.

"This lawsuit is targeting the cause, and not just the symptoms, of the complete lack of due process on campus," Justin Dillon, legal counsel for Doe and a partner at the firm KaiserDillon PLLC, told Reason.

Title IX is merely a 1972 statute banning sexual discrimination in educational institutions receiving federal funds. Nothing wrong with that. But over the years, the statute has been used to justify all sorts of practices. The Obama administration invoked it to set up new guidelines for handling accusations of sexual misconduct on campus.

The administration promotes a "preponderance of evidence" standard in deciding campus accusations. If the accusation ended up in a court of law, the usual standard in Western jurisprudence is "beyond a reasonable doubt." But the administration makes going to law enforcement–which is far better at investigating such allegations than a campus tribunal–optional.

That means tribunals, mindful of federal funding, are using a lower standard to adjudicate such cases.Soave explains:

To understand why this lawsuit is such a threat to the government, it's necessary to understand how [the Office of Civil Rights in the Department of education] has evolved over the years. Prior to 2011, the office had never held that Title IX—a one-sentence statute forbidding sex discrimination in schools—required educational institutions to adopt the preponderance of evidence standard in sexual assault disputes.

Recall that the preponderance of evidence standard only requires 51 percent certainty that misconduct took place. While it is used in civil cases, criminal cases require a much higher burden of proof: the beyond-a-reasonable-doubt standard. (Campus sexual assault disputes, of course, are neither criminal nor civil cases—they aren't proper legal proceedings at all.)

It's important to note that the preponderance of evidence standard is the only aspect of civil court cases that OCR obligates universities to institute. In civil cases, for instance, plaintiffs and defendants are granted the critical right to cross-examine each other. Students have no such right in university misconduct hearings. In fact, OCR's guidance discourages cross-examination, and in several cases, OCR has explicitly forbidden universities from allowing cross-examination, according to the lawsuit.

Requiring a lower standard of proof—but failing to require, or explicitly excluding, rights that counterbalance this lower standard—was clearly a substantial shift for the government. But federal agencies aren't allowed to make up new rules out of nowhere: they are required under the Administrative Procedure Act to ask citizens to weigh in, subjecting the new rule to a public comment period.

Doe's suit claims that the outcome of his case was affected by the lower standard.

He was accused by a female student, Jane Roe, who claimed that she had consumed enough alcohol that she was unable to give consent. She said the incident occurred in August of 2013. She came forward a year and a half later. Doe claimed that Roe didn't appear incapacitated. The accusation was adjudicated in January of this year.

Doe was prevented from graduating from law school on time and lost out on a job that was contingent on graduation. When the hearing finally came, a former Pennsylvania supreme court judge presided. Soave explains that the OCR standards may have been a key factor:

According to the lawsuit, she specifically referenced the low evidence threshold as the reason for the finding of responsibility. If a higher standard had been in effect, the justice would have very likely come to a different determination, she said.

Doe received his law degree this year, but is banned from ever setting foot on V-Va property and must undergo four months of counseling. U-Va is one of almost two hundred institutions of higher education being investigated by OCR over Title IX issues. If the university is found to have come up short of OCR standards in these cases, Doe could, at least in theory, receive further penalties.

We blogged earlier about a Harvard law professor's article arguing that two interpretations of Title IX used by the Obama administration are on a collision course.  

I can' tell from Soave's excellent piece whether Title XI is threatened or merely the various interpretations it has been given over the years.