Has the Title IX tide turned?

The Obama Education Department's Office of Civil Rights (OCR) has actually said that a college discriminated against a male student–expelling him for sexual misconduct without even bothering to interview him, just for starters.

This rebuke, aimed at Wesley College in Dover, Delaware, seems to be a virtual first for the OCR under President Obama, which has defined itself as exceedingly solicitous of female students claiming to be victims of sexual assault at the expense of basic fairness to the male alleged perpetrators. In 2011, for example, the OCR issued a "Dear Colleague" letter on the subject of sexual harassment to the nation's colleges and universities essentially forcing them to use a low-level standard of proof–preponderance of the evidence–in deciding whether sexual misconduct had occurred. The penalty for not complying could be a loss of federal funding  for the offending college under Title IX, a 1972 federal law forbidding sex discrimination by educational institutions accepting federal aid. Until this week, it is believed, male students who alleged they'd been unfairly disciplined in sex-miscondut cases have won relief from judges after suing their college in court, but the OCR itself has never granted relief to them.

Indeed, as Inside Higher Education reports:

 Over the last five years, the department’s Office for Civil Rights has opened Title IX investigations into nearly 200 institutions where students have accused administrators of mishandling their reports of sexual assault and harassment. Very few of those investigations were prompted by accused and disciplined students, and even fewer have concluded with a finding in those students' favor.

“It is the first time that the agency has found Title IX violations in response to a complaint by a disciplined student,” said Erin Buzuvis, an expert on Title IX and director of the Center for Gender and Sexuality Studies at Western New England University.

Here's what happened, according to the Washington Post:

The case involved a student expelled in April 2015, just before he would have graduated, after being accused of helping to set up and watch the live streaming of a friend engaged in sex with a female student. The sex was consensual; the live streaming was not.

So “inequitable” was the college’s treatment of the accused male student that the OCR, better known for its aggressiveness in protecting the rights of accusers, has forced the college into a settlement involving wholesale revisions of its adjudication process to make it fairer to those accused of sexual misconduct….

In summary, the student didn’t fully know precisely what he was accused of, the basis for the accusation or what recourse might be available to back up his claim that he was not responsible. Indeed, he was summoned to what he thought was a preliminary “educational” session, something informal, without knowing that it was a full-blown hearing that would determine his fate, a hearing for which he was completely unprepared.

The case stemmed, in brief, from a March 2015 report by two female students that a fraternity member had “live streamed himself engaged in a sex act,” consensually, with another female student “without her knowledge” and that three other male students had watched it and helped him set it up.

Read this laundry list of procedural misdeeds that the OCR says Wesley perpretrated:

  • Was “not given an opportunity to share” his version of events. Indeed, “he was not interviewed during the investigation of the complaint,” the OCR said;
  • Was “not provided with the opportunity to challenge evidence” used against him;
  • “Did not receive a copy of, or information contained in, the incident report prior” to a hearing on his case;
  • Was “not provided an adequate opportunity” to defend himself at the hearing or “a full opportunity to provide witnesses and other evidence;”
  • Was given almost no time to mount a defense;
  • And was misinformed and misled, to his detriment, about the adjudication process he confronted and the protections available to him.

Furthermore, the OCR pointed out, Wesley "destroyed records of the student’s case," making it impossible for the OCR to review the proceedings properly.

Wesley has agreed to revamp its procedures for student disciplinary hearings by way of settlement with the OCR. So it appears that the agency is at last exhibiting some of the same solicitude for those accused of sexual misconduct as it has exhibited overwhelmingly to accusers.