Survey Confirms Unfairness of Campus Title IX on Due Process

Education Secretary Betsy DeVos recently indicated that the process for creating fairer Title IX regulations has reached its final stages. As the new rules loom, the higher-ed establishment has demonstrated an almost uniform opposition to creating fairer Title IX procedures. The most recent example came from NASPA, the organization of student affairs officials.

Few organizations more enthusiastically supported the accuser-tilted status quo in Title IX adjudications. It, therefore, might seem surprising to read a report summarizing a new survey of student affairs professionals refuting “the common narrative that institutions are not concerned with responding parties’ rights in sexual misconduct cases.” Report authors Jennifer Henkle, Jill Dunlap, and Joan Tabachnick boast that their “study’s results portray a very different picture” than “narratives” that “paint institutions as being overly-concerned about the rights of survivors at the expense of the rights of respondents.”

In fact, the survey’s own data suggests the opposite conclusion—that, even before the formal adjudication process occurs, the Title IX process is deeply biased against the accused.

For instance, the survey showed that only 5% of schools have even one full-time employee to assist accused students; 85% have no budget dedicated specifically to providing services for accused students. Most schools conceded that their personnel (whether paid or volunteer) who did assist accused students spent only 1-3 hours per week on their efforts. Nine years after the Obama administration issued the Dear Colleague letter, the survey found that “most institutions are only just developing these programs,” and one college in eight either had no services for accused students or hadn’t yet implemented plans to do so. As Henkle, Dunlap, and Tabachnick conceded, “no established best practices currently exist, and most institutions are only just developing these programs, identifying what specific services are needed, and exploring what is equitable or equal.”

[2019 in Review in Accused Student Litigation]

Given the realities of a Title IX adjudication, it might be expected that schools would train their one or two people who provide services to accused students through to civil liberties organizations such as FIRE, defense attorneys, or groups such as FACE. Colleges and universities have taken a quite different approach: “94% of participants indicated that their institution offers in-house training.” Beyond that point, the report got deliberately vague. The authors, for reasons that the report didn’t explain, didn’t ask about the expertise of people offering training—or, critically, about the content of the training. The report suggested that “some” schools use “training from a national organization, or instruction from local organizations”—but did not identify these organizations.

“Survey participants,” the report reveals, “said that students primarily learn about respondent services through passive communications such as the institution’s sexual misconduct policies” or “the campus website.” Only 13% of colleges and universities have a staff member reach out “directly to responding parties about support services available.” In other words: accused students are on their own. Fear of the campus mob helps explain this strategy, according to the report’s authors: “Institutions may be concerned about announcing these services out of concern for overutilization of already overwhelmed campus resources or due to perceived pushback from members of the campus community who disagree with providing respondent services.”

Some of what NASPA members see as “services,” moreover, presume the guilt of the accused student. “What is missing from many strategies to address sexual harm on campus,” the report claims, “is a focus on those who have perpetrated sexual misconduct and those at risk to do so.” (Imagine a NASPA report listing as a potential pro-accuser “service” a focus on “those who make false claims of sexual misconduct and those at risk to do so.”) Incredibly, Henkle, Dunlap, and Tabachnick maintain that students “who are under investigation”—students who, even under the preponderance standard, must be presumed innocent—may “need specialized services,” such as assistance “to develop a deeper understanding of their behaviors and the trauma caused to others.” But if the student—who hasn’t yet been adjudicated guilty—did nothing wrong, why would he need “to develop a deeper understanding of their behaviors and the trauma caused to others”? The authors don’t say.

[Fake Claims of Rape Due to Trauma Are Under Scrutiny]

The issue of confidentiality is the most troubling aspect of the report. Nearly 6 in 10 schools do not provide fully confidential services to accused students. Twenty-three percent use material gleaned from any accused student for Clery Act reporting, while 36% provided no confidentiality at all. The criminal justice equivalent of such a system would be a defendant who spoke to a public defender—who then shared the information with the prosecutor. No wonder accused students distrust the campus Title IX bureaucracy.

Despite all of these problems, fully 91 percent of the survey respondents claimed that their schools provided equal or equitable treatment of accused students in the Title IX context. There’s no reason to doubt the sincerity of their responses. That a school without even one paid employee to look after accused students, where the “services” too often presume guilt, and where some schools won’t even promise confidentiality to accused students could be deemed “equitable” to the accused confirms the need for robust regulations to protest students’ rights.