What went wrong with Title IX?

• Author: Bagenstos, Samuel R.

THE OBAMA ADMINISTRATION ROLLED OUT SOME GOOD REGULATIONS ON SEXUAL ASSAULT AND HARASSMENT. THEN IT FORGOT TO EXPLAIN THEM TO COLLEGES.

In response to alarming statistics indicating that sexual violence is widespread at colleges and universities--and growing pressure from activists to do something about it--the Obama administration's Department of Education has taken aggressive steps to enforce Title IX of the Education Amendments against sexual harassment and violence on campus. And if press reports and the chatter of professors and administrators are to be believed, the results have been disastrous: students accused of rape being tried by kangaroo courts; a prominent feminist professor subject to interrogation by lawyers for writing an op-ed criticizing new restrictions on sex between teachers and students; and even a tenured professor being fired for saying "Fuck no" in class. Another example of well-intentioned government regulation gone horribly awry!

But the story is not so simple. To blame are two bureaucracies, one at the federal level, the other within individual colleges and universities, each emphasizing compliance over communication and common sense. Universities, perhaps stung by being called out on their prior inaction, overreached by allowing a class of professional campus administrators, insulated from the classroom, to pursue a maximally risk-averse strategy that went way beyond what the federal government was calling for and that put important values of academic freedom and fair process at risk on their campuses. At the same time, regulators in Obama's Department of Education failed to do the early outreach that would have allowed them to see this overreaction coming, and compounded that mistake by failing to emphasize the limits as well as the requirements of Title IX. By so doing the department has threatened to bring into disrepute its own crucial effort to rid campuses of sexual violence and harassment.

Best known for its effects in promoting women's sports, Title IX in fact prohibits all forms of sex-based discrimination--including sex-based violence--on campus. But court decisions have made it very difficult for individual targets of discrimination to enforce that prohibition. And the Department of Education historically has not used its enforcement authority aggressively against sexual harassment and violence.

All of that has changed in the Obama administration. In administrative pronouncements issued in 2011 and 2014, the department's Office for Civil Rights (OCR) emphasized and elaborated on schools' obligations to prevent sexual harassment and assault. As of April 2015, the OCR was investigating more than 100 schools regarding their handling of cases involving sexual violence.

Critics have leveled a growing bill of particulars against the new enforcement efforts. In October 2014, twenty-eight professors at Harvard Law School--representing positions across the political spectrum--signed an open letter opposing Harvard University's new procedures for handling complaints of sexual misconduct. The faculty members alleged that those new procedures, prompted by the Department of Education's actions, "lack the most basic elements of fairness and due process" and "are overwhelmingly stacked against the accused."

These and other critics have focused, in particular, on the procedures' requirement that university adjudicators apply only a preponderance-of-the-evidence standard for determining whether an accused individual is responsible for sexual misconduct. Under that standard, which generally applies in civil suits in the United States, the defendant is liable if the adjudicator determines that there is a more than 50 percent chance that the defendant has committed the act with which the plaintiff charged him. That standard is a far less stringent one than the beyond-a-reasonable-doubt requirement that applies to criminal prosecutions. Yale Law School professor Jed Rubenfeld argues that the application of the preponderance standard makes " [m]istaken findings of guilt" a "real possibility." Echoing the views of many administrators, he suggests that campus procedures for handling sexual assault claims should be designed to channel those claims to the criminal justice system, where presumably expert investigators and prosecutors can handle them properly.

Other critics have focused on perceived excesses in universities' investigations of alleged harassing remarks by faculty and students. Northwestern University's treatment of professor Laura Kipnis has served as a prime example. A cultural critic, Kipnis published a widely noted essay in February 2015 arguing that universities' recent moves to prohibit sexual relationships between faculty and their adult students had gone too far. In the course of her essay, Kipnis discussed a recent case at Northwestern in which an undergraduate student accused a professor of unwanted sexual contact and charged that the university's sanction (denying the professor a raise and stripping him of his named chair) was insufficient. Without naming any names (though linking to a...