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Title IX: When The Defender Becomes The Attacker

In recent years, Title IX-an act designed to prohibit discrimination based on sex-has, ironically, been used to facilitate sex-based discrimination on college campuses. “Title IX” refers to Title IX of the Education Amendments of 1972 which states:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

It is under Title IX that universities investigate and sanction students for sexual misconduct violations. These investigations have seen a rise in universities policing “drunken hookups” as sexual misconduct because the complaining student asserts that he or she was too intoxicated to provide legal consent for sexual activity. These hearings typically result in suspension or dismissal for the student found responsible-most commonly the suspensions last until the complaining party has graduated and left campus.

As a recent article in The Atlantic discussed, by policing drunken hookups these Title IX university hearings created a standard that “infantilized college women, demonized male sexuality, and [were] responsible for harsh punishment meted out to an unknown number of college students, almost all of them male.” But as the article also discussed, a standard that only the male can be punished simply because the female filed a complaint, even though both students were intoxicated during sexual activity, may be coming to an end.

In Doe v. Miami University, 882 F.3d 579 (2018), the Sixth Circuit found that Doe had established circumstantial evidence of gender discrimination because Miami University only proceeded with sexual misconduct violations against Doe, a male student, even though it had evidence that alleged both Doe and the complainant, a female student, had been intoxicated and engaged in sexual activity. In other words, Miami University was not relieved from its burden of investigating the female student, under Title IX and its Code of Student Conduct, for sexual misconduct against Doe even though Doe did not file a complaint.

Title IX litigation has picked up in recent years as suspended or expelled students claim unfair treatment in the Title IX investigation and hearing process. These cases have resulted in many changes in how universities conduct their investigations and hearings. Sexual misconduct investigations and hearings are very complex and have the potential for life-changing outcomes for all parties involved.

It’s important to know what your rights are and to seek counsel from an attorney who understands the Title IX process and the student code of conduct of the university that is conducting the investigation and hearing. Any sexual misconduct investigation has the potential for civil and criminal liability outside of university disciplinary sanctions; it’s important to seek legal counsel as soon as possible to limit or avoid further legal proceedings.

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