Due process, gender equality, and the shadow of Title IX

In my previous post, we asked an important procedural legal question: what burden of proof should schools and universities use to adjudicate student misconduct cases? Alas, there is a trade off between accuracy and fairness, between truth and error. The classic illustration of this delicate trade off is the “proof beyond a reasonable doubt” standard in criminal cases: the higher the burden of proof is, the more likely a guilty man will go free, but at the same time, the more difficult it will be to convict an innocent person. (Or as the great English jurist William Blackstone once said: “It is better that ten guilty persons escape than that one innocent suffer.”) In civil cases, by contrast, the burden of proof is much lower: the plaintiff wins if they are able to prove their case by a “preponderance of the evidence.” A lower burden of proof like the preponderance standard makes it easier to prove one’s case, but such a low standard also makes it more likely that an innocent person might be found guilty.

In theory, a private business should be free to choose what burden of proof to use when making internal decisions, but as we saw in a previous post, universities that receive federal funding–even private ones like Harvard–must comply with Title IX, a federal law enacted in 1972 that 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.” The U.S. Department of Education has standing to enforce Title IX, and some courts have interpreted this law broadly, imposing an affirmative duty on colleges and universities to respond and remedy hostile educational environments. So, given the spirit of Title IX — the gender equality rationale behind this legal command — how should universities balance the equality rights of women and girls with the due process rights of students accused of sexual harassment? Should accusations of sexual harassment (and sexual assault, for that matter) be left to the courts to decide? Or do schools have an affirmative duty to create a hostile-free environment and protect their students from sex discrimination? In your opinion what is the best way to interpret the sparse language of Title IX? (Notice that this is just as much a moral question as it is a legal one.)

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Image Credit: Rachelle Keller

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