Right now, campuses across the country are responding in broadly disparate manners to student allegations of sexual assault. The lack of consistency from campus to campus, and even from case to case within campus systems, deters many victims and frustrates accused individuals. Victims, accused students, and colleges and universities could benefit from greater consistency and transparency in Title IX compliance in cases of sexual assault.

Title IX, which prohibits discriminatory practices, has been regulated by the Department of Education Office for Civil Rights (OCR). Most colleges and universities established misconduct codes to forbid “discrimination” which was considered to occur where a student was victimized by sexual assault or sexual harassment.

In those “codes,” procedures were established to investigate and adjudicate where a student was accused of sexually assaulting or harassing another student. Recently the OCR has been under pressure to revise its various regulations to accommodate criticism that the regulations do not provide sufficient due process for the accused in those misconduct codes.

Regional Title IX Centers

In response, Secretary of Education Betsy DeVos has proposed a system of Regional Centers where “professionally-trained experts handle Title IX investigations and adjudications” that are referred to them by participating schools. This is a promising idea. The Regional Centers would act independently of campuses, and would therefore be more insulated from social and political pressures, and the resultant biases that can shape these processes.

However, there are some issues with the plan as it stands.

Former state supreme court #justice weighs in on the pros and cons of #titleIX

For example, in order to be eligible for referral, the incident has to “rise to a criminal level.” The problem with this standard is that not only does it create a redundancy with the criminal justice system, it creates potential conflicts with that system.

The criminal justice system in the Regional Center’s jurisdiction may reach a different conclusion than that Regional Center in a particular case, and that could undermine confidence in the Regional Center’s procedures, especially in the scenario where the justice system applies a “beyond a reasonable doubt” standard and convicts, but the Regional Center applies a lower evidentiary standard and does not make a finding that the accused violated the applicable code of conduct. This would mar public faith in the Regional Center adjudication system.

The other issue is putting the responsibility to schools to decide – applying state law, presumably – when behavior “rises to a criminal level” such that it should be referred. Colleges are having enough trouble interpreting Title IX. They should not be tasked with interpreting state criminal law in order to interpret Title IX and ensure that they are complying with it, and Title IX compliance should not vary from state to state. Importing state criminal law needlessly complicates an already complex system.

(Next page: The challenge of adjudicating campus sexual assaults)

About the Author:

Hon. Jane Cutler Greenspan (Ret.) is an arbitrator and mediator with JAMS. She served as a Justice of the Supreme Court of Pennsylvania, 20 years as a Judge in the Trial Division of the Pennsylvania Court of Common Pleas, and more than 10 years as an Assistant District Attorney where she served as Chief of the Domestic Violence Unit and Chief of Superior Court Appeals. Judge Greenspan works with colleges and universities as an external Title IX adjudicator in sexual assault, sexual abuse and sexual harassment cases.