There have been many complaints by accused students that the procedures mandated under Title IX are terribly unfair — the deck is stacked against them. And quite a few courts have agreed. Former education secretary Betsy DeVos pushed through changes to make Title IX proceedings more fair, but Biden’s Department of Education has gone back to the Obama days.
An interesting legal question is whether the proceedings run by campus Title IX enforcers should be treated as judicial or not. In today’s Martin Center article, Professor KC Johnson explores that issue. He writes, “But the core issue remains whether campus procedures that ‘have been compared unfavorably to those of the infamous English Star Chamber’ have sufficient procedural integrity to be reliable.”
Title IX zealots have usually argued that the campus adjudications are not the equivalent of judicial proceedings and therefore the accused students don’t have to be given the same rights as an accused person would have in a criminal court. Johnson examines two recent cases, one in Pennsylvania and the other in Connecticut, which have reached different conclusions as to the “judiciality” of campus Title IX proceedings.
The latter case involves Yale, where the accused male student has sued the accuser for libel. In an actual trial, a witness has immunity from statements in court. Title IX advocates don’t want that to be allowed. Johnson writes, “Like the complainant in the King’s College case defending the integrity of campus Title IX procedures, she maintained that Yale’s Title IX process sufficiently resembled a criminal process, and that she therefore deserved absolute immunity for everything she had told Yale officials.”
This legal question is sure to bedevil colleges for years to come — all because they’ve gotten into something they ought to have left to actual legal procedures all along.