A Rising Tide: Learning About Fair Disciplinary Process from Title IX

Abstract

College campuses are a site of intractable clash between advocates fighting gender violence and proponents of students’ due process rights – or so the popular press, legal journals, and some recent law suits claim. In fact, these two camps share much, including common ideological commitments to education access, investment in school discipline systems’ actual and perceived legitimacy, and benefit under a rapidly developing legal regime. Despite assumptions to the contrary, federal school sexual assault law provides accused students with procedural rights unavailable elsewhere in federal law for students accused of any other form of misconduct. One might think, then, that advocates for student due process would celebrate the expanded procedural rights available in gender violence disciplinary hearings. Despite these commonalities, critics and advocates maintain a narrative of warring factions, explained in large part by rape exceptionalism and the dominance of criminal law in the public imagination regarding responses to rape and other sexualized harms. This Article maps out the two movements’ overlooked common ground in order to demonstrate the great loss to students that results from the warring factions narrative.

Keywords: Title IX, school discipline, campus sexual assault, gender violence

JEL Classification: K00