How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students
59 Pages Posted: 12 Sep 2017 Last revised: 19 Jan 2018
Date Written: December 14, 2017
This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement — launched with the best of intentions in response to real problems — almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, which prevents evaluation of possible disparate racial impact in higher education. Further, several aspects of the university disciplinary apparatus — including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures — increase the risk that minority students will suffer disproportionate suspensions and other punishment.
This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men — or, instead, even now provide inadequate protection for college women — few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar racial biases.
This Article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act of 1964 to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.
Keywords: Title IX, Race, Disparate Impact, Title VI, Dear Colleague, Education, Higher Education, Sexual Assault, Rape, Sexual Harassment, Implicit Bias, Colleges, Universities, Civil Rights Act
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