Aequitas: Seeking Equilibrium in Title IX

52 Pages Posted: 12 May 2023

See all articles by Trent Cromartie

Trent Cromartie

University of Denver - Sturm College of Law

Date Written: February 15, 2023

Abstract

Over the past two decades, the scope of Title IX has expanded drastically and now includes the investigation and adjudication of sexual misconduct cases through campus tribunals. Beginning in 2011, the Obama Administration, through a “Dear Colleague Letter” and subsequent guidance, initiated this process by establishing guidelines that required schools to develop and implement policies and procedures for the handling of sexual misconduct cases. Following the publication of the Obama-era guidance, schools scrambled to ensure compliance with the federal guidance, which led to a myriad of applications by universities. Unfortunately, the fallout from the 2011 guidance was widespread litigation initiated by students who felt aggrieved by their university processes. Sexual assault survivors primarily argued that allegations were not investigated adequately or taken seriously enough while accused parties alleged that their schools deprived them of a fundamentally fair process. While Title IX law and policy has developed significantly since 2011, as each political administration takes power, the nature of the guidelines shifts depending upon each administration’s political leanings, resulting in a “seesaw” effect.

Since taking power, the Biden Administration has followed this trend and published its own set of proposed Title IX guidelines, which are in the process of being finalized. “Aequitas: Seeking Equilibrium In Title IX” serves as a timely and thorough analysis of the current proposed guidelines and provides proposals for improving upon the legislation in five key areas: (1) the standard of proof; (2) the right to view and present evidence; (3) the opportunity to utilize legal counsel; (4) the use of a single investigator; and (5) the ability to cross-examine. Historically, these five areas have been the primary focus of public debate and private litigation.

This Article is the first in the legal scholarship to set forth a Title IX analysis that centers around race and the potential impact of the current guidelines on diverse, historically underrepresented communities. The analysis is driven by my personal experience as a biracial man and includes auto-ethnographic excerpts. It is also informed by historical trends in the handling of sexual assault cases in the criminal context.

Ultimately, the Article highlights the importance of ensuring that certain safeguards are implemented during Title IX investigations such that sexual assault survivors are protected and afforded equal access to an education, but without dismantling protections for those accused. Through an analysis of historical trends, case law, racial impact, federal legislation, and scholarly sources, the Article will also serve as an invaluable tool for university compliance departments when navigating the complex Title IX landscape.

Keywords: Title IX, Sexual Assault, Sexual Misconduct, Due Process, Proposed Guidelines, West Point, Dear Colleague, Discrimination, Cross-Examination, Civil Rights, Office of Civil Rights, Department of Education, Equity, Equality, Standard of Proof, Evidence, Right to Counsel, Single Investigator Model

Suggested Citation

Cromartie, Raymond, Aequitas: Seeking Equilibrium in Title IX (February 15, 2023). University of Dayton Law Review, Vol. 49, 2023, Available at SSRN: https://ssrn.com/abstract=4444571

Raymond Cromartie (Contact Author)

University of Denver - Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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