The Irony of Title IX: Exploring How Colleges Implement Credibility Discounts Against Student Victims of Gender-Based Violence In Campus Misconduct Case.

103 Boston University Law Review Online 109 (2023)

UC Davis Law Review, Forthcoming

12 Pages Posted: 7 Sep 2023

Date Written: August 31, 2023

Abstract

On May 6, 2020, the U.S. Department of Education released new Title IX regulations requiring colleges to provide expanded due process rights for student respondents in campus misconduct cases involving sexual assault, dating violence, and stalking.1 A little over a year earlier, a California appellate court also expanded rights to student respondents in sexual misconduct cases, indicating that the trend is not limited to one particular presidential administration.2 To those unfamiliar with typical campus adjudication procedures, many of the new rights federal and state law afford respondents in campus misconduct cases involving gender-based violence might seem intuitive. The right to retained counsel, the right to a live hearing following an investigation, the right to cross-examine all witnesses, and the right to appeal are all common in U.S. criminal and civil law systems. But when placed within the context of campus misconduct procedures, the normalization of these protections for only one class of student respondents requires interrogation. The expanded due process rights do not apply to all students responding to campus misconduct violations; they do not even apply to all students responding to violations that could also constitute crimes or result in expulsion or suspension from college. The new rights only protect students responding to campus misconduct violations that involve gender-based violence, and the resulting harms of the additional procedures only burden student victims of gender-based violence.

This article provides specific examples of campus misconduct procedures demonstrating how colleges may provide heightened procedural protections to student respondents and heightened burdens to student complainants in gender-based violence cases that diverge from their adjudication procedures for other forms of misconduct on the same campus. Part I provides a brief overview of the current legal landscape for campus adjudications involving gender-based violence. Part II employs two hypothetical fact patterns to identify specific differences between the procedural protections campuses provide students responding to a complaint of physical assault against another student generally and the protections provided to students responding to a complaint of physical assault against a current or former dating partner. Part III addresses how heightened procedural protections for student respondents cause additional harms for student complainants in campus cases involving gender-based violence. Part IV explores the role that credibility discounting of victims of gender-based violence plays in the creation of heightened procedural protections for respondents in campus misconduct cases involving gender-based violence. It further suggests that any future changes to Title IX policy involving campus misconduct procedures should include an analysis comparing the rights and protections colleges afford respondents in gender-based violence adjudications to all other respondents in campus misconduct adjudications.

Keywords: Title IX, sexual assault, campus sexual assault, sexual misconduct, sexual violence, dating violence, intimate partner violence, domestic violence, campus dating violence, sexual harassment, feminist law, gender law, sex equality

Suggested Citation

Behre, Kelly Alison, The Irony of Title IX: Exploring How Colleges Implement Credibility Discounts Against Student Victims of Gender-Based Violence In Campus Misconduct Case. (August 31, 2023). 103 Boston University Law Review Online 109 (2023), UC Davis Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4563862

Kelly Alison Behre (Contact Author)

UC Davis School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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