by Scott Dalrymple
You may have heard of Title IX, a federal law that prohibits sex discrimination in higher education. Most people associate Title IX with college athletics, and that’s true: we must provide substantially similar opportunities to both male and female athletes. But there’s much more to Title IX than that.
Among other things, Title IX dictates how colleges and universities must deal with cases of alleged sexual assault. We follow detailed federal guidelines that govern, for instance, the kinds of evidence that can be introduced and who can cross-examine whom.
If colleges don’t follow Title IX rules, we risk losing the ability to offer financial aid to our students– all of our students, not just the ones involved in Title IX cases. I don’t think there’s a college in Missouri that could survive that loss. So like it or don’t, we follow the law.
Secretary of Education Betsy DeVos has been critical of
Title IX, and her Department is expected to issue new Title IX guidance over
the next few months. We will be required to follow it, like it or don’t. At
least it’s a level playing field; the vast majority of the 4,000+ colleges in
the U.S. are in the same boat.
Unless, it seems, you’re located in Missouri. In a case of epically bad timing, the Missouri Senate is now considering a bill, no. 259, that would upend the way Title IX cases must be handled in our state– in direct violation of federal law.
In theory, the bill sounds noble enough. It purports to “implement a procedure for due process proceedings for complaints made under Title IX.” Read further and it’s clear that the bill seeks to support the rights of the accused in sexual assault cases. I’m sure we’d all agree that everyone has important rights, including the accused. So what’s not to like?
A lot, it turns out. The bill is so aggressive in its support of the accused that it would have a chilling effect on victims. Today, colleges handle– indeed, they are required to handle– Title IX cases in-house. Some cases go to formal in-house hearings, but many more are resolved before that stage. After an appropriate investigation, some cases are deemed baseless and closed. Others lead to communication, counseling, or contrition. A handful lead to expulsion or referral to law enforcement, depending on the severity of the behavior.
Under Senate Bill 259, a nuclear button would be immediately available for either party to push. The victim or accused could demand a formal hearing before the State Administrative Hearing Commission, with lawyers, discovery, cross-examination, and all that goes with it. That’s for any case, even one that might ultimately have been deemed baseless under the current system.
For the moment, let’s ignore that this would place every higher education institution in Missouri at risk of losing federal financial aid, since this process flies against many Title IX requirements. Ignore the fact that it would be extremely costly for colleges, for victims and for the accused, all of whom would need to hire legal representation. Ignore the fact that many of the bill’s provisions would likely be deemed unconstitutional.
Instead, put yourself in the shoes of a victim. The current Title IX system allows institutions some discretion to investigate claims without necessarily pushing the nuclear button. Most Title IX cases are resolved without the necessity of a public spectacle, of cross-examination, of embarrassment, of fear.
If victims know that merely coming forward can lead to a full-blown State hearing, very few victims will come forward. I struggle to see how that leads to a better world.
Last week a number of organizations shared our concerns about Bill 259 with the Senate Education Committee, which we hoped would be interested in our perspective.
Testifying against the bill were representatives from Missouri State University, the University of Missouri, Associated Students of the University of Missouri, St. Louis University, Evangel University, Columbia College, the Independent Colleges and Universities of Missouri, the Council on Public Higher Education in Missouri, the Coalition Against Domestic and Sexual Violence, and a student advocate for victims of sexual assault.
Testifying in support of the bill were three attorneys.
Tuesday the Education Committee sided with the attorneys, 5-1. The bill will now be considered by the full Senate. Sadly, no one was surprised by this outcome; the Committee was clearly hell-bent on pushing the bill through, regardless of the overwhelming logic against it.
Ultimately I hope the Committee’s Senate and House colleagues (the House is considering an identical bill, no. 573) will listen to those of us in higher education, and to victims’ rights groups. We work hard every day to educate and protect your sons and daughters. We’re not trying to shirk responsibility here. We’re also not simpletons who automatically condemn the accused.
And we’re saying, overwhelmingly, that this proposed legislation is a very, very bad idea that won’t survive constitutional challenges.
Like the sponsors of SB 259 and HB 573, we seek justice for the accused as well as the accuser. But this is not the way to get there.
Dr. Dalrymple is the president of Columbia College.