More Title IX Litigation Opportunities Likely Coming Down The Pike

Criminal LawyerAccording to an article in the New York Times, president-elect Biden indicated that he would like to rescind the Department of Education’s most recent Title IX compliance rule, which explains what colleges and universities need to do to comply with Title IX, the civil rights law that prohibits gender discrimination on college campuses across the country. This is really unfortunate, because the most recent Title IX rule contains a lot of helpful information about how colleges and universities should adjudicate Title IX disputes. Any institution that follows the guidance set forth in the existing rule is likely to avoid running afoul of the constitution.

You would think that trying to enforce a law that prohibits gender discrimination would be unproblematic. But the federal government’s prior interpretations of Title IX jurisprudence have created a great deal of avoidable liability for educational institutions in recent years. The problems really started back in 2011, when the federal government issued well-intentioned, discretionary guidance to colleges and universities about how Title IX disputes ought to be adjudicated. The aim of the discretionary guidance was to make it easier for victims of sexual violence to report what happened and obtain meaningful redress.

Unfortunately, in their understandable zeal to support victims of sexual violence, colleges and universities began instituting procedures that stripped the accused of any semblance of due process. Unfair proceedings led to erroneous conclusions and, unsurprisingly, an avalanche of litigation.

Since the federal government initially issued its discretionary guidance in 2001, accused students have filed over 600 lawsuits. Judicial decisions have been favorable to such plaintiffs, with many courts ruling that newly instituted procedures were unconstitutional and/or unfair. The Department of Education’s most recent Title IX compliance rule essentially summarized the judicial consensus and provided guidelines for following existing federal law.

Rescinding the rule is not going to magically overturn hundreds of judicial decisions, it will just create confusion, an ill-advised return to old practices by at least some institutions, and, most likely, more litigation. While this is good news for plaintiff’s attorneys, it’s terrible news for students (both accusers and accused) whose lives are likely to be upended by flawed proceedings that lack finality.

Why, then, is our future president so keen to telegraph his intentions to rescind the most recent Title IX compliance rule? It seems that people who have not read the actual rule (admittedly running thousands of turgid, heavily footnoted pages) have come to see it as a vehicle for suppressing victim’s rights. Rescinding it can, therefore, be portrayed as a feminist act.

This type of “performative legislation” is the bane of every criminal defense attorney’s existence. How many ill-advised statutes are passed for political rather than practical reasons? How many unhelpful administrative rules are promulgated in much the same way? How many people are thereby irreparably harmed? Whenever I start to think about these things too much, and my frustrations get the better of me, I remember that if everyone always acted rationally and made good decisions, I’d be out of a job. Perhaps other attorneys can also find some consolation by adopting such viewpoints.

Thanks to the Law Office of Anna P. Sammons for their contribution.