The Problem With Title IX Investigations

The University of Michigan’s leniency when it comes to punishing perpetrators of sexual misconduct is by no means the result of a devious, sinister conspiracy to deprive alleged victims of justice and violate basic democratic principle. Granted, the fact that the University only issued formal sanctions in a mere seven of the 172 cases of reported sexual misconduct in 2015 is damning, but it is also short-sighted and lazy to rationalize that such an egregious statistic is the byproduct of apathy or corruption on the University’s part. When examining this problem from a more macro and holistic vantage point, an issue far more troublesome than the University’s much-maligned handling of reported cases of sexual misconduct comes focused into view: Title IX.

Enacted as part of the United States Education Amendments of 1972, Title IX is a law that is designed to combat gender-based discrimination in academic institutions. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” it reads. In a vacuum, these anti-discriminatory ethics at the core of Title IX seem logical, reasonable, and morally correct to everyone with a semblance of a functioning brain. All good, right?

Well, not exactly. The burden of justifying illegal discrimination taking place in a given academic institution rests on the shoulders of the institution itself, as opposed to the outside legal system. This may make sense from the standpoint of rectifying smaller, relatively mundane types of gender-based discrimination like name-calling, where detention, suspension, expulsion, etc. fit as a proper punishments. However, Title IX also files sexual assault under the broad umbrella of sexual discrimination, meaning that any reported on-campus sexual assault is subject to that university’s investigatory procedure and ultimate ruling as the primary means of seeking justice, while actual law enforcement assumes a marginal, backseat role.

What’s worse is just how unequipped universities are to conduct these investigations in the first place. In his February 19 editorial titled “Title IX Investigations Are a Total Mess,” attorney and FOX Sports correspondent Clay Travis writes, “schools don't have DNA testing or subpoena power over non-students, or access to scads of evidence that police departments can ensure are utilized to conduct a fair and impartial investigation.” I was fortunate enough to be able interview Travis further on the subject, and he reiterated to me his frustrations with Title IX’s application to sexual misconduct investigations. “A school, which has no history or legacy of investigating felonious activity, applying a civil court standard to a potential criminal act [is unacceptable],” he said. “Universities shouldn't be conducting investigations into sexual assault. They are being sued by the accused and the accuser because the systems in place are fundamentally flawed.”

One such flaw that Travis notices likely has John Locke once again rolling over in his grave: the lack of a standardized investigatorial procedure universal to all colleges. “The result [of this application of Title IX] is a hodge podge of different methods of hearings across the country, accusers and victims may or may not be able to cross-examine each other, rules of evidence may or may not apply, hearsay may or may not be admissible, appeals may or may not be fairly granted,” Travis says in his editorial. “It's a total crapshoot, and unlike in the criminal court system, there is no consistency.” Locke would certainly have a bone to pick with the lack of consistency in these processes. In his Second Treatise, Locke stresses that uniformity and standardization are necessary features of a democratic society’s legal system. “First, [legal procedure] is not, nor can possibly be absolutely Arbitrary over the Lives and Fortunes of people.” (357) So, the very fact that all universities abide by their own unregulated investigatory procedures when looking into reports of sexual assault is in of itself a failure of democracy, which becomes further compounded when these types of faulty processes yield unjust rulings.

In summation, so few cases of reported on-campus sexual assault at Michigan result in formal sanctions not because the University does not care or because of its seemingly lax sexual misconduct policy, but because it does not possess the tools to investigate such a serious matter with the attention, care, and precision that it requires. In my next blog, I will propose a way to (at least partially) solve this particular failure of democracy. Thanks again for reading!

Travis, Clay. "Weblog post." Outkick the Coverage. FOX Sports, 19 Feb. 2016. Web. 30 Mar. 2016.<http://www.foxsports.com/college-football/outkick-the-coverage/title-ix-is-a-total-mess-021116>.

"From the Daily: A better policy, please." Michigan Daily 18 Feb. 2016: n. pag. Michigan Daily. Web. 30 Mar. 2016. <https://www.michigandaily.com/section/editorials/daily-better-policy-please>.

Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press.