College Justice and Title IX: Addressing Violence Against Women

The following blog post is the extended article that was submitted to the Wall Street Journal in response to the opinion piece Taranto: An Education in College Justice." The shortened version is available here as part of several letters to the editor published on December 12, 2013.

The woman that Joshua Strange met at Auburn University will likely never forget him either. The incident Taranto frames as an “intimate encounter” in his opinion article is a poor euphemism for what is described as a forcible sodomy commenced when the victim was asleep. The alleged assault occurred in the context of intimate partner violence that later included an allegation of physical abuse. While the author suggests Strange was “cleared” by the criminal justice system, the reality is that efforts to prosecute were not successful, which does not necessarily equate to actual innocence.

For over two decades, Congress has acknowledged the criminal justice system’s failure to adequately address violent crimes against women. This led to the passage of the Violence Against Women Act (VAWA) in 1994. This last year Congress reauthorized VAWA and expanded it to include the Campus Sexual Violence Elimination Act (SaVE) Act, which establishes standards for how colleges and universities address sexual assault, dating violence, domestic violence, and stalking on campus. If anything, the story of Strange highlights the need for this law, given the context of intimate partner violence and sexual assault. Rather than a “war on men,” our government is earnestly seeking to address violence against women by creating mechanisms that ensure the safety of abused women.

In addition to VAWA, the federal civil rights statute Title IX also addresses violence against women on campus. Title IX has existed for over 40 years to protect against sex discrimination, which has been interpreted to include sexual harassment and sexual violence. Taranto indirectly addresses this law through the mention of “an April 2011 directive” or “Ms. Ali’s directive,” which is the 2011 Title IX Guidance or “Dear Colleague Letter.” The U.S. Department of Education issued this latest guidance to clarify how Title IX obligates schools to address sexual harassment and violence as supported by case law. Inspired by this guidance, advocates such as myself successfully lobbied for some of its provisions to be included in the Campus SaVE Act, making them federal law.

[Signing of the 2013 VAWA Reauthorization]

While Taranto wants readers to be shocked at the due process afforded to Strange in his proceeding, he is making an error the 2011 Title IX Guidance corrected: campus judicial process are separate from the criminal process. Unlike a criminal trial, Strange faced a school hearing for misconduct based on a violation of the student handbook. Such an accusation simply does not warrant the same level of due process as one facing a felony charge for a sex offense. Several courts have upheld minimal due process standards in campus proceedings, such as the venerable Judge Posner in Osteen v. Henley (1993), who specifically rejected the transformation of a campus proceeding into an adversarial justice system.

For Title IX based proceedings, such as those where sexual harassment or violence has been alleged, campus judicial hearings must be “equitable.” That means even-handed due process for both parties so they have the same notice, same opportunity to present witnesses, and same ability to speak. So, for example, when the woman stated she was locked in the room after the alleged sexual assault, Strange was also given an opportunity to present his side of the story that he locked himself out of the room. The campus officials could then come to their own conclusion regarding who was more credible – perhaps finding that Strange had control of that situation and limited the woman’s movements against her will. This would be a reasonable given that the women’s testimony was found credible in a civil court to award her a restraining order against Strange.

Rather that a travesty of justice, the Strange case highlights the growing commitment by colleges, such as Auburn University, to apply federal law that addresses violence against women. It is important to remember that while this campus proceeding resulted in Strange’s removal from Auburn, it does not prevent him from seeking an education elsewhere nor would the result have even become public had Taranto not published about the case. Rather this proceeding allowed the woman to continue seeking her education on campus free from the risk of ongoing violence or abuse, as is her and every student’s right under Title IX.