Imagine it is 1972. Congress just enacted Title IX of the Education Amendments, and it is signed into law by President Nixon. For the first time in United States history, legislators recognize sex discrimination as a pervasive issue in educational environments. The law is enacted with the purpose of ending sex discrimination in college sports; for the first few years, that is the only purpose Title IX serves.
Gradually, Title IX expands into the realm of sexual and interpersonal violence on college campuses. Yet despite the law’s expansion, compliance with Title IX is neglected. No entity actively monitors schools’ compliance, and for decades navigating the complexities of filing a Title IX complaint proves difficult for even the brightest student. For many years, the survivors of sexual and interpersonal violence go unnoticed.
In 2006, Megan Wright, a freshman at Dominican College, reported being gang raped on her college campus. Despite informing school authorities about the attack and getting a rape kit, her college refused to investigate, so Megan dropped out of college and subsequently took her own life. In 2007, Annie Clark, a freshman at the University of North Carolina at Chapel Hill was raped within the first few weeks of school. When she reported the assault to university officials, the school neither investigated nor responded to the report. In 2012, Erica Kinsman had to wait twenty-four months for a conduct hearing while her rapist continued to play Florida State University football, all while his DNA matched her rape kit. These women are just three of the thousands of survivors of sexual and interpersonal violence on college campuses over the past few decades who were ignored by their schools.
It is now 2020. Every college and university in the country which receives federal funds is required by law to appoint a Title IX Coordinator to investigate all Title IX claims. Colleges and universities are also required to conduct an investigation within a reasonable timeframe. Since 2011, the Department of Education Office for Civil Rights (“OCR”) has opened 502 investigations into college and university potential mishandling of Title IX claims of sexual assault.
This Note will argue the recent uptick in lawsuits filed by students against colleges and universities in New York State for improper expulsion due to a Title IX violation is largely attributable to errors during the investigation stage of Title IX claims. Today, there is little to no data on the steps Title IX Coordinators are taking when investigating a Title IX claim. Moreover, there is no uniform burden of proof that Title IX Coordinators must satisfy before passing their investigatory findings on to an adjudication board. Therefore, Title IX Coordinators—tasked with the job of being objective fact finders—may be arbitrarily passing investigations on to an adjudication stage without properly and uniformly investigating the claims. Many disciplinary board determinations are not being overturned for improper application of the correct burden of proof during adjudication, but rather for errors throughout the investigatory and procedural processes. The establishment of a uniform burden of proof at the outset of a Title IX investigation will require Title IX Coordinators to remain objective while efficiently using campus resources to investigate viable claims.