New Threat: Paper Wants to Publish Title IX Sex Offender Registery
The law of “unintended consequences” – the actions of people and government have effects that are unanticipated – may well be on vividly harsh display shortly for Title IX. Among other things, the law requires schools, colleges and universities that receive federal funding to investigate claims of sexual harassment and assault against students.
But depending on the outcome of a lawsuit currently on appeal in North Carolina, Title IX might end up being used to create a de facto “sex offenders” list at the University of North Carolina at Chapel Hill despite there being no trials or due process for any of the students whose names and offenses are released and published in The Daily Tarheel student newspaper.
The case involves the state’s Public Records Act, not Title IX itself, but its implications could upend how schools treat the findings of Title IX investigations. In 2016, the university newspaper filed a request for files concerning “anyone who, since January 1, 2007, has been found responsible of rape, sexual assault, or any related or lesser offense including sexual misconduct.”
The university refused the submission, citing the federal Family Education and Privacy Act (FERPA) that dates back to 1974. FERPA was designed to keep a student’s on-campus records private although it allows some exceptions, most notably if “the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.”
Many Schools Use Inadequate Procedures in Title IX Proceedings
Complicating the dispute is that many schools do not protect students’ due process rights, do not use professional investigators, and even fail to abide by the requirements of Title IX itself when investigating a Title IX complaint. Sometimes amateurs – frequently other students – are given rudimentary training into how to collect evidence and examine witnesses. Worse, these non-professionals are given what’s called “trauma informed” training which is a fancy expression that essentially allows inconsistent or contradictory testimony about even basic details of an alleged assault to be considered the result of supposed emotional distress rather than dishonesty. A legitimate court would never allow such a procedure.
Just as abusive of the rights of an accused student are, when (or sometimes if) a hearing is held into the charges far too often the student – who may still be a minor in some instances – lacks legal counsel and are prohibited from cross-examining either the complainant or other witnesses. This is a clear violation of the due process clause of the U.S. Constitution. Indeed, when the findings of a Title IX hearing are challenged in court, the rulings often are tossed out on their ear. Many students have sued their schools as a result of a Title IX decision, with roughly 50 judges finding for the accused students. In other instances the universities settled out of court before the matter ever reached a trial because they knew they were in the wrong.
Yet these blatantly illegal hearings continue on many campuses, depriving students of their rights and reaching decisions with potentially life-altering consequences. As a Title IX defense attorney who handles cases nationwide, my first advice when retained by a student or their parents is always “Say nothing without your lawyer being present.” Some investigators will often try bullying the accused into making statements or answering questions without a lawyers advice.
Not only is this unfair to the student charged with a Title IX offense, it’s unfair to the person making a complaint. Even if the charge is legitimate, the findings of the kangaroo courts permitted by many schools are likely to be thrown out by a real court following an appeal.
Meanwhile, in North Carolina, the state supreme court is being asked to overturn the appeals court ruling. So far, the U.S. Department of Education has not filed a brief in the case and silence from Washington may signal that Title IX files are fair game for anyone who wants to file a FOIA-like request such as that submitted by the UNC student paper. A decision in the newspaper’s favor would require all schools in the state to hand over records of Title IX decisions when requested. The state legislature could step in to protect the unjustly accused but there doesn’t seem to be an appetite in Raleigh to do so.
While some cases there is a legitimate need for Title IX investigations, hearings and discipline, there also is a legitimate need to ensure that the rights of an accused are protected. This means using only professionally-trained investigators and adjudicators who have been schooled in due process, in what constitutes genuine evidence and credible testimony, and who conduct fair and impartial hearings before issuing a ruling.
It also means not using Title IX to brand a student as a “sex offender” for life by having their name published in a school newspaper.
Jesse Binnall has represented numerous students accused of Title IX offenses in federal and state courts around the country.