Before the COVID-19 pandemic upended American universities, another issue had been plaguing college campuses for years: rising cases of sexual assault. According to the 2019 Survey on Sexual Assault and Misconduct by the Association of American Universities (AAU), 26.4 percent of undergraduate women and 6.9 percent of undergraduate men reported experiencing nonconsensual sexual contact by physical force or inability to consent.1 With 16.6 million U.S. undergraduate students in the United States, 9.4 million of whom are female, the AAU survey suggests around 3 million of current undergraduates are survivors of nonconsensual sexual contact.2 Yet, courtrooms are not flooded with campus sexual assault cases. The reasons for this are likely many. One reason addressed here is how academic institutions came to conduct their own investigations and trials outside of the traditional justice system through the adoption and development of academic abstention. Universities have been granted further authority in developing these alternative justice systems through Title IX of the Civil Rights Act of 1972. Building on these two significant developments, this article highlights current university judicial processes, their benefits, and their consequences.
The term academic abstention entered the spotlight in the seminal 1979 book Higher Education and the Law, written by Harry T. Edwards and Virginia Davis Nordin. At the time, Edwards was transitioning from teaching law at the University of Michigan to the U.S. Court of Appeals for the District of Columbia Circuit, where he later served as chief judge and is now a senior judge. Davis Nordin, noted for being among the nine female students in the Class of 1959 at Harvard Law with Supreme Court Justice Ruth Bader Ginsburg, was an assistant professor of educational administration at the University of Wisconsin. In their book, Edwards and Davis Nordin analyzed the judicial system’s history with higher education and outlined the arguments for university autonomy from the judicial system.
The idea of academic abstention dates back to the Middle Ages and ecclesiastical courts.3 While civil law was still in its infancy in Europe, issues within universities were excluded from judicial proceedings. Universities were then operated under the church with priests generally serving as professors. Therefore, any conflicts fell under ecclesiastical law. The first universities in the British colonies, and later the United States, were also generally controlled or affiliated with religious groups. Policies like religious freedom and separation of church and state were priorities in early American law. Thus, the practice of academic abstention in the United States may have first arisen for similar reasons.
Beyond these medieval roots, academic abstention continued in the United States given in loco parentis concepts.4 This doctrine originated in England during colonial times and allowed school systems to act in the place of parents when it came to student discipline, whether physical or academic. This concept could only be applied to children (defined as anyone under 21 until the late 1960s), meaning it covered almost all undergraduates at the time. In loco parentis was used in legal cases within the United States until Dixon v. Alabama,5 a 1961 Fifth Circuit Court of Appeals decision ensuring due process for students in higher education.6 Still, until the 1970s, some cases continued to equate the right of a university to discipline in a similar view to a parent’s right to discipline.7
Academic abstention carried on into the twentieth century with cases largely revolving around academic honesty, such as research integrity, plagiarism, tenure decisions, or cheating. Justification for university autonomy was based on the university being the primary stakeholder in these misdoings.8 A college professor exposed for academic dishonesty hurts the reputation of the school. Student misconduct also reflects poorly on an institute. Today, most students sign an agreement upon enrolling at an institute to uphold certain standards of academic integrity and nonacademic behavior. The student-university contract can be broken if the university determines that a student has failed to uphold these requirements.9 Universities are the entity setting these rules, so the argument stands they are also responsible for enforcing them.
The case for academic abstention also highlights universities’ ability to specialize in these academic decisions given their experience and context in doing so.10 A judge may not be the best individual to conclude, for instance, whether a student has demonstrated the skills necessary to earn a degree in fields like medicine or engineering. Through this specialization, collegiate judicial systems generally provide a quick turnaround so those involved can either continue at the university or find alternative options. This system also protects the courts from an inundation of litigation for every student or professor who feels they have been wronged, a result that is inescapable in competitive degree programs or tenure positions. It is understandable for these academically relevant issues to be settled in-house.
The deference involved in academic abstention results in the need to develop internal disciplinary systems. With few legal requirements in place, the disciplinary systems created can vary greatly from college to college. Most of these systems involve a committee or panel of various sizes and composition requirements, but they usually include three to seven members of deans, faculty, and students. All must follow the guideline first established in Dixon to adhere to due process and fair hearings.
Through academic abstention, universities have been able to operate largely on their own accord without outside influence of the U.S. judicial system. After all, attending college in the United States is typically seen as a privilege, not a right. It appears that these systems are valid in cases of student or faculty academic integrity. However, by accepting academic abstention as a precedent, university disciplinary systems may have been given greater jurisdiction than originally intended in handling campus conflicts.
The growing role and authority of campus disciplinary committees is tied strongly to the enactment and evolution of Title IX. Title IX refers to a portion of the Civil Rights Act of 1972, signed into law by President Richard Nixon, that serves as an implementation and expansion of the Fourteenth Amendment. It states, “no person in the United States shall, on the basis of sex, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”11 The inclusion of this guarantee was initially meant to tackle discrimination in educational employment within universities, which was greatly expanding in the 1960s with more women obtaining qualifications for professorships.12 Title IX is widely known in the university setting, but most people know Title IX for its massive expansion of competitive athletics programs for women in the 1980s and 1990s.
Although not expressly mentioning sexual harassment, Title IX has been widely held to preclude sexual harassment. The argument was first successfully made in 1980 by Catharine MacKinnon in Alexander v. Yale,13 when she advocated that sexual harassment constituted sexual discrimination.14 Alexander, however, was limited to harassment by university faculty. It wasn’t until U.S. Supreme Court decisions in 1998 (Gebser v. Lago Vista Independent School District15) and 1999 (Davis v. Monroe County Board of Education16) that more standards for applying sexual harassment to Title IX were recognized. Gebser and Davis, both written by Justice Sandra Day O’Connor, identified a three-pronged inquiry to determine whether a university could be held responsible for sexual harassment of a student by faculty or peers. The sexual harassment must (1) have multiple occurrences that deprives the victim access to educational opportunities, (2) be known to the school, and (3) be responded to by the school in a way that is deliberately indifferent to the harassment.17 This interpretation meant that universities are responsible for handling cases of sexual harassment through internal disciplinary systems, but it does not limit survivors from also seeking traditional legal action.
Outside of the case law developments, there have been updates to Title IX enforcement that expand the powers of universities in sexual harassment cases. In 2001, the U.S. Department of Education Office for Civil Rights (OCR) issued a guide to colleges for best practices in handling cases of sexual misconduct. However, these guidelines only applied to institutions and activities supported by federal funding.18 Still, it made colleges adapt their internal disciplinary systems to fit a more established standard.
In April 2011, the guidelines were again updated in a “Dear Colleague” letter by the Obama administration in response to increasing complaints that universities were mishandling sexual assault cases.19 While many colleges already had similar systems in place, the “Dear Colleague” letter outlined explicit procedural requirements, training for officials in disciplinary proceedings, steps to protect the potential victim, rights of the accused, and requirements for appointing a Title IX coordinator.20 Again, established university processes had to be adapted to fit this new model, but structure of the disciplinary committees remained in the control of colleges. Hearings were not required, but the letter suggested that schools supply “equitable grievance procedures,” including timely decisions within 60 days, testimonies and evidence presentation from both sides, a chance to review the opposing side’s claims, and the option to appeal any final decision.21 A single-investigator model was also encouraged. In a single-investigator model, victims have the option to only tell their account of the incident once to one person, as opposed to retelling the account multiple times or at a live hearing. Most critically, survivors do not have to undergo the trauma and intimidation of a live cross-examination in the single-investigator model.22
A key mandate in the 2011 “Dear Colleague” letter was the enforcement of a preponderance of the evidence standard of proof, while explicitly prohibiting the clear and convincing evidence standard.23 Decision-makers applying a preponderance of the evidence must only determine if evidence is more likely to be true than untrue, or greater than 50 percent chance. Fears grew that those accused of sexual misconduct would be assumed guilty before the investigation could be conducted. More than 500 cases have been initiated in state and federal courts by accused students claiming the university disciplinary systems found them unjustly guilty since the 2011 changes. An empirical study of the 298 concluded cases from policy adoption to August 2019 found universities in the wrong in 151 cases (51 percent) with another 74 cases (25 percent) ending in settlements before the court case was concluded.24
In March 2020, former Secretary of Education Betsy DeVos introduced the largest change to Title IX policies since the 2011 “Dear Colleague” letter. The new regulations better define actions that constitute sexual harassment and provide more resources for survivors. However, some of the policy updates reverse 2011 decisions. For instance, universities can now choose between the preponderance of the evidence standard or the clear and convincing evidence standard in disciplinary processes. Title IX cases will also now require a live hearing as opposed to the single-investigator model. During the live hearing, both the accuser and the accused will be subject to cross-examination, though the accuser will not be required to answer questions directly by the accused.25 President Joe Biden promises a quick end to these newest rules with a goal of building on the Obama administration’s work. However, overhauling these Trump era policies could take as long as two years.26 Overall, updates to Title IX have given greater power to universities in terms of what cases can be managed internally, but these updates also come with more requirements and limitations for those disciplinary procedures.
Colleges Acting as Courts
The history of academic abstention granted universities the power to act as independent judicial systems. Broadening Title IX guidelines has greatly extended the jurisdiction of college disciplinary committees. However, cases of sexual harassment covered in Title IX are different in kind than the academic issues these systems were originally created to address. In light of the #MeToo era, which began in 2017, there is doubt that these internal disciplinary systems are the proper way to conduct such sensitive and important matters. With more coverage on what constitutes a sexual assault, in addition to increased public support for survivors, more students are reporting cases. Harvard’s Title IX office received 56 percent more disclosures in 2018, the year after #MeToo took center stage, when compared to the year before.27 Universities conducting their own investigations do have some benefits not available in the traditional legal system. Still, there are clearly some consequences of these less stringently regulated disciplinary systems.
One benefit to the university disciplinary system is processes are considerably faster than in the traditional legal system. With all processes internal, disclosures, investigations, hearings, and decisions are usually concluded within a few months, and sometimes in a matter of weeks.28 This fast turnaround can benefit all involved, including potential victims, by limiting the mental stress of a lengthy legal battle. Schools can take action to immediately assist reported victims from having to interact with their abuser, such as dormitory changes or class schedule alterations.29 It also allows for consequences to be imposed swiftly should the accused be found guilty, like a perpetrator being removed from campus through expulsion or suspension.
University discipline systems also allow for more anonymity and privacy. Fears over confidentiality can deter students from coming forward with their stories, whether because they feel ashamed or because they fear retaliation. There is also the fear that some assault allegations will be automatically discredited based on circumstances surrounding the incident, such as the victim being intoxicated. For survivors with these concerns, a system that prioritizes privacy is essential for them to feel comfortable with reporting harassment or assault. Anonymity also protects the accused from having their public image scarred before a complaint is decided or if a verdict is favorable to the accused.
There are also unique consequences to universities handling internal sexual misconduct cases. The first issue is scale of cases that may be presented. When it comes to sexual harassment, offenses can range from inappropriate comments to sexual violence. For most universities, the processes for both are the same. Ultimately, a university can only do so much when it comes to enforcing punishments, such as expulsions and campus bans. It is up to the U.S. legal system to determine any further penalties from criminal sexual assault allegations.
Equity for those involved can vary across colleges in the United States, with universities all developing their own disciplinary systems. Disciplinary committees can vary in size, composition, and qualifications. Final calls in these cases could be determined by one decision-maker or a panel of seven. Some committees are composed of faculty and students, while others require specialized administrators. Disciplinary committees do not have the same constitutional limitations as prosecutors and judges and can have varied levels of training. There is the potential for those on the decision-making panel to be biased against the accused. Members may have personal knowledge of the accuser or accused or could have a higher willingness to believe a sexual misconduct accuser. These potential issues are especially relevant if a college chooses to use the preponderance of the evidence standard, where university trials can turn into cases of whose story the committee or decision-maker believes more.
Title IX also limits and restricts jurisdiction over college disciplinary investigations. For instance, Title IX has limitations prosecuting incidents depending on where and with whom they occur.30 The 2020 Title IX update now covers incidents that occur in college-affiliated off-campus housing (such as fraternities or sororities) or at college-affiliated off-campus events.31 Still, Title IX cannot be applied to off-campus private property even if all persons involved are students. Students away for study-abroad programs are also excluded. In addition, universities have a limited ability to impose and enforce punishments on perpetrators without campus affiliation, even if the incident occurs on campus.
From a systemic administration of justice perspective, perhaps the most troublesome flaw in colleges handling Title IX cases internally is that the colleges themselves have a stake in the outcome. Modern universities act as businesses. They are constantly competing to attract more applicants, to secure funding, and to enhance their reputation in the community. No university wants to be known for rampant sexual misconduct cases. Therefore, there is reason to speculate that educational institutions may try to undercount reports. Under the federal Clery Act, enacted in 1990,32 universities are required to report annual on-campus occurrences of certain crimes, including sexual harassment and sexual assault. The AAU report mentioned earlier found 26.4 percent of undergraduate women and 6.9 percent of undergraduate men had experienced nonconsensual sexual assault.33 Reports by schools under the Clery Act tell another story. In 2016, 77 percent of universities reported zero incidents of sexual assault (including rape, fondling, domestic violence, dating violence, and stalking).34 Audits of the Clery Act are occasionally conducted to ensure universities are upholding reporting standards. When audited, facing enhanced scrutiny, the number of sexual assaults reported on average increased 44 percent when compared to the pre-audit numbers.35 As troubling, once the audit period is over, schools on average returned to the pre-audit number of reports.36 This would indicate that there is undercounting occurring when universities are under a less-watchful eye.
No university disciplinary system is perfect, including when it comes to Title IX cases. This system, born out of academic abstention, may find some solutions by relinquishing some of that internal oversight. Some colleges are working to bring the traditional courtroom experience to the university. Select colleges have turned to hiring external judges, generally retired state judges, to oversee disciplinary hearings.37 For instance, Harvard University’s three-person decision-maker panel for Title IX cases must include “one person from a list of external attorneys, which may include, e.g., arbitrators and retired judges.”38 Outside judges may allow for better analysis of evidence and less potential bias than a group of university personnel. Lawyers also have potential for increased involvement in college hearings from their current advisory role. All of these options to formalize the process, however, do risk the process becoming more intimidating to sexual misconduct survivors.
The power of universities to internally resolve misconduct cases was first recognized under academic abstention. While internal disciplinary systems at colleges have encountered more requirements to ensure better due process, in a way, they have also expanded their legitimacy. Taking a step back, it is worth considering if too many expectations and powers have been placed on these systems. School disciplinary committees are indeed well qualified to handle cases on student cheating. However, sexual misconduct, even given the evolving guidelines under Title IX, may be a matter best left to well-trained professionals under a more regulated system. At the same time, the current systems provide some additional benefits less common in the traditional judiciary system, like faster turnaround and enhanced privacy. Advantages like these are essential for more survivors feeling safe to report sexual harassment. It is vital that these disciplinary systems are fair and trusted. A bad experience within an internal disciplinary committee may turn off survivors from seeking further legal action. If these systems are going to be trusted with handling these sensitive cases, more standards may be needed to ensure due process for students across the United States.
1. Press Release, Ass’n of Am. Univs., AAU Releases 2019 Survey on Sexual Assault and Misconduct (Oct. 15, 2019), https://www.aau.edu/newsroom/press-releases/aau-releases-2019-survey-sexual-assault-and-misconduct.
2. Undergraduate Enrollment, Nat’l Ctr. for Educ. Stats. (May 2020), https://nces.ed.gov/programs/coe/indicator_cha.asp.
3. Virginia Davis Nordin, The Contract to Educate: Towards a More Workable Theory of the Student-University Relationship, 8 J.C. & U.L. 141 (1981–1982).
4. Harry T. Edwards & Virginia Davis Nordin, Higher Education & the Law 350 (Inst. for Educ. Mgmt., Harv. Univ., 1979).
5. 294 F.2d 150 (5th Cir. 1961).
6. Edwards & Davis Nordin, supra note 4, at 339–96.
7. Jake Simpson, How Title IX Sneakily Revolutionized Women’s Sports, The Atl. (June 21, 2012), https://www.theatlantic.com/entertainment/archive/2012/06/how-title-ix-sneakily-revolutionized-womens-sports/258708.
8. Edwards & Davis Nordin, supra note 4, at 349–52.
10. Id. at 17–18.
11. 20 U.S.C. § 1681.
12. Comm. A on Acad. Freedom & Tenure & Comm. on Women in Acad. Prof., Am. Ass’n of Univ. Professors, The History, Uses, and Abuses of Title IX, 2016 Bull. 69, 70–71 (June 2016), https://www.aaup.org/report/history-uses-and-abuses-title-ix.
13. 631 F.2d 178 (2d Cir. 1980).
14. Michele Landis Dauber & Meghan O. Warner, Legal and Political Responses to Campus Sexual Assault, 15 Ann. Rev. of L. & Soc. Sci. 311 (2019).
15. 524 U.S. 274 (1998).
16. 526 U.S. 629 (1999).
17. K. Daw et al., Sexual Harassment in Education, 21 Geo. J. Gender & L. 439 (2020).
19. Emily D. Safko, Are Campus Sexual Assault Tribunals Fair?: The Need for Judicial Review and Additional Due Process Protections in Light of New Case Law, 84 Fordham L. Rev. 2289, 2293 (2016), https://ir.lawnet.fordham.edu/flr/vol84/iss5/16.
20. Russlynn Ali, Dear Colleague Letter, U.S. Dep’t of Educ. (Apr. 4, 2011), https://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html.
22. Daw et al., supra note 17.
23. Am. Ass’n of Univ. Professors, supra note 12.
24. Samantha Harris & KC Johnson, Campus Courts in Court: The Rise in Judicial Involvement in Campus Sexual Misconduct Adjudications, 22 N.Y.U. J. Legis. & Pub. Pol’y 49 (2019).
25. Press Release, U.S. Dep’t of Educ., Secretary DeVos Takes Historic Action to Strengthen Title IX Protections for All Students (May 6, 2020), https://www.ed.gov/news/press-releases/secretary-devos-takes-historic-action-strengthen-title-ix-protections-all-students.
26. Tyler Kingkade, Biden Wants to Scrap Betsy DeVos’ Rules on Sexual Assault in Schools. It Won’t Be Easy., NBC News (Nov. 12, 2020), https://www.nbcnews.com/politics/2020-election/biden-wants-scrap-betsy-devos-rules-sexual-assault-schools-it-n1247472.
27. Jamie D. Halper, In Wake of #MeToo, Harvard Title IX Office Saw 56 Percent Increase in Disclosures in 2018, Per Annual Report, Harv. Crimson (Dec. 14, 2018), https://www.thecrimson.com/article/2018/12/14/2018-title-ix-report.
28. Beth Howard, How Colleges Handle Sexual Assault in the #MeToo Era, U.S. News (Oct. 1, 2018), https://www.usnews.com/education/best-colleges/articles/2018-10-01/how-colleges-handle-sexual-assault-in-the-metoo-era.
29. Amanda T. Quan, Abigail S. Wallach & Sonya Boun, What Colleges and Universities Need to Know About the Department of Education’s Final Title IX Rules, 10 Nat’l L. Rev. no. 165, June 13, 2020, https://www.natlawreview.com/article/what-colleges-and-universities-need-to-know-about-department-education-s-final-title.
30. Daw et al., supra note 17.
31. Press Release, U.S. Dep’t of Educ., supra note 25.
32. 20 U.S.C. §§ 1092 et seq.
33. Press Release, Ass’n of Am. Univs, supra note 1.
34. An Underreported Problem: Campus Sexual Misconduct, Am. Ass’n of Univ. Women, https://www.aauw.org/resources/article/underreported-sexual-misconduct.
35. Corey Rayburn Yung, Concealing Campus Sexual Assault: An Empirical Examination, 21 Psych., Pub. Pol’y & L. 1 (2015).
37. Jake New, Outsourced Campus Judges, Inside Higher Ed. (June 30, 2015), https://www.insidehighered.com/news/2015/06/30/colleges-turning-judges-campus-sexual-assault-cases.
38. Harv. Title IX Off., Harv. Univ., Interim Procedures for Handling Formal Complaints Against Students (Sept. 4, 2020), https://titleix.harvard.edu/files/titleix/files/harvard_university_interim_title_ix_sexual_harassment_student_procedures.pdf.