Title IX Investigations Are a Total Mess

Let's get this out of the way early: anyone with a functional brain is in favor of equal treatment under the law and everyone is against rape. Just like everyone is against murder and assault and any other crime that injures another human being.

Now that this is out of the way, let's ask a big question that never gets asked: why are universities responsible for investigating rape accusations? The answer is because they're required to conduct investigations under the auspices of Title IX. It's a well intentioned application of federal law -- premised on the idea that sexual assault on campus is a problem that needs to be treated seriously -- but it creates as many, if not more, problems than it actually remedies. Because it sets up two different simultaneous investigations with different standards of proof and different consequences while also creating two divergent potential outcomes.

Let me explain.  

If a murder happened on campus every single person who has ever been to college anywhere would find it ludicrous if a university was conducting a simultaneous campus murder investigation alongside police, right? Any time there's a serious allegation of a crime, campus cops call the real cops and let them investigate. That's because campus cops are equipped to give out parking tickets and respond to noise complaints, they aren't there to solve murders or bank robberies or kidnappings.  

If a serious crime happens on campus just about everyone would say that it's the job of local police to investigate that crime. That's because we understand that conducting criminal investigations is time consuming, difficult, and freighted with the obligations to implement that investigation consistent with applicable state and federal law. No college or university has an adequate investigatory staff to determine who committed a murder and assess guilt or innocence. Moreover, the very idea of a college conducting a hearing based on whether a murder happened and applying its own standard of proof and rules of evidence and confrontation rules in that case is laughable.  

So why is Title IX being applied to require colleges to conduct investigations into sexual assault?

I ask this question because athletics have become intertwined with sexual assault in the news a great deal over the past couple of years: the Jameis Winston case at Florida State, the Baylor rape cases, the Treon Harris case at Florida, the Vanderbilt rape case, and the recent lawsuit filed against the University of Tennessee alleging wrongdoing in a variety of sexual assault cases. Given that Baylor and Florida State recently settled cases for substantial sums of money, you can bet plaintiff lawyers -- sensing a big payday -- are going to commence filing these cases at a rapid rate. 

All of these cases that I cited above are similar in that they involve female students alleging sexual assault by male football players. But how are they alike and how are they different and how do they implicate current criminal law when it comes to sexual assault?

Before we begin a discussion of all these cases, let's analyze what's at stake here. At its most basic level criminal charges are brought when an investigator believes he or she has a reasonable probability of obtaining a conviction of a defendant beyond a reasonable doubt. You're all familiar with the phrase, "beyond a reasonable doubt." But it's a term of art. What exactly does "beyond a reasonable doubt mean?" What is "reasonable doubt?" It differs for every juror. For you, it might mean that it represents 99.9% guilt, for another person it might mean 95%. Most of you probably can't even put reasonable doubt in percentage terms, you just know it when you see it. Regardless, it's a high standard. That standard is high because we believe that no innocent person should ever be found guilty of a crime he or she didn't commit. 

I've said and written this before, but if you get charged with a crime and have the money to afford decent legal representation, you probably did it. That is, you might beat the charges, but the odds are, you're guilty.

Our criminal justice system is not perfect -- no system is -- but if you're charged with a crime there's a well established process that has been designed and refined over hundreds of years of court cases. We've balanced the rights of the accused and the rights of the alleged victims. There is due process. No one is found guilty without the opportunity to defend him or herself. Everyone understands the rules and how they will be applied. Moreover, the investigators who are charged with determining whether or not they believe a crime occurred are responsible for conducting their investigation within the bounds of the Constitution and state and federal law.

That's why the criminal court system is the absolute best place for all allegations of campus crime. Police should be investigating alleged sexual assaults just like they're investigating a campus murder or kidnapping or bank robbery. These are all real crimes where both the alleged victim and the accused have due process and the protections of our court system.   

But campus rape investigations aren't like criminal investigations, the standard for guilt or innocence is much lower, it's a simple proponderance of the evidence standard. That is, if it's one iota more than 50% likely that a hearing officer finds you guilty of an offense, then you're guilty of the offense and subject to campus discipline. 

So the easy explanation here is the burden to prove sexual assault on campus is much lower than it is in the criminal justice system. And unlike in courts where we've spent hundreds of years refining our criminal court processes (which can still lead to improper results) most colleges are just beginning to implement their Title IX polices. The result 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. It's a total crap shoot, and unlike in the criminal court system, there is no consistency.  

As a result Title IX investigations are a recipe for disaster. This most frequently arises in those cases in which a police investigation occurs and no charges are filed. That's because if criminal charges are brought then students are kicked out of school pending the outcome of their trials. But what if criminal charges aren't brought? A campus investigation can still take place under Title IX. And a student can still be kicked out of a school based on the lower preponderance of the evidence standard even though he's been cleared by a thorough criminal investigation.

What's more, 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. It's almost entirely a he said she said examination--which side's story is more believable?

That's a total mess.

Put simply, schools aren't any better equipped to conduct rape investigations than they are to conduct murder, kidnapping or bank robbery investigations.  

With this background, let's discuss what happened in all five of these most recent campus cases:

1. Baylor's case is the most egregious example of what a school can do wrong.

In the Baylor case, the school conducted its own Title IX investigation and cleared Sam Ukwuachu, a football player, of rape. That is, they found it more likely than not that he did not commit the crime. Then the local district attorney took the case to trial and got a conviction beyond a reasonable doubt.

Here, Baylor's Title IX investigation was so flawed that it found it less than 50% likely a player committed a rape and then a jury found it beyond a reasonable doubt that he did commit the crime.

How is this possible?  

The school conducted a shoddy investigation.

You can read my column about the case here.

2. The Jameis Winston case is the second worst example of how to handle alleged sexual assaults on campus.

The Tallahassee police department failed to conduct an investigation and FSU actively hindered a student's pursuit of justice. When the police department finally got around to conducting their investigation -- nearly a year later -- the evidence was lost and Jameis had retained a high profile attorney to protect his interests. (That attorney worked for free, by the way, providing hundreds of thousands of dollars in pro bono legal counsel).

When she eventually got a Title IX hearing at the school the hearing officer determined -- and I'm not making this up -- that each side was equally believable. That is, the person hearing the case found it 50% likely that Jameis committed a rape and 50% likely that he didn't. So he chose not to make any decision at all, rendering the entire case moot.  

FSU has since settled this case for nearly a million dollars, acknowledging a variety of flaws in its Title IX policies. 

But the biggest issue in this case wasn't FSU's Title IX investigation, it was the Tallahassee police department's flawed investigation. The Tallahassee police department failed the victim.  

3. Vanderbilt, Tennessee, and Florida actually handled these cases as well as could be expected. 

All three schools immediately suspended all accused players from the team, before any charges were filed. That's the policy I've advocated for a long time, immediate suspension pending the outcome of a police investigation. (This isn't flawless since it could lead to an entirely innocent person being suspended from team activities, but I believe that 100% false accusations are incredibly rare). When authorities didn't charge Florida quarterback Treon Harris with a crime, Florida allowed him back on the team. (Any subsequent Title IX investigation must have cleared him as well, although I don't recall that being publicized.) 

At Vanderbilt, upon discovering video suggesting a sexual assault may have occurred, Vanderbilt police notified Nashville police and allowed them to investigate. Vanderbilt suspended and kicked all four players out of school before any charges were filed. Those four players were subsequently charged with crimes -- two were convicted and then earned a retrial based on an improper juror. Since the students were kicked out of school and charged with crimes, there was no point in a Title IX investigation. 

Tennessee allowed a police investigation to take place and also suspended all players, two of whom still await trial. Interestingly, the lawsuit against Tennessee alleges that its Title IX policies are flawed because:

"The plaintiffs say that UT's administrative hearing process, which is utilized by public universities across the state, is unfair because it provides students accused of sexual assault the right to attorneys and to confront their accusers through cross-examination and an evidentiary hearing in front of an administrative law judge."

How is that remotely unfair?

If you were charged with a sexual assault you didn't believe you'd committed on campus wouldn't you want your lawyer to be able to cross examine your accuser? Remarkably, many Title IX hearings don't allow the alleged attacker to cross examine his accuser. How is that remotely fair? You can get accused of a campus crime and not be able to defend yourself at all?

In examining these five situations, the criminal justice system did its job in all locations except for Tallahassee. The political pressure should be brought to bear there, where the police failed. 

The Title IX investigation clearly failed at Baylor, where the police were able to get a conviction and the school, for whatever reason, was incompetent.

My argument is pretty simple -- instead of requiring schools to conduct Title IX investigations they aren't prepared to adequately undertake, shouldn't schools -- and victim advocates -- ensure that police are adequately investigating alleged sexual assaults on campus instead? If we don't expect campus police officers to investigate murders, bank robberies or kidnappings, why should we expect them to investigate rapes?

It just makes no sense.