Apart from the Ramos-Taylor case and the Brandeis University case, other lawsuits are mounting, with students asking for university judiciary panel decisions to be overturned.
One case involved a student at the University of Southern California who was suspended by the university over an alleged sexual assault of a woman during group sex. The incident began as consensual but turned violent, according to the victim.
The university found that the student in question violated the university's sexual misconduct policy because he refused to intervene and stop the incident, and later left the woman alone with the offenders.
The student successfully appealed the decision to the California Court of Appeals, with a three-judge panel of the Second Appellate District finding that the university failed to give the student a fair hearing.
In another similar case in Southern California, a judge agreed that a student's due-process rights had been violated after being suspended by the University of California-San Diego for allegedly assaulting a female student. The university presumed the student's guilt ahead of time while failing to allow him access to the witnesses and evidence, the judge ruled.
A student at Middlebury College in Vermont also had his expulsion halted by a federal judge, who ruled the student would likely to prevail on the merits, and the case was eventually settled out of court. And a Tennessee state court judge ruled that a wrestler at the University of Tennessee-Chattanooga should not have been expelled from the university, finding inadequate proof of sexual assault.
Harris, from the Foundation for Individual Rights in Education, said that while many of the cases focus on due process or breach of contract, another emerging sector deals with the fundamental fairness of the university enforcement process in what she deems "reverse Title IX claims," where men claim they are being discriminated against on the basis of their gender.
Again, no precedent has been established and attorneys and judges are staking new legal territory, largely as a result of the new federal policy brought about by the 2011 "Dear Colleague" letter, Harris said.
Nevertheless, these cases and others filed and pending have emboldened critics of the newly empowered Title IX panels at universities. Last July, three Republican members of the House of Representatives introduced the Safe Campus Act, which sought to prohibit colleges from conducting rape investigations and require victims to report the crimes to police as means of seeking justice on campus. The bill is still pending.
Michelle Anderson, a law professor with City University of New York, said this is a bridge too far.
During the same September debate where Rubenfeld argued that sexual assault is the exclusive province of criminal courts, Anderson said the Safe Campus Act was "Orwellian."
"All of this assumes criminal courts are effective arbiters of sexual assault cases," Anderson said in an interview. "In fact, 80 or 90 percent of victims of sexual assault on campus never report to the police. Also, there is an established history of criminal justice system failing to take the reports seriously enough."
Proponents of the Title IX enforcement also note that the burden-of-proof requirements in the criminal justice system have made adjudication of sexual assault traditionally burdensome for victims.
These requirements, with the onerous and often protracted process of court battles, means there is a gap between sexual assault incidents and the criminal justice system's response that must be bridged.
Anderson further notes that the recent lawsuits and handful of victories against colleges that have failed to offer an appropriate judicial process proves the system works.
"I don't think filing of suits is indicative of a failure," Anderson said. "Suits on both sides of such a controversial issue are somewhat to be expected. I also think campuses are working out how to equitably and promptly respond to this problem."
Gruber, the Colorado law professor, concedes that Title IX has a role to play in ensuring equal education and a safe environment where both men and women can pursue their studies without fear of sexual harassment or violence.
"Student-on-student conduct needs to be dealt with," she said, noting that behavior like sexual harassment that may not rise to the level of criminal conduct should still be given shrift by universities interested in providing an equal and fair education. "But you have to be careful. This isn't a civil rights lawsuit against some firm. These are students and they are young."
In many instances, the young women who bring complaints to university officials don't want harsh punishments brought against the accused, Gruber said. The victims should be consulted and if they just want to be able to simply change dorms inconspicuously, they shouldn't be forced to participate in a punitive system.
"This has been portrayed as a pro-victim regime. But I'm not sure, given the surrounding culture of it all, that it will end up being all that good for victims," she said.
Gruber isn't saying that abandoning the current Title IX format altogether is the answer, but she does argue we "need to reconceptualize precisely what we want colleges to do."
While UC chief Napolitano concedes limitations to the university adjudication process, she asserts there is a role for colleges.
"Universities and colleges, by virtue of their education and research missions and expertise, are well positioned to undertake the necessary education and research, and prevention and response actions, that leadership in this area will require," she wrote.
Many of the experts interviewed from this story advocated for a balanced approach, with colleges assuming a careful role that incorporates some of the impartiality and due process of the criminal justice system and the courts providing recourse to those that feel failed by that system.
For instance, CUNY law professor Anderson maintains that the criminal justice system must prosecute rapists, but advocates a role for colleges to supplement those prosecutions.
"Schools have work to do to protect students who make allegations and the students against whom the allegations have been made," she said. "But by and large, they are very much trying to do the right thing."
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