Title IX Due Process Standards in Campus Sexual Assault Investigations: Enhancing Procedural and Distributive Justice for Victims

• In Event: Programs and Policies Regarding Sexual Assault on College Campuses

Abstract

Sexual assault is a growing problem on college campuses. Victims are increasingly demanding accountability from their schools. The Department of Education Office of Civil Rights released guidelines for adjudicating sexual assault in 2011. These recommendations allow colleges to implement varied adjudicatory systems that fail to balance fairness for student victims and respondents, or ensure institutional compliance with Title IX.
We argue that limitations on procedural due process rights within campus adjudication – including the preponderance of the evidence standard of proof and cross-examination of witnesses – not only diminish fairness of outcomes for students accused of sexual assault, but sexual assault victims. Additional adjudicatory concerns include unstandardized procedures, prejudicial investigatory procedures, inadequate victim support, and harmful mandatory reporting policies. Perceptions of procedurally unjust treatment can erode the legitimacy of Title IX as an effective mechanism to address sexual assault on college campuses. We demonstrate how procedural and distributive justice within campus adjudication can increase fair outcomes and student perceptions of system legitimacy, and reduce the incidence of campus sexual assault.
We also provide recommendations for strengthening campus sexual assault proceedings, including a restorative justice approach to adjudication.

Authors

• Shannon Harper, University of Illinois at Chicago

• Anne Kirkner, University of Illinois at Chicago