Not every Title IX investigation should be a Title IX investigation. A simple concept, but one which many students and college administrators are likely unaware. Many times, an accusation of dating or domestic violence among college students is investigated as a Title IX violation when, in fact, it should be investigated within the parameters of the Violence Against Women Reauthorization Act of 2013 (usually abbreviated to VAWA).
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In a recent letter to Secretary of Education Betsy DeVos, signed by twenty state Attorneys General, the Secretary was implored to:
“…focus on the ultimate goal of ensuring that all students are protected from discrimination, including sexual harassment, assault, stalking and domestic violence, under Title IX.” (see state Attorneys General letter to Secretary DeVos, July 19, 2017) (emphasis added).
In a publication of Adelphi University’s Division of Student Affairs entitled “Domestic Violence, Dating Violence, Stalking”, the University states:
“Domestic violence, dating violence and stalking are considered forms of discrimination prohibited under Title IX.”
In fact, Title IX does not control. Title IX prohibits discrimination on the basis of sex in education programs or activities operated by recipients of federal funding. In assessing what kind of conduct constitutes discrimination based upon sex under Title IX, courts generally apply the standards adopted under Title VII of the Civil Rights Act of 1964, as amended (a federal civil rights statute that prohibits discrimination in employment). Hence, concepts such as quid pro quo sex harassment and hostile work environment sex harassment borne in Title VII jurisprudence have been adopted in the Title IX context. Indeed, the concept of sexual violence and sexual assault as an extreme form of sexual harassment was developed in Title VII.
Accordingly, in its seminal and controversial April 4, 2011 “Dear Colleague” letter, the Department of Education’s Office for Civil Rights (OCR) assessed that:
“A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment under Title IX.”
Note the non-use of the term “domestic violence.” Indeed, even the OCR’s caveat in a footnote that other forms of gender-based harassment besides sexual violence are prohibited by Title IX; there is no mention of domestic violence or dating violence. (see footnote 9).
This is where the Violence Against Women Act Reauthorization Act of 2013 (VAWA) emerges. This Act, which amended the Clery Act (Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act), included the Campus Sexual Violence Elimination Act (SaVE Act) which established mandatory procedures that colleges and universities must apply in their disciplinary procedures for sexual assault, stalking, domestic violence, and dating violence.
Thus, it is the Violence Against Women’s Act (VAWA)/SaVE Act and not Title IX that specifically addresses domestic violence allegations in the campus and educational setting.
In addition to specifically including domestic violence and dating violence within the purview of the Act, VAWA enacted regulations, in compliance with the Administrative Procedure Act’s (APA) mandated notice and comment requirement, that have the full force and impact of law. Meanwhile, OCR’s 2011 “Dear Colleague” letter, which does not address the process to be followed in connection with campus disciplinary proceedings for allegations of domestic violence, does not possess the status of law because that letter did not follow the required APA notice and comment procedures.
Thus, it is clear that students charged with campus misconduct based upon allegations of domestic violence or dating violence need to refer to the Violence Against Women Act (VAWA) and its attendant regulations and not Title IX or the OCR’s 2011 “Dear Colleague” letter for guidance. A review of the regulations under the Violence Against Women Act (VAWA) demonstrate that institutions are to provide prompt, fair, and impartial disciplinary proceedings – not only for domestic violence and dating violence allegations, but also for sexual assault and stalking allegations. Indeed the VAWA regulations specify that:
officials must be appropriately trained without bias or conflict of interest;
that the accuser and the accused have equal opportunities to select advisors;
that the accuser and the accused receive simultaneous notice, in writing, of the result of the proceeding and available appeals procedures;
the proceeding is completed in a reasonably prompt timeframe;
the accuser and the accused are given timely notice of meetings at which one or the other or both may be present; and
the accuser, the accused, and appropriate officials are given timely and equal access to information that will be used during informal and formal disciplinary meetings and hearings (see 79 FR 62751, 62752).
Significantly, however, unlike the OCR’s 2011 “Dear Colleague” letter, VAWA does not prescribe an evidentiary standard to be applied in relevant campus disciplinary matters. This is very important. Whereas many schools claim that they are required to utilize the inappropriately lower “preponderance of the evidence” standard because the 2011 “Dear Colleague” letter tells them that they must, VAWA imposes no such requirement. Thus, if a student is alleged to have engaged in dating or domestic violence in a campus disciplinary proceeding, the school should be advised that Title IX rules and guidance letters are not mandatory and that due process (or fair process) requires, and VAWA permits, the imposition of a higher standard of proof (e.g. “clear and convincing evidence”).
Some may, and do, argue that Title IX and OCR’s interpretation of it covers campus allegations of domestic violence. I believe they are wrong. Domestic violence is not a recognized category of gender/sex harassment under either Title VII or Title IX. It is, however, specifically addressed in the Clery Act/VAWA/SaVE Act.
Those charged in campus misconduct proceedings with acts of domestic violence and dating violence should look to Clery/VAWA/SaVE Act for guidance and should strenuously advocate for the application of a higher standard of proof, consistent with contemporary due process jurisprudence, on behalf of the accused student.