Title IX of the Education Amendments of 1972, provides that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681(a) (emphasis added). In short: schools and universities receiving federal funding may not engage in gender discrimination. This may seem relatively straightforward, but that has not always proven to be the case. As the political tides shift and presidential administrations transition in and out, the implementation and reform of Title IX rules have remained hot points of contention—particularly within the last decade or so. One of the most notable areas of Title IX-related debate is the treatment of sexual misconduct complaints at schools and on college campuses.
From the 2000s to date, the DOE’s Office of Civil Rights (“OCR”) has periodically recalibrated its Title IX rules and guidance to conform with the respective views of the sitting presidential administration. This has, in effect, resulted in somewhat of a yo-yoing effect between two opposing stances on the appropriate approach to the investigation and adjudication of sexual misconduct allegations on college campuses. The first approach, promulgated primarily under democrat-led regimes, has emphasized the rights of the accuser (overwhelmingly, female) while limiting the due process protections afforded to the accused (overwhelmingly, male). This has included the requirement that schools adopt a lower standard of proof (“preponderance of the evidence,” i.e., more likely than not) in assessing whether those accused of sexual misconduct, such as rape, sexual assault and harassment, are responsible for the charges. Additionally under the first approach, the OCR has “strongly discouraged” schools from allowing the accused to cross-examine his accuser in order to protect the complainant from a potentially “traumatic,” “intimidating,” or “hostile” environment.
The second approach, on the other hand, requires that fundamental due process rights and protections (such as the right to cross-examination) be afforded to both parties in sexual misconduct proceedings to ensure a fair outcome, and to prevent schools from enforcing policies that encourage Title IX administrators to favor the accuser over the accused.
Although the OCR has, historically, framed its directives on Title IX as “guidance” or voluntary recommendations for schools to consider, this so-called guidance bears the threat of the loss of federal funding and of public investigations into those academic institutions that fail to comply with the OCR’s latest directives. And, unsurprisingly, when “guidance” from the federal government comes in the form of pressure and threats of material financial consequences, the natural response of schools across the country has been to shift their policies to comply.
The question for some might be: why should Americans care? If the bottom line is that Title IX prohibits schools from engaging in sex discrimination, and so long as schools have some form of reasonable procedures in place to address sexual misconduct complaints, does it really matter whether complaints dealt with informally on college campuses, rather than in court, adhere more closely to the first or the second approach described above? The answer, put plainly, is yes. It matters.
Complaints adjudicated within schools and universities are, of course, less formal than court proceedings and do not hold the criminal legal repercussions that a defendant would face in court. However, a student or faculty member who is accused of sexual misconduct on campus nonetheless faces academic-, professional-, and reputation-ending consequences if deemed guilty by a school of such charges—which frequently include serious allegations, such as rape, sexual assault, and sexual harassment.
Regardless of political leanings, Title IX policy should concern any American who has a son, father, friend, or family member studying or employed at a university. That is because when schools succumb to federal pressure to discard fundamental procedural protections of the accused and to embrace “guilty until proven innocent” mentalities (see approach 1 above), any male accused of sexual misconduct is put at significant risk that his career and reputation will be destroyed without ever having a meaningful opportunity to defend himself.
One of NCLA’s cases, Vengalattore v. Cornell University, serves as a prime example—and as a stark warning—of the egregious and unjust consequences that can result when colleges embrace the first approach described above and enact lopsided sexual misconduct policies that assume the veracity of the accuser and the guilt of the accused, while casting aside fundamental rights and protections that would otherwise serve to ensure a fair, unbiased outcome. NCLA’s client, Dr. Mukund Vengalattore, was a talented and well-accomplished physicist who joined Cornell University’s physics department as a tenure-track assistant professor in 2009. In the fall of 2014, after receiving universally glowing reviews from his students and colleagues up to that point in his career, Dr. Vengalattore was on the cusp of obtaining tenure at Cornell when any prospects of tenure—or of a future career in academia—came crashing down. Within days after the Cornell physics department voted in favor of granting Dr. Vengalattore tenure, a former female graduate student (“Jane Roe”) came forward with a complaint accusing Dr. Vengalattore of sexual assault in 2010—four years prior—and, subsequently, of engaging in a year-long romantic relationship with her through 2011. The Title IX investigation and proceedings that followed, concluding in early October 2015, all but guaranteed the destruction of Dr. Vengalattore’s career and reputation, while denying him any meaningful opportunity to defend himself or to clear his name.
Unbeknownst to Dr. Vengalattore, during the same time that Cornell was investigating Jane Roe’s allegations against him, Cornell was also in the process of actively revising its sexual misconduct policies to more closely conform with the DOE’s latest Title IX directives. The directives, among other things, pressured schools to aggressively pursue female students’ complaints and to employ procedures that would disadvantage the primarily male population of those accused of sexual misconduct.
In April 2011, the DOE had issued a “Dear Colleague Letter” laying out the steps that it felt were necessary to adequately investigate such complaints, including lowering the burden of proof in sexual misconduct investigations to the preponderance-of-the-evidence standard. In April 2014, the DOE had released further “guidance,” reinforcing its 2011 directive, discouraging schools from allowing complainants to be cross-examined, and, among other things, specifying that schools were expected to apply a “strong presumption” that sexual activity between a faculty member and an adult student was non-consensual. And in May 2014, the DOE had commenced a new practice of publicly identifying schools that it was investigating for failure to adequately address sexual assault or harassment claims. The DOE updated the list of schools under investigation weekly and, by 2015, Cornell had appeared on that list.
Cornell was plainly under pressure from the DOE to reform its Title IX and sexual misconduct policies, and it responded accordingly. Unfortunately, Dr. Vengalattore was caught in the crossfire and, ultimately, a major casualty of Cornell’s subsequent actions.
The ways in which Cornell deprived Dr. Vengalattore of his fundamental rights and of those procedural protections owed to him under Cornell’s own procedures are too voluminous to detail in a blog post (the reader can check our website for more details), but below are a few that are particularly noteworthy.
In the fall of 2014, when Jane Roe first came forward accusing Dr. Vengalattore of rape, sexual misconduct, and of a one-year sexual relationship, Cornell had in place a policy (“Policy 6.4”), which indisputably governed sexual misconduct claims brought against Cornell’s students and faculty members. Policy 6.4, however, provided additional procedures in cases in which a faculty member was accused of sexual misconduct in the context of a “subordinate-supervisory relationship” (including, as here, a faculty member and graduate student). These procedures included the right to confront and cross-examine witnesses (including the accuser), a hearing of the charges, and the application of an elevated “clear and convincing” standard of proof.
These additional procedures, however, ran counter to the DOE’s latest directives, which strongly discouraged schools from permitting the right to cross-examination and which required that the lower “preponderance of the evidence” standard of proof be applied in sexual misconduct proceedings. Cornell proceeded accordingly.
Indeed, despite Cornell’s acknowledgement that an investigation into Jane Roe’s claims would have been barred under Policy 6.4’s one-year statute of limitations, the Title IX investigators nevertheless investigated Roe’s complaint, contending that they could instead proceed under Cornell’s Romantic and Sexual Relationships (“RSR”) “policy”—which, in reality, was a statement of principle without a single reference to actual procedures, time limitations, sanctions, enforcement mechanisms, or the rights of the accused. According to Cornell, in the absence of procedures or any semblance of a process for handling violations, enforcement of the so-called RSR policy simply “default[ed] to the general supervisory authority” of the college dean who could exercise “general discretion” in how she wished to proceed and investigate Jane Roe’s claims. The way that the dean wished to proceed, in the absence of any meaningful procedures, was to deprive Dr. Vengalattore of his right to a hearing and of his right to cross-examine his accuser or any other witnesses against him, to apply the lower preponderance-of-evidence standard of proof, and to free Jane Roe from any burden of proof whatsoever, shifting the burden instead to Cornell, rather than the accuser.
At the same time, Cornell was in the process of revising its RSR “policy,” out of apparent recognition that a statement of principle without any guiding procedures could not serve to prohibit allegedly inappropriate romantic or sexual relationships, nor sanction members of the Cornell community for purported violations. Significantly, the lead Title IX administrator (Mr. Mittman) who was conducting the investigation into Roe’s allegations against Dr. Vengalattore also happened to be leading the efforts at Cornell to revise the RSR policy in accordance with the DOE’s directives. Mr. Mittman’s proposed revisions, guided by the DOE’s instruction that all romantic or sexual relationships between faculty and adult students should be presumed to be non-consensual, included strict enforcement mechanisms and disciplinary procedures, including a ban on all graduate student/faculty member relationships and the possibility of severe sanctions, including dismissal from Cornell. Mittman’s proposed RSR revisions did not provide for the procedural protections offered to accused faculty members under Cornell’s Policy 6.4 (i.e., no hearing, no cross-examination, no requirement of clear-and-convincing proof). Perhaps unsurprisingly, however, Cornell’s Faculty Senate ultimately took a vote and rejected the proposed revisions in November 2015.[1] By that time, however, Cornell’s investigation into Dr. Vengalattore’s alleged misconduct had already concluded, his rights already denied, and his career irrevocably and egregiously impacted. Dr. Vengalattore was deemed guilty of misconduct months before he was even informed of the charges against him.[2]
Dr. Vengalattore’s case is just one of numerous examples of the devastating consequences that Title IX rules and policy can bear when misapplied and directed as a weapon against the accused (primarily, men) in favor of the accuser (primarily, women), rather than as a shield (for all) against gender discrimination. The DOE and universities, alike, should strive to apply Title IX as intended, rather than using it to further perpetuate gender discrimination by favoring one group over another in sexual misconduct proceedings.
Without question, schools should strive to meet the needs of sexual misconduct victims on college campuses and to respect their rights during the course of sexual misconduct proceedings. Schools may not, however, automatically assume at the outset of such proceedings that the complainant is the victim and the respondent the perpetrator. Campus adjudications are not a zero-sum game with respect to the rights afforded to either party. Indeed, both parties may, and must, be afforded sufficient procedural rights and protections to ensure a fair outcome, rather than an English Star Chamber’s pre-judged ruling. Any campus justice system that assumes one party’s guilt while denying that party any meaningful way to prove otherwise, is a broken system, and a very dangerous one at that. Title IX was intended to serve as a shield, not as a weapon to be wielded against the accused. Let’s hope that future administrations keep that in mind. Livelihoods depend on it.
[1] A revised RSR policy would not be formally adopted by Cornell until 2018.
[2] Jane Roe submitted her charges to Cornell in late September 2014, yet neither the Title IX investigators, nor the dean making the ultimate determination both in Dr. Vengalattore’s tenure review and in the Title IX investigation informed Dr. Vengalattore that he had been charged with rape and sexual misconduct until March 2015—that is, not until after each stage of Dr. Vengalattore’s tenure review had concluded, after the dean had made her final decision to deny him tenure, and after Dr. Vengalattore notified Cornell that he would appeal the denial, rather than go quietly and leave the university.