"Where People Disagree Is on What Fair Actually Looks like:" Balancing Rights of Victims and Accused in Campus Sexual Assault Cases

Background

Over the last decade, institutions of higher education (IHE) have honed their policies to address and remediate hostile environments on the bases of gender, such as sexual assault, that impede students’ right to an equal education under Title IX. Starting in September 2017 and culminating in regulations released in May 2020, the Department of Education (DOE) began changing Title IX guidance to enhance due process protections for accused students, claiming that campus processes favored victims. This framing places the rights of the victim in contention with those of the accused. However, little systematic investigation has been conducted to understand how the rights of accused and victims play out in Title IX policy development and implementation at IHEs. The purpose of this study was to identify how university personnel conceptualize and operationalize “due process” in Title IX procedures.

Methods

In 2018-2019, semi-structured interviews were conducted with 25 IHE professional staff responsible for Title IX implementation. Participants were located at a variety of IHEs (2/4 year; rural/urban) throughout the US. Participants were asked about Title IX policy development and implementation at their IHE, and about the anticipated changes in DOE guidance. Interviews were conducted via phone, audio-recorded, and transcribed verbatim. Transcripts were uploaded to Dedoose for analysis. Coding occurred in two stages, initial inductive coding followed by axial coding, using a constant comparative approach. Increasingly complex theoretical memos were written throughout the coding process, forming the basis of findings. Multiple coders and regular peer debriefing contributed to analytic rigor.

Results

Overwhelmingly, personnel felt that that their campus processes were fair to both the victim and accused. However, variations in the meaning of “due process” emerged according to disciplinary background and training. Administrators, Title IX coordinators and other conduct officers framed due process in terms of procedural justice: they felt that each step of the Title IX process should be the same for both victim and accused. In contrast, social workers and advocates used a combination of three perspectives when discussing due process: procedural justice, substantive justice, and distributive justice. This approach, which we call an equity justice framework, acknowledged several priorities: (1) providing each party with supportive resources throughout the process; (2) appropriately penalizing those found responsible of sexual misconduct; and (3) remedying pervasive rape culture that make women unsafe on campus. Those espousing an equity framework expressed concern that the anticipated changes to DOE Title IX guidance would have unintended negative effects on victims’ due process rights.

Conclusions and Implications

While campus personnel felt that Title IX procedures on their campuses were fair to both victim and accused, they articulated different understandings of due process, largely linked to their professional and disciplinary training. As Title IX processes often require inter-professional communication and decision-making, these differences may be critical. More research is needed to understand the dimensions and pervasiveness of the equity justice framework found in this study. Additionally, future research should assess how frameworks of procedural justice and equity justice influence adjudication and sanctioning in Title IX cases.