Title IX: Targeting men for whose protection? | HBR Talk 47

If you’ve ever worked for a corporation, you’ve probably had some dealings with their human resources department. Maybe you’ve had questions about your insurance benefits, had to take leave from work, or needed additional information when filing your taxes. Often these are handled by human resources departments, but they’re not the department’s main function.

That is to keep their employer, your employer, from being sued. The easiest two ways to find that out are to have a complaint that merits human resources processing, or to be the subject of a complaint, whether it merits human resources processing or not. Suddenly, you are the fly in your workplace’s ointment, and while the process you go through to resolve whatever complaint has been made will seem as straightforward as it can possibly appear, you’ll soon find out the ultimate goal is to preserve the ointment by removing the fly.

Your only protection is the same as it ever has been: Keep your head down, follow the rules, document everything, save every scrap of paperwork you receive including your copies of any evaluations you’ve gotten, and always… always be recording. It won’t save your working relationships with your colleagues. It can prevent a false accusation from leading to a full investigation, but not always. It won’t necessarily preserve your job for very long if you are accused or have to make a complaint, either. What it will do is make it hard for your employer to get rid of you before you find another job. It may provide you with the evidence you need to sue for compensation if you’ve been illegally mistreated by your employer. 

What does this have to do with Title IX?

Title IX has created a university administration to student equivalent of the lawsuit-prevention function of corporations’ human resources department, and it comes with its own kangaroo court system. When a complaint is filed, the institution's Title IX coordinator and staff do not know who is honest, and who is lying, and they don’t care. They only know, or care, that their handling of the situation is the only thing that stands between the university and a discrimination lawsuit. In the end, that is likely to be their only concern.

Historically, this has meant bending over backward to accommodate female accusers, but protect accused women, per the ideological guidance of the gender studies department, as women were the individuals most likely to sue over the outcome when it didn’t meet their expectations. That was exacerbated by the guidelines laid out in the Clery Act, the Dear Colleague letter, and the Campus Save Act, which all were written to mostly presume victims would be women, to mostly presume perpetrators would be men, and to mostly exclude the presumption of innocence from universities’ Title IX hearings. With Education Department guidance and aspects of the law supporting female and only female accusers rather than due process, it would seem safest for the university to assume that female dissatisfaction with the process would more likely lead to university liability than would any dissatisfaction expressed by the men, especially accused men. 

These standards resulted in a tidal wave of incidents in which accused students were railroaded through egregiously biased, unbalanced, and incompetent university tribunals following accusations that should have been handled by real law-enforcement. 

Jonathan Taylor of Titleixforall.com, who has been tracking this phenomenon, has noted over 200 lawsuits alleging due process and related claims against educational institutions in the wake of their kangaroo court hearings. The lower courts have already begun to find against universities in some of these lawsuits. Among other legal points, judges have ruled that accused students have the right to face their accuser, and recently two court rulings upheld an accused student’s right to cross-examine his accuser. Some institutions like the University of Southern California are facing multiple lawsuits by male students deprived of their due process rights or otherwise discriminated against in the course of Title IX complaints. Students have won judgements against universities for such violations, and judges have forced some institutions to provide plaintiffs in lawsuits against them with their Title IX training materials for examination. 

It is becoming obvious to administrators at this point that they cannot just presume a Title IX complaint true or valid and go from there, nor can they bias their response depending on the sex of the accused vs the sex of the accuser. Throwing male students under the bus to defend against the wrath of female students will not protect their institutions from repercussions should their procedures and policies, or their administration of them, be unfair. 

With their cookie-cutter solutions becoming problems in-and-of-themselves, Title IX administrators and their subordinates are scrambling to figure out how to handle the cases arising from sexual misconduct and harassment allegations without making their employers vulnerable to more lawsuits. As a result, they are now consulting with attorneys who have handled some of the lawsuits caused by university mishandling of conflicts on campus. 

The Rowen University Title IX conference offered a presentation on this very subject: How to avoid a Title IX Lawsuit: Lessons Learned and Best Practices for Respondents. Tonight we’ll be looking through the slide show for this presentation, as our undercover badger explains what was discussed by the presenter.