The Human Touch Revealing All that is Real
Do Title IX Proceedings Count as Legal Processes, or Don’t They?
Publisher's Note: This post appears here courtesy of The James G. Martin Center. The author of this post is KC Johnson.
The Obama administration's efforts to use Title IX to pressure universities to crack down on campus sexual assault transformed higher-education law. To date, 512 accused students have filed federal lawsuits (more than 200 have filed suit in state courts), and they've enjoyed surprising success-securing favorable rulings from the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuit Courts of Appeal. The specific facts and legal theories vary from case to case. But the core issue remains whether campus procedures that "have been compared unfavorably to those of the infamous English Star Chamber" have sufficient procedural integrity to be reliable.
During June, this debate manifested itself in a highly unusual way-with campus accusers claiming that their schools' Title IX procedures had sufficient reliability to allow accusers to seek protection from the courts. This question matters because colleges have long gotten around basic rights-of-the-accused norms by arguing that campus tribunals are not the equivalent of trials. If such tribunals are formal legal processes, then accused students must be given rights. If they aren't, then certain abuse-of-process and witness-immunity questions cannot go accusers' way.
The first case in question involved events at King's College, in Wilkes-Barre, Pennsylvania. In fall 2020, a female student, Devin McCarthy, filed a Title IX complaint against a male student, Daniel Boye. The university adjudicated the case favorably for McCarthy, and Boye was expelled.
While the case was ongoing, Boye-on the advice of his lawyer-filed his own Title IX claim against McCarthy. (The specific rationale for Boye's complaint is unclear, but courts sometimes have dismissed accused students' lawsuits if they didn't file a complaint against the accuser with the college.) According to McCarthy's eventual lawsuit, Boye later recanted his version of events. After securing Boye's expulsion, McCarthy sued him-and his lawyer-alleging (among other things) an "abuse of process" for his filing of an allegedly baseless Title IX counter-complaint against her.
Under Pennsylvania law, an abuse of process involves the "use [of] legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process." This kind of claim, in short, requires that there be a legal "process" subject to abuse. But universities routinely claim, as previously mentioned, that their Title IX procedures do not constitute a legal process. They do so to justify not giving accused students rudimentary procedural protections.
The report and recommendation from Magistrate Judge Martin Carlson ignored that history. It instead described campus Title IX proceedings as "quasi-judicial disciplinary proceedings which are accompanied by a full panoply of due process protections." Carlson reached this conclusion despite the fact that, even under the DeVos Title IX regulations, accused students lacked among other things the right to an impartial tribunal, the right to appeal due to insufficiency of evidence, or the right to ensure that adverse witnesses testify under oath and in public. Judge Carlson was willing to concede only that "this issue is not entirely free from doubt."
After a conversation with Laura Dunn, a lawyer who often represents campus accusers, Inside Higher Ed reported that "the case had been the talk of her circle of Title IX lawyers," with Dunn hoping that the magistrate judge's report would discourage accused students from filing counter-complaints.
Perhaps. But the report hasn't yet been accepted by the district court judge-and in the meantime, another court has reached a radically different conclusion about the integrity of the campus Title IX process.
That decision came from the Connecticut Supreme Court, addressing a lawsuit filed by former Yale student Saifullah Khan. In 2015, a female student (Jane Doe for identification purposes) accused Khan of sexual assault. She reported the incident both to Yale and to the police. Three years later, Khan was acquitted in court; after the trial, comments from several of the jurors suggested that the key issue wasn't the standard of proof (beyond a reasonable doubt) but simply that they didn't believe the accuser. Khan was briefly reinstated at Yale, only for the university (under campus pressure) to re-launch the Title IX process, even though his accuser had by this point graduated. After a process that provided none of the procedural protections of his criminal trial, Yale found Khan guilty and expelled him.
Like many accused students in comparable situations, Khan sued Yale for gender discrimination under Title IX-but, more unusually, he also sued his accuser for defamation, citing the allegations she had made to Yale. (As a witness at a criminal trial, the accuser had absolute immunity for her remarks to the jury.) Reflecting its general legal strategy in accused-student lawsuits, Yale didn't seek to dismiss Khan's complaint.
The accuser, however, took a different approach. Like the complainant in the King's College case defending the integrity of campus Title IX procedures, she maintained that Yale's Title IX process sufficiently resembled a criminal process, and that she therefore deserved absolute immunity for everything she had told Yale officials. District Judge Kara Dooley, a Trump nominee, endorsed the argument, and Khan appealed to the Second Circuit. The appeals court held that Connecticut law on the question was unclear, and it certified questions for the state's Supreme Court.
Sensing the high stakes of any ultimate decision, a coalition of 15 feminist and accusers'-rights organizations filed an amicus brief on Doe's behalf. The coalition, which included such heavyweights as the National Women's Law Center and the nation's most powerful accusers'-rights organization, Know Your IX, argued that since "[f]alse accusations of sexual assault are exceedingly rare," there was no real reason not to give accusers absolute immunity, especially since Yale's specific "disciplinary procedures" were "legally-obligated." (In fact, no law required Yale to deny Khan the right to cross-examination, a hearing transcript, or the ability to have full legal representation in Yale's proceedings.) The state Supreme Court rejected an initial version of the amicus brief because the coalition included material outside the record: It described Khan, despite his acquittal at trial, as a "rapist."
Oral argument didn't go well for Doe and Yale (which didn't even bother to file a brief in the case). Several justices, each of whom had been nominated by a Democratic governor, expressed concerns about the fairness of Yale's procedures. Justice Steven Ecker noted the obvious: that universities aren't neutral in Title IX cases and in fact have an overwhelming interest, for business reasons, to tilt Title IX procedures in favor of complainants-which is what most prospective students want to see.
The Connecticut Supreme Court unanimously held that Yale's Title IX procedures lacked sufficient integrity to entitle the accuser to absolute immunity. Its core holding provided a ringing defense of procedural fairness, noting that "statements made in sexual misconduct disciplinary proceedings ... without adequate procedural safeguards carry too great a risk of unfair or unreliable outcomes." The court cited five factors-no testimony under oath, no right to cross-examination, no meaningful appeal rights, limited right to call witnesses, and limited assistance of counsel-to explain why Yale's Title IX procedures could not be deemed quasi-judicial.
Predictably, the Khan decision has generated widespread fury from figures who have championed the interests of campus complainants. Know Your IX co-founder Alexandra Brodsky fumed that "school discipline doesn't need to look like a criminal trial." She suggested that college students facing expulsion and lifetime branding as a sexual predator deserve no more rights than high-school students facing a 10-day suspension. Wayne State law professor Nancy Chi Cantalupo went even further, faulting the Connecticut justices for exalting the value of cross-examination, since (she claimed) "adversarial proceedings do not result in better fact-finding in these cases."
It's easy to see why the Connecticut Supreme Court decision so enraged the likes of Brodsky and Cantalupo-as well as why they might have taken comfort in Magistrate Judge Carlson's report. For more than a decade, aligned first with the Obama and now with the Biden administration, activists have championed a campus Title IX system that seeks to vindicate the claims of campus accusers by denying accused students a fair chance to defend themselves. If the system can further shield accusers from subsequent defamation lawsuits, all the better.
In light of the Connecticut decision, that's now going to be harder to do.
KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.
Go Back
The Obama administration's efforts to use Title IX to pressure universities to crack down on campus sexual assault transformed higher-education law. To date, 512 accused students have filed federal lawsuits (more than 200 have filed suit in state courts), and they've enjoyed surprising success-securing favorable rulings from the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuit Courts of Appeal. The specific facts and legal theories vary from case to case. But the core issue remains whether campus procedures that "have been compared unfavorably to those of the infamous English Star Chamber" have sufficient procedural integrity to be reliable.
During June, this debate manifested itself in a highly unusual way-with campus accusers claiming that their schools' Title IX procedures had sufficient reliability to allow accusers to seek protection from the courts. This question matters because colleges have long gotten around basic rights-of-the-accused norms by arguing that campus tribunals are not the equivalent of trials. If such tribunals are formal legal processes, then accused students must be given rights. If they aren't, then certain abuse-of-process and witness-immunity questions cannot go accusers' way.
The first case in question involved events at King's College, in Wilkes-Barre, Pennsylvania. In fall 2020, a female student, Devin McCarthy, filed a Title IX complaint against a male student, Daniel Boye. The university adjudicated the case favorably for McCarthy, and Boye was expelled.
While the case was ongoing, Boye-on the advice of his lawyer-filed his own Title IX claim against McCarthy. (The specific rationale for Boye's complaint is unclear, but courts sometimes have dismissed accused students' lawsuits if they didn't file a complaint against the accuser with the college.) According to McCarthy's eventual lawsuit, Boye later recanted his version of events. After securing Boye's expulsion, McCarthy sued him-and his lawyer-alleging (among other things) an "abuse of process" for his filing of an allegedly baseless Title IX counter-complaint against her.
Under Pennsylvania law, an abuse of process involves the "use [of] legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process." This kind of claim, in short, requires that there be a legal "process" subject to abuse. But universities routinely claim, as previously mentioned, that their Title IX procedures do not constitute a legal process. They do so to justify not giving accused students rudimentary procedural protections.
The report and recommendation from Magistrate Judge Martin Carlson ignored that history. It instead described campus Title IX proceedings as "quasi-judicial disciplinary proceedings which are accompanied by a full panoply of due process protections." Carlson reached this conclusion despite the fact that, even under the DeVos Title IX regulations, accused students lacked among other things the right to an impartial tribunal, the right to appeal due to insufficiency of evidence, or the right to ensure that adverse witnesses testify under oath and in public. Judge Carlson was willing to concede only that "this issue is not entirely free from doubt."
After a conversation with Laura Dunn, a lawyer who often represents campus accusers, Inside Higher Ed reported that "the case had been the talk of her circle of Title IX lawyers," with Dunn hoping that the magistrate judge's report would discourage accused students from filing counter-complaints.
Perhaps. But the report hasn't yet been accepted by the district court judge-and in the meantime, another court has reached a radically different conclusion about the integrity of the campus Title IX process.
That decision came from the Connecticut Supreme Court, addressing a lawsuit filed by former Yale student Saifullah Khan. In 2015, a female student (Jane Doe for identification purposes) accused Khan of sexual assault. She reported the incident both to Yale and to the police. Three years later, Khan was acquitted in court; after the trial, comments from several of the jurors suggested that the key issue wasn't the standard of proof (beyond a reasonable doubt) but simply that they didn't believe the accuser. Khan was briefly reinstated at Yale, only for the university (under campus pressure) to re-launch the Title IX process, even though his accuser had by this point graduated. After a process that provided none of the procedural protections of his criminal trial, Yale found Khan guilty and expelled him.
Like many accused students in comparable situations, Khan sued Yale for gender discrimination under Title IX-but, more unusually, he also sued his accuser for defamation, citing the allegations she had made to Yale. (As a witness at a criminal trial, the accuser had absolute immunity for her remarks to the jury.) Reflecting its general legal strategy in accused-student lawsuits, Yale didn't seek to dismiss Khan's complaint.
The accuser, however, took a different approach. Like the complainant in the King's College case defending the integrity of campus Title IX procedures, she maintained that Yale's Title IX process sufficiently resembled a criminal process, and that she therefore deserved absolute immunity for everything she had told Yale officials. District Judge Kara Dooley, a Trump nominee, endorsed the argument, and Khan appealed to the Second Circuit. The appeals court held that Connecticut law on the question was unclear, and it certified questions for the state's Supreme Court.
Sensing the high stakes of any ultimate decision, a coalition of 15 feminist and accusers'-rights organizations filed an amicus brief on Doe's behalf. The coalition, which included such heavyweights as the National Women's Law Center and the nation's most powerful accusers'-rights organization, Know Your IX, argued that since "[f]alse accusations of sexual assault are exceedingly rare," there was no real reason not to give accusers absolute immunity, especially since Yale's specific "disciplinary procedures" were "legally-obligated." (In fact, no law required Yale to deny Khan the right to cross-examination, a hearing transcript, or the ability to have full legal representation in Yale's proceedings.) The state Supreme Court rejected an initial version of the amicus brief because the coalition included material outside the record: It described Khan, despite his acquittal at trial, as a "rapist."
Oral argument didn't go well for Doe and Yale (which didn't even bother to file a brief in the case). Several justices, each of whom had been nominated by a Democratic governor, expressed concerns about the fairness of Yale's procedures. Justice Steven Ecker noted the obvious: that universities aren't neutral in Title IX cases and in fact have an overwhelming interest, for business reasons, to tilt Title IX procedures in favor of complainants-which is what most prospective students want to see.
The Connecticut Supreme Court unanimously held that Yale's Title IX procedures lacked sufficient integrity to entitle the accuser to absolute immunity. Its core holding provided a ringing defense of procedural fairness, noting that "statements made in sexual misconduct disciplinary proceedings ... without adequate procedural safeguards carry too great a risk of unfair or unreliable outcomes." The court cited five factors-no testimony under oath, no right to cross-examination, no meaningful appeal rights, limited right to call witnesses, and limited assistance of counsel-to explain why Yale's Title IX procedures could not be deemed quasi-judicial.
Predictably, the Khan decision has generated widespread fury from figures who have championed the interests of campus complainants. Know Your IX co-founder Alexandra Brodsky fumed that "school discipline doesn't need to look like a criminal trial." She suggested that college students facing expulsion and lifetime branding as a sexual predator deserve no more rights than high-school students facing a 10-day suspension. Wayne State law professor Nancy Chi Cantalupo went even further, faulting the Connecticut justices for exalting the value of cross-examination, since (she claimed) "adversarial proceedings do not result in better fact-finding in these cases."
It's easy to see why the Connecticut Supreme Court decision so enraged the likes of Brodsky and Cantalupo-as well as why they might have taken comfort in Magistrate Judge Carlson's report. For more than a decade, aligned first with the Obama and now with the Biden administration, activists have championed a campus Title IX system that seeks to vindicate the claims of campus accusers by denying accused students a fair chance to defend themselves. If the system can further shield accusers from subsequent defamation lawsuits, all the better.
In light of the Connecticut decision, that's now going to be harder to do.
KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.
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