As was clear to Southern District of New York Judge John Koetl, there was nothing about the new Title IX rules to justify a delay in their imposition. So Princeton’s decision to change its procedures to comply with the new rules on August 3d might seem like a wise choice.
During an Aug. 3 webinar open to the University community, the Council of the Princeton University Community (CPUC) voted to approve a revised Title IX policy to comply with federal guidance — as well as a separate “University Sexual Misconduct policy” addressing incidents outside of Title IX’s recently-narrowed scope.
But Princeton took it a step further, and in a somewhat different direction.
“Conduct that violated University policy last year will continue to violate University policy this year but … may be adjudicated under two different grievance procedures,” according to slides presented during the meeting.
Cases adjudicated under the Title IX procedure will include mandatory live cross-examination of witnesses — a policy the University previously advocated against — while University Sexual Misconduct Policy cases can rely on written cross-examinations. Both policies will create a “voluntary, remedies-based” restorative justice track, according to the Title IX policy page.
See what they did there? As the new Title IX regs simultaneously removed from their purview conduct that was beyond the scope of the university’s control, jurisdiction, business, and added in basic due process features like live cross examination for the conduct that still fell within Title IX’s grasp. The expectation was that colleges would keep their noses out of the crotches of their students when they didn’t belong there. But Princeton wasn’t about to stop sniffing around.
“We have both less freedom to operate within the Title IX sphere, and on the other hand, the Department of Education has said that they don’t particularly care what we do outside of that arena,” Minter said, explaining the two policies. “It’s an odd construct.”
What they’ve done is maintain all the “offenses” that the Department of Education ruled weren’t offenses under Title IX by keeping them as non-Title IX offense of Princeton University. Does it fall below the threshold of Title IX sexual harassment? Does it fall outside the school’s legal jurisdiction? Does it lack any cognizable legal definition? So what? Princeton has decided to make it an offense anyway, and since it’s not within the Title IX rules, they’ve similarly decided that they have no duty to provide the minimal due process the DoE imposed upon colleges.
When the Dear Colleague Letter was rescinded, and new rules were in the offing, it raised an obvious question whether the new rules would impose a regime that compelled colleges to give accused male students the appearance of process to defend themselves. Or would they stick with the program, the one they claimed was thrust upon them by the fiat.
Some colleges have chosen to accept the new rules and comply. Some remain in limbo. But Princeton found a way around the rules by its “odd construct.” Of course, it can no longer plead that it was doing so because of a psuedo-mandate from Catherine Lhamon, but that it affirmatively sought out a way to deny its male students a fighting chance to defend themselves of accusations that bore no connection to any duty the law imposed on the university.
It wants to be the sex police, and if Title IX doesn’t require it, all the more power to make it up themselves. In its largesse, Princeton will allow “written cross examination” outside of Title IX proceedings, which isn’t cross at all. Even for sex tribunals under Title IX, cross examination may not prove to be quite what was intended.
When asked by a PIXR [Princeton Students for Title IX Reform] member about how the University will prepare survivors for this cross-examination, Crotty said she would expect community members to utilize the predetermined financial resources. Additionally, Crotty stated that the University is engaging with different offices, including SHARE, and that a number of different individuals, “including residential college staff” and “people from [Counseling and Psychological Services]” will be involved in “supporting individuals going through this process.”
Not students. Not accusers. Not even witnesses. Survivors, which reflects that the bias infecting the system remains intact. But that they will suffer cross, but provide a panoply of “support” to protect accusers from being subject to the very rigors of cross that make it the best, and only, method of revealing false accusations, suggests that they will endure the process while doing what they can to assure no “survivor” suffers the pain and humiliation of being revealed as a liar.
Having come up with this way around the direct intersection of accusation and defense, the “jug handle” for those who have had the pleasure of passing through New Jersey, the question remains whether it will survive breach of contract suits for failure to provide due process and whether other universities will latch onto this effort to circumvent the law and prove their concern for “survivors” at the expense of male students. And there remains a question of whether accusers will tailor their accusations to circumvent the Title IX process so they can pursue their complaints without being subject to its slightly more rigorous process.
But for those who hoped that Title IX reform would put an end to both to the kangaroo courts, the deprivation of due process, the sacrifice of male students so colleges could prove to their female students how deeply they cared for their pain, whether real or imagined, this is the start of the next procedural push. Anticipate colleges to come up with imaginative work-arounds to circumvent the new Title IX rules and do what they always meant to do: make sure no “survivor” feels unseen and no accused male gets a chance to defend himself.