Princeton Goes For The Title IX Jug Handle

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.

11 thoughts on “Princeton Goes For The Title IX Jug Handle

  1. Richard Kopf

    Scott,

    It is early here. I will be observing the picking of a criminal jury during COVID to prepare me for next week. (The irony of your post is therefore palpable, due process, etc.) That said, I have a serious although probably dumb question.

    Are the offenses listed after “And” the “only” offenses that escape live cross under Princeton’s idiosyncratic policy?

    All the best.

    RGK

    1. SHG Post author

      That’s a hard question to answer given that the words are sufficiently untethered to any meaningful definition as to encompass everything, and there doesn’t seem to be any line precluding an offense falling on whichever side best suits an accuser’s desire.

  2. John Barleycorn

    Improper Conduct Related to Sex? And just when Princeton was starting to regain some momentum feeding imaginative ones, of their own, to the long bench at One First Street too…

  3. Lee

    Across the board reform for college discipline that included all kinds of offenses would have prevented this, but Devos decided to single out sexual misconduct.

    1. SHG Post author

      DeVos only has jurisdiction over Title IX, so if colleges want to manufacture a range of offense beyond Title IX, they can do so and bear any responsibility under state law for the harm they do.

      1. Charles

        Just the one implying that, even if the government tries to restrict going left, there still are ways of going left. At least, that’s what I got out of it.

  4. Rengit

    Unlike Harvard, Yale, Columbia, etc., Princeton doesn’t have pesky naysaying law faculty to weigh in or publish op-eds with ideas about “due process”, “adversarial model”, “evidentiary rules”, and “presumption of innocence”.

    1. SHG Post author

      A glaring gap in Princeton’s graduate program, which at least enjoys the prestige of the Woodrow Wilson School. Oh wait.

  5. KP

    It feels like the rules to detail every thrust and blow are being written by people who can no longer engage in those activities, so reading soft porn is their only excitement. I’m sure its related to America’s crazy age of consent at 18 instead of 16, European university students have passed through the ‘period of discovery’ by then. Maybe it’s the way to get women into high-paid & powerful jobs, by making sure men don’t get an education.
    So the lawyers coming out of those universities have a little compartment in their minds for ‘justice in trials with no evidence or defense’?

Comments are closed.