Rushing to punish male before new regulations from the Department of Education
Following closely on the heels of its Ivy League peer in Cambridge, Princeton University has finally been sued for violating an accused student’s due process rights in a Title IX proceeding.
That means the entire Ivy League has now been hit with litigation stemming from the Obama administration’s Title IX guidance, rescinded a year ago by the Trump administration.
The Nov. 28 memorandum of law is seeking limited relief from the U.S. District Court in Trenton, New Jersey: an injunction against Princeton’s “pending” Title IX investigation while the Department of Education is writing new Title IX regulations, which may force the university to change its procedures.
Like the Harvard lawsuit, which focused on racial discrimination, the Princeton complaint alleges “John Doe” was treated differently because of his immutable traits – in this case, because of his sex.
He had actually told Princeton in January that “Jane Roe” was harassing him after a consensual sexual encounter several months earlier. But the school waited until November – 18 months after their encounter – to tell him that Roe had also complained and that he was under investigation, Doe claims.
The filing does not specify more about the encounter between Doe and Roe or their relationship, focusing instead on Princeton’s Title IX procedures, which were modified under threat from the Obama administration.
The school was an outlier by using a “clear and persuasive” evidence standard in Title IX proceedings, which roughly translates to 75 percent certainty of guilt. It didn’t even offer a position for Title IX administrator.
The Obama administration forced Princeton to lower the evidence standard to “preponderance” – better known as “more likely than not” – and hire an administrator in 2014, three years after its Title IX guidance was released.
The framework that Princeton devised in response banned cross-examination and prevented advisors such as lawyers from actively representing their clients, among other changes.
The school has refused to grant a “brief continuance” in Doe’s proceeding in violation of its own contract, which allows investigations to extend beyond 60 days when investigators have “good cause” or “other legitimate reasons”:
It is hard to imagine better cause for an extension than a shifting framework under which universities will be conducting Title IX investigations.
The “integrity and completeness” of the investigation is also imperiled if it continues, since the Department of Education’s proposed regulation “would modify the parties’ obligations and rights in connection with the presentation of evidence during the proceeding.”
Now subject to public comment, the proposed Title IX regulation would require cross-examination by the parties’ advisors, as well as the use of the same evidence standard for both sexual and nonsexual conduct disciplinary proceedings that have similar potential sanctions.
Princeton will be in “anticipatory” breach of contract if it denies Doe “the benefit of the amended [Title IX] regulations” by continuing with the investigation during the federal rulemaking, the filing alleges.
The university has nothing to lose by pausing the proceeding, while Doe has everything to lose – “reputational and educational injuries for conduct that he unequivocally denies” – if Princeton rushes forward to beat the changed regulatory landscape. He’ll suffer irreparable harm that monetary penalties on Princeton can’t fix.
h/t KC Johnson