09/30/2013 09:25 pm ET Updated Nov 30, 2013

A Tale of Two Montanas: The Department of Education's Title IX Enforcement Hypocrisy

The U.S. Department of Education's Office for Civil Rights ("OCR") is the federal agency responsible for enforcing Title IX, a law that requires disciplinary processes for sexual assault on college campuses to be equitable and impartial. By definition, "equitable" means fair to both parties; depending on the biases of a particular campus officer, both alleged survivors of sexual violence (whom OCR terms "complainants") and alleged perpetrators risk abuse and miscarriages of justice. Yet as a recent Title IX settlement with the University of Montana demonstrates, the Department does not care about university mistreatment of accused students. OCR only requires universities to treat complainants properly, even when an institution has a documented record of violating both complainant and accused student rights.

Consider the following background. In May of 2012, a student identifying himself as "John Doe" filed suit against the University of Montana claiming he was about to be railroaded into a false conviction for sexual assault. Although the judge hearing the case dismissed it based on a legal technicality, the decision noted that "the process applied to Plaintiff Doe and the behavior of University officials in investigating and prosecuting this matter offends the Court's sense of fundamental fairness and appears to fall short of the minimal moral obligation of any tribunal to respect the rights and dignity of the accused" (p. 208 of 281 in the record in the case, available here). In other words, a federal judge issued an opinion noting that the University of Montana's sexual assault grievance process is fundamentally unfair to accused students.

One year later, in May of 2013, OCR announced a joint Title IX settlement with that same university and the U.S. Department of Justice. OCR touted the settlement as a "blueprint for colleges and universities throughout the country" (p. 1), notwithstanding the serious First Amendment issues it raises. Importantly, OCR claims it examined every sexual assault grievance that the University received during the 2011-12 school year as part of the settlement process (p. 10). Surely, then, the Department would have something to say about Doe's case and the inequitable treatment he experienced.

Wrong. Nowhere in OCR's 31-page, single-spaced letter of findings does the Department mention Doe's case or any instance in which an accused student was mistreated. Perhaps OCR somehow overlooked what a federal judge described as fundamental unfairness in sexual assault complaint resolution. Perhaps the Department examined Doe's case (and presumably other cases like it) and simply did not care. Either way, OCR's settlement assumes that the University of Montana fits a familiar narrative about rape on campus -- that schools universally and exclusively mistreat survivors who come forward to share their stories -- instead of acknowledging the more complex and nuanced reality that both complainants and accused students are at risk. A university's poor treatment of one does not exclude equally bad treatment of the other.

OCR's glaring omission in the University of Montana settlement is reflective of its broader refusal to seriously consider the rights of accused students like Doe. The Department's enforcement of Title IX is hypocritical, one-sided, and Orwellian: much as "some animals are more equal than others," on campus some people are entitled to more equity in their grievance processes. Title IX entitles alleged perpetrators and alleged survivors of sexual violence alike to a fair and impartial disciplinary process, and OCR is supposed to hold universities accountable for violating the law. OCR's shameful failure to evenhandedly enforce its statutory mandate does a disservice to college students everywhere.