Tough Title IX Rules Upheld, But Universities Have Alternative
Colleges and Universities Now Permitted to Stop Investigating Rape Complaints
But colleges and universities now have the ability to opt out of most of the rules, save considerable sums, avoid conflicts of interest and other problems which conducting rape investigations and conducting hearings where required, says public interest law professor John Banzhaf, who was successful in fashioning this opt out provision in the Title IX rules.
Indeed, the new rules permit and even encourage colleges and universities to stop investigating the complains entirely, notes Banzhaf, who successfully argued for this largely overlooked provision
The new Title IX rules, which replaced the earlier guidelines, were heavily criticized for different reasons by various competing interests, but few seemed to notice that the new regulations permit and even "encourage" colleges to avoid all of the problems, and even law suits, involved with conducting their own investigation and campus trials, suggests professor Banzhaf.
DoEd has now formally endorsed and encouraged the use of entirely new methods for dealing with such complaints which it says "represent the potential for innovation" to "impartially reach accurate determinations while treating both parties fairly."
Indeed, it went so far as to promise that "the Department will provide technical assistance . . about pursuing" these novel approaches which are designed to avoid all of the problems which occur whenever an institution purports to investigate itself, says Banzhaf, who formally proposed this new approach to the agency.
In a nutshell, the plan which DoEd has now formally endorsed permits and even now encourages individual colleges and universities to get out of the business of investigating and adjudicating claims of rape on their own campus. Instead, many colleges in a city or region would establish and fund - on a pre-determined pro-rata basis - an independent regional center which would hire its own staff to conduct investigations of rape allegation from all of it members, and then conduct hearings to determine guilt or responsibility.
This, Banzhaf successfully argued to DoEd, would not only save many millions which universities now spend to comply with the rules, but also eliminate the three major problems which exist today: inherent and inescapable conflicts of interest, inadequate investigatory resources, and inexperience and inability to conduct fair hearings.