Campus Hook-Up Culture and Title IX Sex Police Meet Due Process

Teresa R. Manning

The sexual misconduct case of John Doe v. Grinnell College just settled, joining over 200 other such cases vindicating male students falsely accused of nonconsensual sexual relations on campus. It appears the college hook-up culture is moving from Title IX sex police to courtroom due process.

Title IX is the federal law which bans sex discrimination at schools receiving federal funds. Since 2011, when President Obama’s Education Department declared in a Dear Colleague Letter that sexual violence was a form of sex discrimination, it has required campuses to expand Title IX offices with coordinators, investigators, and adjudicators to handle sexual misconduct complaints. Acting as law enforcement, judge, and jury, these officials are sometimes referred to as the campus sex police.

John Doe was a sophomore in November 2015 when he learned that a female student had complained that two of their prior sexual liaisons one year earlier had been non-consensual. The female student did not want Doe formally investigated, but she also did not want him to attend her upcoming study abroad trip. The matter was resolved informally. A few months later, however, a second female student expressed the same concern about Doe regarding relations she had with him the previous summer. Grinnell’s Title IX Office then, on its own initiative, opened a formal investigation into both claims. Doe insisted his relations with both females were consensual.

To adjudicate, Grinnell hired Marsha Ternus, former Iowa Supreme Court Judge known principally as one of three judges kicked off the Court in a 2010 recall election after it mandated same-sex marriage under the state Constitution. Ternus met with neither the investigation team, nor the second female student, as required by Grinnell policy, but still found Doe at fault on both counts. She then recommended his expulsion, “based upon a predatory pattern of behavior.” Doe’s internal appeal failed. He later learned that Ternus had provided additional documents and commentary to Grinnell’s reviewing official in off-the-record communications, to which he had not been given the opportunity to respond.

Sensing that both the process and the personnel favored complainants from the start, Doe sued the College in March of 2017, claiming the school itself had violated Title IX by discriminating against him on the basis of sex. He also stated that Ternus’s off-the-record communications violated Grinnell’s own policies and his due process rights­—specifically, his right to a neutral judge.

In July, an Iowa federal trial court gave Doe almost complete vindication. In a ruling by Obama appointee, Rebecca Ebinger, the Court noted that the Grinnell policy required an impartial decision-maker and that the off-the-record communications here not only called that objectivity into question but also cast doubt on the legitimacy of the outcome. Even more seriously, the Court decided that Ternus herself seemed biased against Doe, in particular because she ignored exculpatory evidence of consent, including statements by the second female student that, “I turned back towards him, and was like I—I responded—I like kissed him … I guess I just felt like fine, it’s just sex.”

Doe’s case is one of 480 such lawsuits filed in both state and federal courts,
of which almost half have found in favor of males wrongly accused. These statistics alone indict the campus sex police and the current Title IX regime.

What went wrong?

First of all, campus personnel are not law enforcement and campus adjudications are not courts. Sexual violence is criminal activity and belongs in the criminal justice system—where both accusers and the accused have due process and other protections. These due process protections are lacking in the campus Title IX Office. Fortunately, Education Secretary Betsy DeVos has withdrawn the 2011 Obama guidance. The Trump Administration is expected to issue replacement regulations soon, which, judging by the draft DeVos released last November, will respect this distinction.

Second, it should be noted that the hyper-sexualization of campus culture combined with the politicization of higher education creates a perfect storm that injures everyone. As the hook-up culture name implies, sex is now almost the default activity, undercutting female resistance so that women find themselves later regretting sexual encounters.

At the same time, regretted sex is not coerced sex. In hindsight, women may claim these relations were non-consensual and, in fact, are often encouraged to do by an anti-male political bias on campus, as exemplified by the actions of Marsha Ternus in the Grinnell case. That a former judge, deemed too radical for the courts, found a comfortable home as a Title IX adjudicator speaks volumes about both campus politicization and the current state of Title IX.

The Grinnelloutcome may bring some justice to one aggrieved male student, but policy makers and schools would do well to re-think their entire approach to discrimination, dating, and sex to help prevent cases likeDoe’s in the first place. We need a better understanding of healthy relationships and more consensus on how to promote them, along with neutral decision-makers and basic due process protections when things go wrong.

Teresa R. Manning is the director of the National Association of Scholars' Title IX Project.

This article was orginally published by RealClearEducation.

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