Title IX: Bad-Actor Bureaucrats Must Pay

In May, an appeals court ruled against Texas’s Rice University and in favor of a student athlete in a case about Title IX, the federal law banning sex discrimination in schools, but now used for dating mishaps on the theory that they represent sex bias. The case shows what’s wrong with this law and also what’s wrong on campus. And, unfortunately, the Biden Administration is making matters worse by giving more power to Title IX personnel – the very people causing all the problems.

In the fall of 2017, “Doe” was a male student at Rice University on a football scholarship. He began dating “Roe,” a female student. They eventually entered a sexual relationship, after having discussed their sexual histories. Doe explained that he’d had a “run in” with herpes in high school. The two broke up in early December and shortly thereafter Roe texted Doe saying she had herpes and “most likely got it” from Doe. On December 15, Roe contacted the school’s Title IX office to complain of contracting herpes from a student who failed to inform her of his infection – which was false – and on December 18, she called university police to press criminal charges. The police declined, saying it could not prove Doe’s intent to spread infection.

In January, Roe saw the Director of Rice’s Student Judicial Program (SJP), Emily Garza, who filed a formal disciplinary complaint against Doe on February 12. On February 13, Garza emailed Doe a “no contact order” with respect to Roe and also requested an in-person meeting the next day. Doe asked to postpone the meeting so he could get legal advice. Rice University apparently viewed this request as a lack of cooperation because it then suspended Doe from school and banned him from campus.

Garza informed Doe that SJP was investigating whether Doe had “intentionally inflicted, or attempted to inflict, mental or bodily harm on a person” or if he had acted with “reckless disregard from which mental or bodily harm could result.” Garza also viewed the case as “dating violence” under Title IX and the school’s sexual misconduct policy.

During the investigation, Doe and his lawyer stressed three points: First, Doe had informed Roe that he had had herpes in high school, so what was Doe’s actual offense? Second, Roe had had other sex partners who could have infected Roe; was that being investigated? And third, Roe had admitted that she was not going to tell her future sex partners about her herpes diagnosis so why wasn’t the school also investigating her? Doe claimed all this added up to bias against him, based on his sex, also a violation of Title IX.

None of these points mattered. On April 17, Garza found Doe at fault for failing to “adequately notify Roe … of the fact that she was at risk of contracting [herpes] … if they engaged in unprotected sex,” and that Doe’s failure to clearly disclose this information was “a reckless action from which mental or bodily harm could result …” Additionally, Doe “never informed Roe of the details of his disease, the long-term effect, or how it was spread.” On April 19, Rice’s Athletics Department released Doe from the football program and ended his scholarship. In July, Doe was forced to withdraw from the University.

Doe sued the university a year later, alleging it had violated due process when it punished him for wanting time to find a lawyer, and it had also violated Title IX because it held him to a different standard than Roe, suggesting sex bias. But the trial court rubber stamped the university’s actions and dismissed Doe’s case.

Doe just won on appeal, however, with the Fifth Circuit finding that the university did indeed violate his right to due process, not just for punishing his wanting a lawyer but also for moving the goal posts on what his offense was: “Roe accused Doe of failing to inform her of his herpes diagnosis and this was the charge Doe defended against … but [the university] sanctioned Doe … for failing to go further … [and not] informing Roe of the risks of having sex with a herpes carrier, despite the fact that no such rule appears in Rice’s student code.” The Court also agreed with Doe about sex bias: “Doe posed such a threat … that he needed to be banned from campus … but [Rice did not require] that Roe even disclose to her sexual partners that she had herpes …” The case now returns to the lower court that dismissed Doe’s case, either for trial or for settlement.

As satisfying as the Fifth Circuit opinion is for advocates of due process and fair treatment for both men and women, the vindication comes very late for Doe, considering the case began in 2017. The six intervening years – when Doe was likely age 18 to 24 – are prime years for athletics and also for one’s academic career, which Doe spent defending himself from a “dating violence” charge.

What’s more, those responsible for the injustice aren’t facing consequences: As an employee of Rice University, Garza is an agent of the school and so only the school can be sued, not Garza. And the judge who rubber stamped Garza’s actions can’t be penalized since judges, like prosecutors, enjoy complete governmental immunity – that is, they can never be sued for their official conduct.

Obviously, things must change. For starters, school personnel should be at risk of personal liability for their negligent and wrongful actions in Title IX cases since the consequences are so ruinous for others. In fact, ensuring school staff have “skin in the game” would be a good project for the Education Department. If Title IX staff, and others like them on campus, were at risk of personal liability for their actions, their behavior would improve overnight.

But, incredibly, the Biden Education Department wants campus bureaucrats to have more power, not less, and less accountability, not more! For example, it proposed a new Title IX rule last summer that would allow campus bureaucrats to hold “individual meetings” for complaints like Roe’s, rather than formal hearings. This sounds like the single-investigator model used for Doe and responsible for similar campus kangaroo courts around the country. “Individual meetings” mean no formal record, no oversight and complete discretion for Title IX personnel. It’s a recipe for more due process nightmares and casualties like Doe.

Obviously, the “hook up” culture at college is hurting everyone … except Title IX administrators who need dating mishaps to become Title IX complaints so they can rationalize their jobs.

Congress needs to neutralize this conflict of interest and allow for personal liability of bad- actor campus bureaucrats. As has been said before: Make them pay and watch things change.

Teresa R. Manning is Policy Director at the National Association of Scholars, Vice-President of the Virginia Association of Scholars, and a former law professor at Scalia Law School, George Mason University. 

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About Teresa R. Manning

Teresa R. Manning is the policy director at the National Association of Scholars and a former law professor at Scalia Law School, George Mason University.

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