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29 Yale J.L. & Human. 273 (2017)
Due Process Demands as Propaganda: The Rhetoric of Title IX Opposition

handle is hein.journals/yallh29 and id is 285 raw text is: Due Process Demands as Propaganda: The Rhetoric of Title LX Opposition Annaleigh E. Curtis* INTRODUCTION How universities should deal with campus sexual assault is thorny and divisive, perhaps more so than any other current topic in the academy. Title IX is at the center of the debate on this issue, particularly following the issuance of the Dear Colleague Letter (DCL) by the Department of Education's Office of Civil Rights (OCR) in 2011.1 The DCL made it clear that sexual assault and harassment are a form of sex discrimination proscribed by Title IX and outlined some necessary features of the adjudication of these issues. Beyond its formal requirements, the DCL made clear that OCR was going to dedicate more attention to the issue. This Article will focus on a particular kind of objection to Title IX, which I call due process demands. They may take many forms, but the central idea is that students2 who are accused of misconduct, like sexual harassment or assault, are denied due process in campus adjudications- that such adjudications are unfair to the accused. This has become a criticism of Title IX, rather than universities themselves, largely because of the DCL, which clarified some of the ways that universities must conduct these adjudications. This, in turn, is taken to be either a devastating objection to compliance with the DCL and/or an imperative on universities to provide more process for the accused, whether within the bounds of the DCL or not. I argue that such demands function as political rhetoric, specifically as a sort of propaganda, drawing on a recent * Lawyer in private practice. The views expressed in this Article are my own and do not represent the views of my employer. I thank Kevin Tobia and the Yale Journal of Law & Humanities for their help. I also thank Alison Jaggar, Diane Rosenfeld, Jason Stanley, Jennifer Saul, Antuan Johnson, Barrett Emerick, and Jason Wyckoff for their thoughts on previous drafts. 1. The future of the DCL is now quite tenuous under the Trump administration. See, e.g., Christina Cauterucci, What Will Happen to Title IX Under Trump?, SLATE, Feb. 2, 2017, available at http://www.slate.com/articles/double_x/doublex/2017/02/ trump couldundoobama-s title ixprotectionsfor rape victims and trans.html. 2. I will focus on the case of student-on-student harassment and assault rather than professor-on- student harassment and assault. Both are serious problems on campus, they are related to each other in ways we should not ignore, and due process demands are made in both cases. However, the legal rules for the cases differ, so it pays to be distinct in dealing with them even abstractly. 273

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