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.


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