Disclaimer: I’m not an attorney (yet) and nothing I say here is intended as legal advice.
They’re never going to get rid of the requirement that universities investigate these things. Universities have the same responsibility to investigate sexual harassment and the like under Title IX that employers do under Title VII.
What doesn’t make any sense to me about Title IX enforcement is why that also extends to criminal charges like sexual assault and stalking. Normal employers would only really be expected to take interim measures to separate employees while a criminal investigation is underway under Title VII. At least in my experience, the results of any employer’s inquiry are normally going to track the results of any criminal investigation. But in a university setting, administrations are conducting their own investigations and making determinations often where law enforcement isn’t involved at all, and sometimes reaching conclusions at odds with law enforcement. Given that most universities have their own police departments, you’d think it’d be the other way around.
I think the big problem is that there’s no direct oversight for universities in these matters. The Department of Education has regulations schools are supposed to follow, but 99% of their reviews are only conducted when somebody files a complaint, and even then, it takes years to resolve. The alternative is a lawsuit, which likewise takes years and costs tons of money in the process. Most of these kids don’t have the resources and can’t wait that long, to say nothing of the permanent damage that’s done to their reputations and careers even if they do eventually succeed.
Meanwhile, immature teenagers and twenty-somethings are acting like immature adolescents, exaggerating things in moments of emotion with little to no understanding of the lifelong consequences they’re creating for the parties involved. In extreme cases, angry exes with a mean streak are taking things way out of context, or even flatly making things up, to get back at their targets, thinking (sometimes wrongly, but not most of the time) that they’ll never get caught, and that even if they do, nothing will happen because far be it for a university to call out a liar in the wake of Baylor and #MeToo. And all the while, the administrators carrying out these investigations and tribunals have next to no training in how to evaluate evidence to meet a burden of proof, or properly conduct an elemental analysis, or fairly interpret a policy. Most of them go to workshops at a conference one week out of the year to get “training,” which often gives more instruction in how to dispose of or suppress evidence than in how to preserve or fairly assess it, compared to the years of education and experience expected of your normal police detective who investigates these things in the real world. And many of them are, frankly, ideologues, so wrapped up in #BelieveHer that they operate on an assumption altogether unique to college campuses which posits something must have happened because just because somebody somewhere complained. Their supervisors, tasked with hearing appeals of investigative determinations at some institutions, frequently make decisions based on institutional interests, fearful of controversy or PR blowback.
I think the solution to all of this is simple: add in some direct oversight. Namely, trial de novo review by state courts of school disciplinary decisions (which I believe can be done in a way that respects FERPA). Every administrative determination of every other state agency out there can be reviewed directly by a state court without resorting to a lawsuit and everything that comes with that. Educational institutions are literally the only state agencies out there that are exempt. Remove the exemption, and I’d bet good money that universities will start moving back toward fundamental fairness in these processes for fear of being directly overturned on appeal by a state district judge. I also think it would be beneficial for the Legislature to mandate, by state law, that university definitions of criminal conduct like sexual assault match the state’s criminal definitions verbatim because so many of these schools have adopted substantially overbroad policies, and that the burden of proof for those offenses be raised to clear and convincing evidence. But that’s the law school graduate in me talking, who thinks there’s a bundle of due process and discrimination issues just ripe for the taking in these things.
PS: A&M’s not going to be the male student’s Baylor. UT on the other hand....