A THIRD WAY: TITLE IX’S POTENTIAL BEYOND CRIMINAL AND CIVIL LAW PARADIGMS

A single occurrence of sexual violence on a college campus can lead to any of three major legal outcomes. The first is a traditional criminal prosecution of the alleged perpetrator. The second is a civil lawsuit against the school under Title IX, in which the victim alleges that the school’s disciplinary procedures failed to deliver an adequate response according to the body of law developed by courts interpreting Title IX. The third, which has become increasingly important and visible after a decade of student activism and initiatives by the Department of Education, is an administrative enforcement action by the Department’s Office for Civil Rights (OCR) in which the agency investigates the school for noncompliance with Title IX under threat of rescission of federal funding. The latter arena of administrative law is a highly dynamic one, as the OCR under Presidents Obama, Trump, and now Biden has engaged in the process of issuing the regulatory guidance that structures the agency’s enforcement of Title IX as applied to the (mis)handling of sexual violence in educational settings. The surge of activity surrounding OCR’s enforcement of Title IX has revealed the vast potential of administrative regulation to create a meaningful alternative to traditional criminal or civil litigation remedies—a third way toward justice for victims of sexual violence on college campuses. This essay explores several salient ways in which administrative enforcement of Title IX differs from criminal and civil responses to sexual violence in educational settings. The objective of this essay in surveying existing applications of Title IX in the administrative arena is descriptive. Still, there is a normative element to demonstrating Title IX’s capacity to transcend the limitations of criminal and civil law paradigms. Beyond the carceral logic embedded in the criminal justice system and the procedural prescriptions built into the courts’ interpretation of Title IX lies “the expansive possibilities for administrative enforcement that are in Title IX’s design.