Several law review articles related to Title IX have been published in recent weeks. Here is a summary.
In the recent issue of the Williamette Sports Law Journal, author Zachary Anderson examines the University of Nebraska-Omaha’s recent decision to drop its football and wrestling program. His case study examines the university’s financial motivations as well as its compliance problems, and concludes that the university’s decision was in the best interest of the institution and its student-athletes overall.
Zachary W. Anderson, Title IX Compliance: In the Name of Financial Stability or Gender Equality?, 10 Willamette Sports L.J. 33 (2012).
A student note in the Catholic University Law Review argues that Title IX plaintiffs alleging violations stemming from athletics ought to satisfy the same requirement of “actual notice” that applies to Title IX sexual harassment claims. The author acknowledges that several courts have rejected this idea because harassment, unlike athletics discrimination, involves conduct about which the university might not actually be aware. He argues nevertheless that universities may be unaware of discrimination in athletic departments and that a notice requirement should be imposed. Personally, I find this unconvincing, as I have argued elsewhere on this blog that it simply “make[s no] sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions.”
Zachary Swartz, If It’s Broken, Let Them Fix It: Why the Gebser Pre-Litigation Notice Requirement Should Apply to Title IX Athletics Lawsuits, 61 Cath. U. L. Rev. 1207 (2012).
Finally, another student note, this one in the Duke Law Journal, criticizes certain aspects of the 2011 Dear Colleague Letter from the Office for Civil Rights, which clarified universities’ obligations to respond to sexual violence on campus. On the one hand, the author concludes that the DCL’s requirement universities have a preponderance of evidence against the accused before taking disciplinary action is consistent with procedural due process requirements in the Constitution. But, he argues, other aspects of the DCL, such as its recommendation against allowing the accused to cross-examine the victim, conflict with the constitutional interpretations of some lower courts.
Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L.J. 487 (2012).