With Title IX, courts navigate gulf between student victims and their accused perpetrators


On March 11, 2020, in a courtroom in downtown Denver, David M. Ebel rattled off the episodes of harassment an East High School student said she had to endure after reporting that a classmate raped her.

Others made “rape jokes.” One called her a “dirty slut.” A friend of the perpetrator’s allegedly told her, “We took a vote and we all agreed that you’ll lose your virginity first.”

While the intent is to provide equitable treatment in education, the law itself is silent about what process is required to achieve that end. In other words, what is a Title IX investigation? Is it an academic inquiry? A criminal proceeding? Something else?

“I scratch my head,” said Stuart Bernstein, a New York attorney with Nesenoff & Miltenberg who has been practicing on Title IX cases since 2017. “There’s nothing there about being punitive in nature. It’s now become a punitive situation. Some of these schools have taken it upon themselves to think that they take over and they’re now law enforcement.”

“Typically, universities will make statements that this is intended to be an educational process,” added Tara J. Davis, who has brought Title IX cases with Bernstein in Colorado. “At the same time, when you’re handing out sanctions that can derail someone’s entire education — suspension or expulsion and impacting their chance of obtaining admission to graduate school or finding a job — that is punitive.”

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