Tuesday, September 19, 2017
Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nevada L. Rev. 2 (forthcoming 2018)
This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement—launched with the best of intentions in response to real problems—almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, preventing evaluation of possible disparate racial impact. Further, several aspects of the university disciplinary apparatus—including broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures—increase the risk that black students will suffer disproportionate suspensions and other punishment.
This Article brings needed attention to an understudied aspect of Title IX enforcement and raises concerns about the potential effects of implicit bias. While many commentators and courts have addressed whether university disciplinary procedures mistreat men—or, instead, even now provide inadequate protection for college women—few observers have discussed possible racial implications, which may explain (and be explained by) the current lack of data. Outside the context of sex-discrimination cases, university discipline procedures for quotidian matters such as plagiarism and alcohol abuse likely exhibit similar biases.
This article argues that the U.S. Department of Education should use its authority under Title VI of the Civil Rights Act to require that colleges and universities immediately begin collecting and publishing the sort of data already reported by elementary and secondary schools, thereby allowing observers to assess the scope of disparate impact in campus discipline processes.