Title IX was written just as colleges were emerging from the old “in loco parentis” model, in which they could have parent-like rules about things such as being drunk or alone in your room with a member of the opposite sex. That gave their disciplinary systems the capacity to punish these cases, because even if the victim couldn’t testify as to what had happened, the mere fact that he’d hosted her in his room was against the rules.
I’m not saying that they did prosecute these cases, or did so well: The woman was often blamed for her predicament, the man let off with a slap on the wrist on the grounds that “boys will be boys.” I’m just saying that when in loco parentis was the rule, the Title IX rules made a certain amount of sense. Now they make no sense at all. On the one hand, colleges are supposed to treat their students as full-fledged adults who cannot be told where and when to drink, or with whom they can have sex … but we also want to say that colleges have the responsibility for ensuring that nothing bad ever happens. And that in pursuit of this goal, colleges should punish the accused with the speedy and sometimes arbitrary fiat of parental authority, rather than the ponderous and sometimes unsatisfying protections of due process.
But parental authority can be arbitrary because it is not particularly harsh. Each of us undoubtedly still smarts from some ancient injustice done by a parent or teacher who took the wrong side, but comparatively few of us could say that this permanently altered their lives. Schools are being asked to apply very serious penalties with the weak evidence claims required to send one of two fighting children to their room.
We need to pick one. If college students are children, then the college should have much wider latitude to control and punish their behavior, including taking steps to prevent these assaults, such as requiring students to live in single-sex dorms where no one else is allowed to be and imposing strict consequences for being caught drinking.
This doesn’t strike me as desirable (though perhaps it would, if I had a 19-year-old kid). However effective it might be at preventing assaults, treating women and men like children is not something I want to do. But if students are adults, and the college is not supposed to be in charge of their sex lives, then the correct place to adjudicate sexual crimes is in the courts, not the campus judiciary system.