Four Title IX Lessons from the Brett Kavanaugh Hearings


On September 27, 2018, millions of Americans witnessed the testimonies of a man accused of sexual assault, Justice Brett Kavanaugh and his accuser, Dr. Christine Blasey Ford. The proceeding was similar to hearings that take place with increasing frequency at colleges and universities as a result of Title IX investigations. And comparisons to Title IX were quick to follow. Harvard students even filed Title IX complaints against Kavanaugh, who has served as faculty at the law school there from time to time.

Despite his eventual successful confirmation to the Supreme Court, Kavanaugh’s testimony offers a public tutorial in how not to handle accusations of sexual misconduct. Here are four lessons from the proceedings for anyone subject to a Title IX hearing:

1. Prepare With the Advice of Counsel

First, Kavanaugh represented himself. Don’t do that.

Kavanaugh is a brilliant jurist, trained at one of the finest law schools, and has worked for almost three decades in the law. No students have that kind of firepower or experience, even the most brilliant ones.

And even Justice Kavanaugh made a number of missteps that experienced counsel would have warned him not to make. Legal representation can be crucial to get a fair hearing, make your testimony understood, and project yourself as a credible witness – whether you are the accused or the accuser.

2. Don’t Pull an “All-Nighter”

Second, Kavanaugh was in a hurry. He admitted that he had only written his opening statement the day before and given it minimal review.

“No one has seen a draft, or it, except one of my former law clerks,” he said.

Before a Title IX hearing, it’s crucial that you take time to prepare and review any statement with an attorney. Develop a strategy to counter accusations and evidence against you. If you need it, your attorney can also advise you how to gain more time, especially where an overly zealous campus “judiciary” tries to ramrod you through the proceedings.

3. Show Respect, Even if You Believe the Process is Not Fair

Third, it is common, as Kavanaugh obviously did, to feel indignant if you are accused of sexual misconduct. For victims, it is even more of an affront to human dignity to be sexually assaulted. But it does not help to express your indignation.

Unsurprisingly, reactions divided sharply over Kavanaugh’s defense of himself. But his indignation clearly didn’t help. Many who supported him at first were alienated by what they saw as a self-pitying, angry tirade. Kavanaugh lashed out at the committee. He denounced the accusation as a “coordinated and well-funded effort to destroy my good name.”

Kavanaugh answered one senator so flippantly that he later apologized to her, blaming the “tough process” to excuse his remarks. He also wrote an op-ed in the Wall Street Journal to explain his behavior and loss of control.

Despite these efforts at damage control, Kavanaugh’s attitude generated a substantial backlash. In a letter to the New York Times, more than 2,400 law professors declared that his testimony reflected “a lack of judicial temperament.” One senator who was prepared to support Kavanaugh’s confirmation decided to oppose him because of his demeanor.

Unlike Justice Kavanaugh, an accused student cannot count on a Senate majority. A student in a misconduct proceeding must win over the mind of a hearing panel composed of faculty and career college administrators.

No hearing on a sexual assault charge is ever easy—for anyone. But it’s important to remain composed. Hostility, victim blaming, and condemnations of “the process” will undermine your credibility.

4. Be Honest and Show Your True Character

Considerable attention has been given to Kavanaugh’s juvenile high-school yearbook comments hinting at loutish behavior and heavy drinking. The comments hurt him less than his disingenuous explanations about his past.

In the Senate, Kavanaugh presented himself as the equivalent of a high school goodie-two-shoes – more like Hermione Granger in the Harry Potter novels than Bluto Blutarsky in Animal House. In light of other accounts of youthful hellraising (including firsthand accounts by fellow classmates and one police report), his statements rang out as untrue.

The yearbook comments had, at most, indirect relevance to Dr. Ford’s accusations. But, to many, Kavanaugh’s lack of candor in minor things suggested lies about larger things.

Some students accused of Title IX violations almost reflexively deny any violations of the university’s rules – say, about their presence at an underaged drinking binge. Some even conceal these facts from their lawyer.

But if caught misrepresenting small things, they increase the risk of being found responsible for more serious charges.

An attorney can counsel you in how to admit the “small stuff” with candor and respect. This can actually bolster your credibility when firmly denying things you did not do.