Jauregui Law Office Analysis of Sexual Misconduct and Title IX Discipline in the Campus Binge-Drinking Context
Binge Drinking as an Enhancer of Student Misconduct and Title IX Risk for United States College Students.
As you must realize, your son arrived to college primed for alcohol-related risk, which, unfortunately, as you may not realize, means that he may be accused of alcohol-related sexual assault in violation of Title IX and of his school’s code of conduct.[1] Even worse, the college reality is that everyone drinks, not just the men, such that in fact your son may become a real victim of alcohol-related sexual assault who is cast as a rapist by a male-biased Title IX investigation. Any of these scenarios will ruin your son’s good name. All of this risk increases due to the common factor discussed here--alcohol.[2]
Thus, we briefly explore the relationship between alcohol-drinking, mostly binge-drinking in college, and sexual misconduct violations that trigger Title IX investigations.
1. Alcohol and the Sexual Misconduct Laws:
Title IX merely speaks of a school with no sexual harassment for all and does not consider that alcohol is most often the trigger for unwanted, even if unintended, sexual misconduct.[3]
• Practically every school, however, has rules on student drinking;
• In addition, any minor is subject to underage drinking state laws.[4]
It is in the pattern of the school’s enforcement as well as in it’s active or absent prophylactic attention to what happens after students have sex while binge-drinking, that the school’s anti-male bias may come across. For example:
• The Title IX investigators may not believe that “she” was drunk of her own accord and assume “he” was drunk because he is a man.
• The school may have a history of ignoring, and failing to correct, instances of binge-drinking at known male-centric events, like sports events.[5]
• The school may have a “boys will be boys” attitude to on-campus consumption of alcohol which inherently casts your son as a drunken rapist-to-be because of the school’s culture has a systemic male bias.
• The school could have a record where only men are the subject of complaints of and discipline for alcohol-related incidents including assault, sexual misconduct, and general disturbance of the peace. Exonerating women from these complaints inherently casts them as damsels in distress. This is circumstantial evidence of male bias.
2. Alcohol and the College Experience:
Drinking on campus is not easy to manage, and may be impossible to control because of its complexity. Campus alcohol-drinking, and particularly binge-drinking, takes place when many factors intersect. And the college environment presents your son, his peers, every respondent, as well as every complainant, with the perfect intersection of these factors. Even so, it is still male-bias if the school staff assumes that only men binge drink. Consider the gender neutral social-scientific data available to us.
Statistically speaking, your son, (and his peers) in college:
• Profits more from having one drink per weekday than from binge drinking at the end of the week (if he’s going to drink at all). [6]
• Would benefit from acquiring the same opinion of weekend binge drinking that he probably already has of cigarette smoking: personal disgust and public disapproval for those who do it.[7]
Unfortunately, statistically speaking, your son, his hypothetical complainant, and their peers, will likely binge-drink in college because:
• Age matters. “…35% of college students, and 35% of young adults who were surveyed in 2013 [report binge drinking]. Such occasional heavy or “binge”drinking peaks in the early 20s and recedes with age after that, reflected by the 31% rate found among 29- to 30-year-olds.[8]
• Enrolling in college, as opposed to joining a trade or the military, also fosters drinking: “College-bound 12th graders are consistently less likely than their non-college bound counterparts to report occasions of heavy drinking, yet the higher rates of such drinking among college students compared to non-college peers indicate that these 12th graders catch up to and pass their peers in binge drinking after high school graduation.”[9]
In addition, statistically speaking, the presence or absence of factors, some socio-ecological and others dependent on the student’s location along the personal, family, and community risk factor spectra, predict if your son, his complainant, or their peers, will also binge drink on campus, and in so doing increase their risk of sexual misconduct.[10]
• In terms socio-ecological, niche marketing of alcohol to college students, at the college, explains why college-age binge drinkers find people like themselves creating a community which encourages the conduct and increases its worst tendencies—hostility, aggression and heavy drinking.[11]
• In personal terms, alcohol intake increases every student’s libido. “Positive sexual expectancies were more strongly endorsed while drinking in the college social environment for both males and females, while males also reported heightened liquid courage expectancies.”[12]
• In terms of the family of any participant of a sexual misconduct process, the number of current alcohol users in the family, the level of parent-student closeness, the kind of parental supervision, and the intensity of the family’s conflict(s) predict binge drinking.[13] Family closeness and social regulation buffer the effect of family alcohol modeling on student alcohol misuse, while family stress magnifies the effect.[14] Thus the student’s family context and its many tensions remains the most important area to predict binge drinking and the associated increase in sexual misconduct. Importantly, the school knows this, and hopefully documents those histories, in a gender neutral way, when determining if what “she said” made more sense than what “he said” about who got whom drunk.
• In terms of community risk, in the actual campus, what matters is how others there drink which matches with the consistently reported association between adolescent and friends’ alcohol use to other peer contexts. “An implication is that while immediate friendships are central to adolescent alcohol use, the larger and more inclusive school-wide and neighborhood peer environments also clearly matter.”[15]
3. What does Binge Drinking Teach about Title IX Discrimination?
The binge drinking of men and women as college students is a gender-neutral fact that causes an overwhelming amount of the reported sexual assault claims in US colleges and universities. Yet the overwhelming gender of the respondents is male. Those claims ruin lives and require specialized Title IX sexual misconduct legal assistance. But the best treatment for complex problems like binge drinking is prevention. Systemically, that ball is in the school’s court. But individually, all that you and your son can do, knowing these factors, is assess the risk and develop or enjoy the good in a close family’s life.
Applying those risk factors to known information about the complainant during the investigation and adjudication of a sexual misconduct complaint legitimately yields circumstantial evidence of anti-male bias. That is to say, binge drinking causes a rough school environment ripe for mutual, cross, and sometimes false claims of sexual misconduct that may or may not violate Title IX, and if the school ignores the socio-ecological profile of each complainant and each respondent, it favors the woman, particularly when credibility is dispositive. Overall, how each sexual misconduct party ranks when assessing all the binge-drinking risk factors at play matters to establish a simple presumption that no one forced the complainant. The school’s failure to carry out that task can also provide ample proof that your son’s school violated his Title IX rights.
ENDNOTES:
[1] Just for one example of alcohol and Title IX: “UCLA fraternities were banned indefinitely from hosting in-house events with alcohol in January 2018, over six months before the NIC announcement, following a vote by the IFC’s executive board and fraternity presidents. The ban was enacted after the 2016-2017 president of the Theta Delta Chi fraternity was arrested and charged with assault and attempt to commit rape and oral copulation. However, the IFC lifted the alcohol ban the following month after voting to pass a new risk-management policy, which required fraternities to have third-party security guards and bartenders at all registered events.”
Inga Hwang, “Lawsuits, alcohol bans and violations: Title IX and sexual assault issues recap” The Daily Bruin, June 9, 2019 available at:
[2] “In 2001, 599,000 (10.5%) full-time 4-year college students were injured because of drinking, 696,000 (12%) were hit or assaulted by another drinking college student, and 97,000 (2%) were victims of alcohol-related sexual assault or date rape. [Emphasis added]. A 2005 follow-up of students in schools with the highest proportions of heavy drinkers found no significant changes in the proportions experiencing these events.”
Ralph W Hingson, Wenxing Zha, Elissa R Weitzman Magnitude of and Trends in Alcohol-Related Mortality and Morbidity Among U.S. College Students Ages 18-24, 1998-2005 (J. Stud. Alcohol Drugs, Supplement No. 16: 12-20, 2009). Abstract available at: https://www.jsad.com/doi/pdf/10.15288/jsads.2009.s16.12
[3] Title IX simply says: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX of the Education Amendments Act of 1972 (2018). See, e.g., https://en.wikipedia.org/wiki/Title_IX
[4] For example, in Pennsylvania, anyone under 21 is guilty of underage drinking, even if they did not mean to drink or know they were drinking alcohol because the act falls into the “summary offense” category. That the statute only identifies “he” as guilty does not exempt “she”; rather it shows the male-bias implicit in the construction of underage alcohol consumption law:
§ 6308. Purchase, consumption, possession or transportation of liquor or malt or brewed beverages.
(a) Offense defined.--A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in section 6310.6 (relating to definitions). For the purposes of this section, it shall not be a defense that the liquor or malt or brewed beverage was consumed in a jurisdiction other than the jurisdiction where the citation for underage drinking was issued.
[5] Joel Mathis, Just How Buzzed Are Pa. College Students?, Philadelphia Magazine, January 27, 2016,Available at: https://www.phillymag.com/news/2016/01/27/report-drug-alcohol-arrests/
[6] “Peer norms against occasions of heavy drinking on weekends (five or more drinks once or twice each weekend) among the three young adult age groups have tended to be weakest for the 19- to 22-year-old age group, where such behavior is most common, and strongest for the 27- to 30-year-old group. Since 2002, disapproval of such drinking has also been low for the 23- to 26- year-old group relative to the other two age bands… Despite some increases in peer disapproval over the years, this rather extreme form of drinking has the least restrictive perceived peer norms of all of the substance-using behaviors measured in MTF; yet, the majority still report peer disapproval.”
Johnston, L. D., et al, Monitoring the Future national survey results on drug use, 1975–2013: Volume 2, College students and adults ages 19–55. Ann Arbor: Institute for Social Research, the University of Michigan (2014). Available at: http://www.monitoringthefuture.org/pubs/monographs/mtf-vol2_2013.pdf
[7] Peer disapproval of cigarette smoking is high in all four age bands: In 2013, 84% of 12th graders said their friends would disapprove of pack-a-day smoking, as did 86% to 90% of 19- to 30-year-olds. (id at 34)
[8] Id at 30.
[9] Id at 31.
[10] “Research shows that multiple factors influence college drinking, from an individual’s genetic susceptibility to the positive and negative effects of alcohol, alcohol use during high school, campus norms related to drinking, expectations regarding the benefits and detrimental effects of drinking, penalties for underage drinking, parental attitudes about drinking while at college, whether one is member of a Greek organization or involved in athletics, and conditions within the larger community that determine how accessible and affordable alcohol is.”
White, A., & Hingson, R. (2013). The burden of alcohol use: Excessive alcohol consumption and related consequences among college students. Alcohol Research: Current Reviews, 35(2), 201-218. Abstract available at: https://psycnet.apa.org/record/2014-07285-012
[11] “In the absence of other bases upon which to make choices of places to drink, the tendency towards homophily among drinkers will encourage stratification of customers across different outlets. This is the same process that has been identified in macro sociology as supporting racial segregation, but can also be recognized in the small group dynamics of friendship networks and concordant drinking among married couples. The implications of this observation become more pointed when it is observed that other, less prosocial, characteristics of drinkers also tend to assort across drinking places (e.g. hostility, aggression and heavy drinking).”
Paul J. Gruenewald, The spatial ecology of alcohol problems: niche theory and assortative drinking, Society for the Study of Addiction, Volume102, Issue6, June 2007. Available at: https://onlinelibrary.wiley.com/doi/full/10.1111/j.1360-0443.2007.01856.x
[12] “This would be better drunk”: Alcohol expectancies become more positive while drinking in the college social environment.
Joseph W. LaBrie, Sean Grant, Justin F. Hummer, Addictive Behaviors, Volume 36, Issue 8, August 2011, Pages 890-893.
[13] Susan T. Ennett et al., The Social Ecology of Adolescent Alcohol Misuse, Child Dev. 2008 Nov-Dec; 79(6): 1777–1791. available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2597371/
[14] id.
[15] “ That is, family social regulation buffered effects on adolescent alcohol misuse of alcohol modeling by the adolescent’s friends and schoolmates, whereas peer social regulation amplified the modeling effects of alcohol misuse by schoolmates [emphasis added] (p <.10). The family findings are consistent with studies suggesting that a positive family environment, as indicated by both closeness and supervision, can mitigate negative peer effects (Brook et al., 1986; Brook et al., 1990; Marshal & Chassin, 2000). In addition, and not typically the focus of prior studies, our findings show that the family can amplify negative peer modeling both through family stress (conflict) and family alcohol use…” id.