Until recently, “Title IX” was a phrase rarely used outside the realm of college sports. But this law (actually, component of a much-larger law, the Education Amendments of 1972) was meant to eliminate gender discrimination throughout academia. Discrimination ranges far beyond a college or university’s admissions and budget offices, and the US Department of Education has long-held that sexual harassment and sexual violence are forms of discrimination.
Protecting America’s “Great Equalizer”
In 2011, the agency’s Office of Civil Rights sent a guidance document to federally-funded schools, a letter that defined sexual violence as explicitly discriminatory:
“Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.”
Title IX is historic, the letter continues, because it requires any educational institution that receives federal funding to take proactive steps to stamp out sexual violence on campus, and respond appropriately when sexual violence occurs.
The reasoning behind these requirements is as simple as it is compassionate. Sexual violence, whether it takes place on campus or in the home, creates a space of danger, a space in which survivors cannot feel safe. An attempted rape, rape or assault “effectively bars the victim’s access to an educational opportunity or benefit,” according to a 1999 US Supreme Court decision, cutting students off from their full potential through intimidation and trauma. That, by definition, constitutes discrimination.
What Is Sexual Harassment Under Title IX?
Simply put, sexual harassment has been interpreted to include any and all “unwanted conduct of a sexual nature.” That covers:
- “unwelcome sexual advances,
- requests for sexual favors, […]
- other verbal, nonverbal, or physical conduct of a sexual nature [and]
- sexual violence,” according to the Office of Civil Rights.
This is an intentionally broad definition, because it seeks to cover any behavior, whether it’s committed by another student, a school’s faculty member or employee, that would create an environment sufficiently hostile to “interfere[…] with or limit[…] a student’s ability to participate in or benefit from the school’s program.”
Numerous courts, including the US Supreme Court, have held that a single, isolated incident of sexual assault or rape is enough to create a “hostile environment.”
Does Title IX Protect Transgender Students?
Although it’s usually invoked in relation to the rights of students who identify as women or female (because 91% of sexual assault victims are female), Title IX protects everyone, regardless of their gender identification, from gender-based discrimination.
It’s for men and gender non-conforming students, too. Title IX also extends to protect faculty members and college staff. The law begins with the broadest inclusion possible: “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.”
Schools Have To Make A Plan & Stick To It
After Title IX was signed into law, schools across the country began developing their own written policies for how they would handle allegations of sexual assault. While the law only specifies certain provisions that these policies must include, it requires that each school have one, publish it openly and appoint a Title XI Coordinator to manage students’ complaints.
File a complaint, and your school has to investigate it promptly, whether or not you decide to report the assault to police. “Promptly” in this context means within a semester, but the Office for Civil Rights has suggested a much quicker turn-around of 60 days. In any event, survivors have a legal right to be informed of the time-frames in which major portions of the investigation will be conducted.
Protecting Students Before An Investigation
But even before an investigation begins, schools have to take “interim measures” to protect students, both their safety and their privacy. This is true whether or not a student’s allegations of sexual misconduct have been corroborated or substantiated in any way. It doesn’t matter: protective “interim measures” come first, and should have the goal of ensuring that students’ are able to continue their educations free from the threat of sexual discrimination.
In fact, Title IX makes it illegal for schools to suggest that survivors take time off after an assault, according to KnowYourIX.org. That “advice” would itself be discriminatory, since it tacitly discourages students from continuing with their educations. Students have the right to change classes, switch dorms or acquire alternate forms of transportation if their current arrangements are unsafe.
Counseling services, as well as additional academic support if necessary, should be made easily available to all students, whether or not they have reported an incident to the office in charge of Title IX investigations.
Many counselors, and on-campus victim advocates, are required to keep what students tell them confidential. Other employees may be required to report sexual assault disclosures, but every school must make it clear which counselors need to report and which do not. In the event that reporting is required, an employee is only allowed to tell school officials who are responsible for managing the institution’s response to sexual discrimination.
How Title IX Investigations Should Work
Title XI wants to include survivors in their school’s investigation process. Victims of assault have every right to present evidence and witnesses. If a school allows accused perpetrators to have an attorney (some don’t), survivors can hire a lawyer, too.
If this is starting to sound like a criminal prosecution, take a moment to consider the “burden of proof” required in Title IX investigations.
Preponderance Of The Evidence
In criminal cases, which may proceed simultaneous to a school’s internal investigation, prosecutors have to prove “beyond a reasonable doubt” that the accused committed a crime.
School investigations are required to use a less-stringent standard: a preponderance of the evidence. If a school turns up enough evidence to show that it’s more-likely-than-not the assault occurred (or harassment created a “hostile environment”), that finding warrants disciplinary action.
Many schools also offer survivors help in the aftermath of an investigation that confirms an assault took place. Help can include free counseling and extra academic support, like a tutor. Schools often allow survivors to retake a class without it having any effect on their academic record, too.
Does Title IX Really Work?
Yes and no.
Funding for women’s sports has certainly increased. But gender parity in STEM-related industries, which was the initial point of Title XI, hasn’t improved very much.
Sexual assault and rape, for that matter, remain commonplace throughout academia. How commonplace is difficult to know. While many sources, including the New York Times, quote numbers like “1 in 4” or “1 in 5” to describe the number of women sexually assaulted on campus, those statistics, drawn from surveys problematic on several fronts, are likely inaccurate.
Relying on reports authored by colleges and universities isn’t much better. Few incidents are reported in the first place, and institutions hoping to remain in good standing, and avoid public scrutiny, are less-than-willing to accurately portray the problem. Just as one example, when the Association of American Universities polled students at Ohio State University, 271 said they had reported a rape to school officials during the 2014 – 2015 academic year. The University, however, only reported 22 of those rapes to government authorities. There are, however, legitimate reasons for what, on the surface, looks like blatant under-reporting.
For one, the Jeanne Clery Act of 1990, which requires that colleges and universities report information about crimes on campus, only asks for reports of crimes that took place literally on campus, or in university-affiliated buildings. Major portions of any student body, though, live off-campus. When victims are assaulted off-campus, even though the crime takes place “at school,” the college has no legal obligation to report it to the government.
Confidential counselors, obviously a necessary provision for survivors, here become another sticking point. Some students may be disclosing assaults to these counselors, but since the employees are bound to keep that information private, it never becomes an official report. When asked to complete the survey, however, the student may believe that they reported the incident. Some schools, according to the Center for Public Integrity, even structure their reporting systems to keep most reports confidential, artificially lowering the number of “reported” assaults that take place.
What Happens If Schools Violate Title IX?
Over the last 30 years, Title IX has been universally interpreted to mean that no school can turn a blind eye to sexual assault. Schools that fail to investigate allegations, ones that are aware of sexual assault but ignore it, can be held liable under Title XI.
As of July 22, 2015, the US Department of Education is investigating 124 colleges and universities for alleged mishandling of sexual violence cases, with:
- Stanford University
- University of Denver
- University of Idaho
- Knox College
- Indiana University at Bloomington
- Kansas State University
- University of Kansas
- Saint Mary's College of Maryland,
- Michigan State University,
- SUNY Buffalo State College
- Wittenberg University,
- Pointe Park University,
- Temple University and
- University of Tennessee at Chattanooga
all facing multiple simultaneous federal investigations.
A school becomes legally responsible, according to the 1999 Supreme Court decision we mentioned earlier, when the way it handles an investigation “is clearly unreasonable in light of the known circumstances,” a standard that has been criticized for being overtly, and perhaps purposefully, vague.
SCOTUS Holds Survivors To Strict, Perhaps Untenable, Standard
The case, Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), was filed by a mother on behalf of her fifth-grade daughter, who had been systematically victimized by another student. Nominally, the family won, and their right to file suit was upheld. But by the same token, other survivors may have lost out.
The Court held that survivors and their families have an implied right to file a private lawsuit under Title IX, a right that isn’t explicitly defined in the law. Without that explicit definition, SCOTUS took upon itself the “latitude” to create its own definition. The definition it came up with is extremely restrictive.
To be held liable in a civil court:
- the school must have been “deliberately indifferent to sexual harassment”,
- it must have had “actual knowledge” of the harassment, and
- “the harassment [must have been] so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
Thus schools can only be held responsible for “remain[ing] idle in the face of known […] harassment,” Justice Sandra Day O’Connor wrote in the Court’s opinion.
What You Don’t Know Can’t Hurt You
“Known” is the operative word here, and it serves as an unnecessary barrier to justice according to many survivors’ rights advocates.
In fact, it’s been suggested that the Court’s ruling undermines the very requirements made clear in Title XI. Where civil lawsuits are concerned, schools can only be held accountable for what they know, but fail to act upon. That’s an incentive to drop adequate discrimination reporting systems, since the less a school knows, the less its liability.
Several states have gone further, passing laws that hold schools accountable for allowing discrimination that they should have known about. Florida, New Jersey, Rhode Island, Maine, Washington and Minnesota are notable examples, all holding schools to this stricter standard. Federal law hasn’t caught up yet.
Do Title XI Civil Lawsuits Work At All?
It’s getting better, and in recent years, survivors of assault have been able to sue schools (and win) using the principles laid out by Title XI.
Several recent court decisions have expanded the Supreme Court’s interpretation of a school’s liability. In 2007, for example, the University of Georgia (UGA) was held liable for actively recruiting a football player, who had been kicked out of other schools for harassing women, after he raped a fellow UGA student.
The university’s internal investigation into the incident, however, moved at a “glacial pace,” writes Grayson Sang Walker in the Harvard Civil Rights – Civil Liberties Law Review. The school’s office in charge of sexual discrimination only convened a panel to hear the case, after the offender had stopped attending the university, effectively eliminating the possibility of any meaningful punishment.
After suffering these rank injustices, the survivor filed a civil lawsuit against the school, and she won upon appeal. Beyond providing her with substantial financial damages, the university’s settlement instituted a new Office for Violence Prevention. But the real innovation in this case has had much broader implications. The student’s lawsuit wasn’t allowed to proceed because the school had ignored actual knowledge of the rape. It was allowed to proceed because the University of Georgia had turned a blind eye to evidence prior to the assault. The school had courted, and admitted, a student with a known history of sexual violence, and failed to mitigate the risk of further violence.