The University Network

The Lead-Up To The Proposed Rules On Title IX

Title IX of the Education Amendments of 1972 seeks to prevent sex discrimination on any campuses that receive federal financial funding. The provision is simple:

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.

To that end, Title IX  has addressed inequalities in admissions and opened the door for countless women to pursue a college degree. In the late ‘70s, Title IX also opened up opportunities for women in athletics and laid the groundwork for success in women’s sports, including the national women’s soccer team, which brought home the 2019 World Cup trophy — the team’s fourth.

But when it comes to sexual violence on campus, Title IX has had a rocky path.

It wasn’t until circa 1980 that an argument was first successfully made that sexual harassment constituted sex discrimination under Title IX. In that case — Alexander v. Yale — the plaintiffs sought the adoption of grievance procedures for sexual harassment, not monetary damages. As a result, most universities went on to adopt grievance procedures.

And in 1997, the Clinton-era U.S. Department of Education’s Office for Civil Rights (OCR), which investigates and administratively enforces Title IX as it pertains to sexual harassment, released guidance solidifying that sexual harassment of students by their peers, school employees, or third parties is a form of sex discrimination and, therefore, is prohibited under Title IX.

Namely, the 1997 guidance pressured schools to stop sexual harassment before it became a serious, pervasive issue. It made schools liable for sexual harassment by teachers and staff, and established a “negligence standard” for student-on-student sexual harassment. 

However, in two later rulings — one in 1998 and the other in 1999 — the U.S. Supreme Court held that schools should only have to pay damages for “harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Additionally, the Court found that schools can only be held liable if they had “actual knowledge” that sexual harassment occurred and acted with “deliberate indifference.” 

This decision led to protests by survivor advocacy and women’s groups. 

And through a legislative loophole, the Clinton administration, too, dismissed the court’s interpretation of schools’ responsibilities with the OCR announcing a revised guidance in 2001 that closely reflected its 1997 guidance. The OCR argued that the Supreme Court’s holding applies only to lawsuits for monetary damages and does not apply to Title IX’s administrative regulations. 

Despite the 2001 guidance, however, sexual violence on college campuses persisted. 

The Obama-era fix

So, with a rise in the number of survivor advocacy groups and some strong pressure from his base, the Obama administration took a crack at fixing the problem in 2011. The Obama-era OCR cautioned schools that if they didn’t expand their efforts in preventing sexual violence on campus, they would be at risk for losing federal funding. 

By way of a “Dear Colleague” letter, the OCR explained that Title IX requirements on sexual harassment cover sexual violence and provided guidance that outlined specifically what schools should do to address sexual violence. 

In brief, schools were encouraged to quickly hire and train Title IX coordinators who would be made responsible with adjudicating Title IX cases. Additionally, the coordinators were required to use the relatively lenient “preponderance of evidence” — meaning “more likely than not” — standard when determining whether someone is guilty of sexual harassment or violence. 

The 2011 Dear Colleague letter was supplemented by a Q&A in April 2014, which was intended to further clarify the legal requirements and guidance articulated in the Dear Colleague letter and the 2001 Guidance.

The OCR also released a list of colleges and universities that were being investigated for failing to follow the rules outlined by Title IX. 

And for the sake of their reputation, the institutions did not want to be on that list. So, they hurried to comply with the OCR guidance. 

Critiques of the Obama-era guidance

However, in some people’s opinion, the Obama-era guidance swung the pendulum too far in favor of the complainant and did not consider the constitutional rights of the accused.

“I think that the 2011 Dear Colleague letter was, in concept, a great idea,” said Andrew Miltenberg, a New York-based attorney and managing partner of Nesenoff & Miltenberg LLP, who specializes in the field of campus assault due process. “But I also think that the specific delineations in it were not particularly well thought out, and I think that schools completely botched carrying it out.” 

Up until 2011, most schools were only prepared to deal with disciplinary matters regarding honor code and conduct code violations, Miltenberg explained. They didn’t have the staff in place to adjudicate complicated sexual violence cases. 

So, naturally, schools acted quickly to hire Title IX coordinators. 

“Where do they look?,” asked Miltenberg. “Well, a natural place to look is victims’ rights advocates, domestic violence counselors, rape counselors, social workers — all people who are well-intentioned, but nonetheless have a very particular view of these cases.”

Miltenberg argues that Title IX coordinators with such a background are often trained in a “trauma-informed approach,” which essentially means that they assume the complainant is telling the truth. And if there are inconsistencies in their statements, it is attributable to post-traumatic stress, which causes repressed memories. 

If you are the accused, however, “you’re starting the process with the investigators already believing everything the complainant says, and giving him or her a free pass on changing the story,” Miltenberg said. “And if you make one slip-up in your recollection, regardless of how immaterial it is, that undermines all of your credibility. So there really is an incredibly uphill battle for the accused to fight the minute a complainant starts talking.”

Critics have also argued that the “preponderance of evidence” standard Title IX coordinators were required to use also gave an advantage to the complainant. Many suggest that the evidence standard used in Title IX cases should, instead, mimic the higher “clear and convincing” standard used in civil court. 

Additionally, the Obama-era guidance discouraged schools “from allowing the parties personally to question or cross-examine each other during the hearing” on the basis that it would be “traumatic or intimidating” to an alleged victim of sexual violence. 

However, others argue that cross-examination is a pivotal tactic to getting to the truth. KC Johnson, a professor at Brooklyn College and an expert on Title IX lawsuits, reminds us all that the Supreme Court deems cross-examination the “greatest legal engine ever invented for the discovery of truth.”

Amidst all of this, it’s important to note that Obama-era guidance was not universally shunned. Many believe that Obama-era guidance was pushing schools in the right direction and that change takes time. 

Laura Dunn, an attorney and advocate for survivors and founder of L.K. Dunn Law Firm, PLLC and the advocacy group SurvJustice, suggests as time progressed under Obama-era guidance, there was an increase in the number of law school graduates who joined as Title IX coordinators on college campuses. 

Emerging lawsuits

The Obama-era guidance seemingly made more students comfortable with reporting cases of sexual violence. 

But it also resulted in an increase in the number of lawsuits filed by students accused of sexual violence on the basis of lack of due process. There are currently almost 500 lawsuits filed by accused students in state or federal courts against their schools, according to KC Johnson

Many cases involve allegations of college and university Title IX coordinators and investigators failing to consider exculpatory evidence — evidence that might exonerate a defendant, which a prosecutor is required to disclose in a criminal case — or even hiding such evidence from the accused. 

In a lawsuit against Purdue University, for example, an appellate court found that the hearing conducted by the university was little more than a sham. If the dean who oversaw the investigation and the advisory committee had not spoken to the complainant in person, or received a written statement from her, let alone a sworn statement, it was “unclear” to the court how they could determine her credibility. The investigators’ conduct was found to be even more “puzzling” because they refused to speak to the roommate of the accused who “maintained that he was present at the time of the alleged assault and that [the complainant’s] rendition of events was false.”

In another recent lawsuit, a federal court in Mississippi declined to dismiss the lawsuit filed by a student against the University of Mississippi alleging that the Title IX investigator “refused to consider” exculpatory evidence of his complainant telling law enforcement that their sex was consensual. 

And in July 2019, a former Carleton College student filed a lawsuit alleging that Carleton failed to disclose key evidence, including that the complainant had asked campus security officers “if she would face discipline for underage drinking” and was assured by Carleton’s Title IX Coordinator that “she would not face discipline if it was part of a sexual assault claim.” 

According to the New Yorker, nearly half of the lawsuits brought by students accused of sexual violence against their school have resulted in favorable court rulings or settlements with the schools. (The New Yorker article referenced more than 400 cases that were filed at the time the article was published.)

Recognizing the need for change

While individuals may disagree on the details of how to best combat sexual violence on college campuses, almost everyone agrees that the accused has the right to be heard. This right — the right to due process — is enshrined in the Constitution. 

In a conversation with The Atlantic, U.S. Supreme Court Justice Ruth Bader Ginsburg confirmed the accused students’ right to due process in Title IX cases. 

Ginsburg believes that every time a woman is put in a place where she feels inferior or subordinate, she should not be afraid to complain. However, she also agreed that many of the current criticisms are valid. 

“The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard,” Ginsburg said. “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

The lack of due process for the accused is the primary criticism of Obama-era Title IX regulations, but it isn’t the only one. 

According to Kimberly Lau, a New York-based lawyer concentrating on Title IX actions and college disciplinary matters, neither the complainants nor the accused students are happy about how schools are currently dealing with Title IX complaints. 

“There is a lack of uniformity from one school to the next on how Title IX is addressed,” Lau said. “Students complain about the lack of transparency of information; not knowing their rights, not feeling like they have the right to objective assistance from an outside adviser or lawyer, significant delays in the process, not understanding the details of the allegations prior to being interviewed, not enough time to review the evidence gathered prior to a hearing, not having the opportunity to cross-examine each other, etc.”

Chance for common ground

Amidst all of the discord, it’s easy to assume this is a two-sided issue. But there is more consensus than one may assume. Largely, politicians, lawyers and advocates share a common goal — protecting the rights of both the complainant and the accused. However, disagreements lie in the details. 

And in June 2017, there was a glimpse of hope for finding common ground. 

A group of lawyers consisting of current and former defense attorneys, school administrators, victim advocacy representatives, prosecutors, government officials, and others formed the American Bar Association Criminal Justice Section Task Force on College Due Process Rights and Victim Protections.

Their mutual goal was to provide recommendations that public colleges and universities could follow to help resolve allegations of campus sexual violence.

With some generous compromises from everyone involved, the Task Force was able to draft specific, in-depth recommendations — including the requirement of “a prompt, fair, and impartial investigation” — and summarize their rationale behind each one. 

Yet despite the ABA report and an overarching desire to achieve fair adjudications, Title IX debates with respect to sexual violence persist. 

The current Title IX proposal

And in September 2017, soon after U.S. Secretary of Education Betsy DeVos took office, the Department of Education withdrew the Dear Colleague letter and the 2014 Q&A on the grounds that they ignored notice and comment requirements, created a system that lacked basic elements of due process, and failed to ensure fundamental fairness. 

In its stead, in an effort to protect all students from discrimination, the Department of Education adopted an interim Q&A as a guide on how to investigate and adjudicate allegations of campus sexual violence under federal law.

And in November 2018, the Department of Education introduced a revised Title IX proposal — one that would allow colleges and universities to use a stricter standard of evidence when determining if the accused is guilty, tighten the definition of sexual harassment, and restrict the types of incidents that can be investigated. 

It would also require schools to use live cross-examination at a Title IX hearing and to allow cross-examination of both parties and witnesses by the other party’s advisers who may be attorneys. This is intended to limit the potential harm from personal confrontation between the complainant and the accused while safeguarding the accused student’s due process rights.  

But this proposal, too, has been met with combatance and confusion. Within 60 days of its release, the Department of Education received more than 124,000 comments. Critics of the proposal largely fear that it would make it harder for students to report sexual harassment. 

Among the most debated of the new changes is that the OCR would allow schools to use the stricter “clear and convincing” evidence standard.

To some, this is a good idea because it would encourage schools to apply standards commonly used in civil court to give the accused a fair trial. 

But to others, including members of the Center for American Progress, which self-identifies as an independent nonpartisan policy institute, allowing schools to use the “clear and convincing” evidence standard can be chilling. 

“The clear and convincing standard stacks the process against the survivor and sets an unreasonably high bar for evidence that is difficult to achieve in many sexual assault cases,” the institute wrote in a statement. “By allowing schools to adopt this standard, the Department of Education is signaling to survivors that they will need even more proof of the assault, discouraging many survivors from reporting.”

Additionally, Dunn notes that if students are dissuaded from reporting cases of sexual violence to Title IX coordinators, that may also have repercussions for schools. She believes that less egregious cases can serve as “early warning signs” and help schools avoid larger scandals in the future. 

“There are several situations we can think of where there have been massive scandals — Michigan State, Penn State,” Dunn said. “If those warning signs before they became a big scandal were taken seriously, then you wouldn’t have the massive harm, and you wouldn’t have these massive lawsuits of several survivors.”

Conclusion

The proposal has not yet gone into effect. However, multiple experts have estimated that it will come to fruition within the next couple of months. If history is any indication of what’s to happen next, it’s likely that Title IX will continue to evolve. The hope, though, is to get to a point where victims are fully protected without abridging the constitutional rights of the accused or creating unnecessary litigation against universities.