Title IX Research Paper

On June 23, 1972 Title IX of the Education Amendments of 1972 was signed into law by the President (20 U.S.C. Sections 1681-1688). The purpose was to protect people from discrimination based on sex in education programs or activities that receive Federal financial aid. Title IX states that “(n)o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or subject to discrimination under any education program or activity receiving Federal financial assistance”. For years, many college sports fans only knew that Title IX existed because it promoted women’s sports, sometimes at the expense of men’s sports programs. While I am sure this would be a fascinating paper in itself, I would like to focus on the Office of Civil Rights expansion of Title IX in Colleges and Universities during the Obama Administration as a mechanism to curtail

sexual assault instead. The specific focus will be the historical context of Title IX, the administrative interpretation of the statue, and the conflict it creates with individual due process rights and possibly the Administrative Procedures Act.
The use of “sex” in anti-discrimination legislation first appeared in Title VII of the Civil Rights Act of 1964.

This was the foundation for Title IX legislation today. When the Civil Rights Act passed, it failed to mention “sex” in any of the titles that addressed education. This was corrected during the reauthorization of the Higher Education Act of 1965 in 1972. While Title IX was born in 1972, the focus of sexual harassment was not viewed as a form of discrimination at that time. Likewise, sexual assault was also not considered a form of discrimination, but was viewed as crime of violence to maintain culture control by men. It is important to note that the interpretations of sex discrimination through Title VII by the Equal Employment Opportunity Commission (EEOC) played a key role in advancing the Title IX. The EEOC established guidelines for sexual harassment as a form of sex discrimination in 1980 based on Title VII of the Civil Rights Act. The Supreme Court affirmed that harassment constituted sex discrimination under Title VII. (Silbaugh, Boston Law

Review)
Just as Title XI came years after Title VII, so too did the court cases establishing that sex discrimination in education was illegal. First, in Doe v. Petaluma City School District (1995) when a U.S. District court held that schools could be liable if it failed to address a student’s serious harassment of another student under Title IX. In Davis v. Monroe County Board of Education (1999), the Supreme Court confirmed that peer to peer harassment was an institution liability under Title IX. These cases were the building blocks into the push for greater intervention programs at Colleges and Universities across the country. The real push for Title IX expansion happened in 2011, when the Office of Civil Rights, which is an agency in the Department of Education, issued a “Dear Colleague” letter. The letter “requires institutions to adequately address peer-to-peer sexual violence and harassment, and guiding schools by better defining their obligations under the law. The weight of that important letter is placed on how a college should respond to the perpetrator, the victim, using its disciplinary process and other program and support remedies at its disposal, once the school gains actual knowledge that an assault has occurred”. (Silbaugh, Boston Law Review) The key element here is that the legislation was passed in 1972, but the interpretation of this particular law did not occur until 2011 through an administrative agency guidance letter called the “Dear Colleague Letter”.
There are two key elements to consider when attempting how one can understand the accelerated timeline for the expanded interpretation of Title IX in Colleges and Universities across the Nation. First, sexual assault statistics for college campuses across the country were spiraling out of control. Campuses were now being referred to as “hunting grounds”, where one in five women were assaulted (one in sixteen men also reported being assaulted). More than 90% of sexual assault victims on college campuses did not report their assault. (NSVRC 2015) The Centers for Disease Control strengthened the argument when it issued a report on the impact sexual violence has on public health in April of 2014. It stated that “sexual violence is a serious and complex public health problem” and gave several recommendations on prevention strategies to address the sexual assault epidemic.
Second, institutions are always trying to play it safe in order to maintain federal funding. Therefore a risk management approach is often taken when federal compliance is involved. “Faculty at colleges and universities hold strong beliefs about risk management policies when it comes to Title IX. Some of these beliefs include that “effective sexual assault risk management practices will” reduce the likelihood of sexual assaults occurring on campuses, protect students, reduce the likelihood of lawsuits/successful lawsuits against the college or university, “help colleges maintain a reputation for safety, and for dealing appropriately with campus crime when it occurs” ( Britt 2014) It is safe to say that Universities and Colleges care about their students and if they fail at that, at least they will care about funding.
The idea, like many administrative interpretations, was a noble one. Colleges and Universities across America are facing an epidemic of sexual assaults with no end in sight. But many have questioned the OCR interpretation and the impact it has on individual’s due process rights. According to Samuel Bagenstos, “results have been disastrous: students accused of rape being tried by kangaroo courts; a prominent feminist professor subject to interrogation by lawyers for writing an op-ed criticizing new restrictions on sex between teachers and students; and even a tenured professor being fired for saying “Fuck no” in class. Another example of well-intentioned government regulation gone horribly awry”!
Professors at Harvard Law School signed an open letter in October 2014 in opposition to Harvard’s new handling of sexual misconduct procedures. They claimed that the new guidelines for the procedure set up by the Department of Education “lack the most basic elements of fairness and due process” and are overwhelmingly stacked against the accused”. (Bagenstos 2015) The new guidelines have advised schools to use a preponderance of the evidence standard instead of the beyond a reasonable doubt standard, which concerns Jeb Rubenfeld of Yale Law School. The low standard of evidence is normally used in civil suits and increases the possibility of getting the outcome wrong. Many cases involving sexual misconduct policies have been criticized due to concerns about fairness in the process, ranging from Northwestern to LSU. The American Association of University Professors recently came out against the Title IX guidance, stating the abuses it has on Academic Freedom, Free Speech and due process rights. While the idea of preventing sexual assault was great, the implementation of the new interpretation has been a train wreck at best.
Finally, the way that the Department of Education implemented its interpretation of Title IX has rubbed some legislative officials the wrong way. Most prominent of which is Senator James Lankford of Oklahoma, who has asked the basis for the 2011 Dear Colleague Letter. Lankford noted that the rules the OCR imposed were uncodified and an attempt to micromanage school discipline. Prior to the Dear Colleague Letter, most Ivy League colleges and universities had used clear and convincing evidence standard which they were ordered to now disregard. (Bader 2016) Lankford continued to give his legal analysis of sexual harassment and sexual assault case law and his belief of college and universities actual burden, instead of the OCR interpretation. While there is some merit to both sides, the most intriguing part of the letter challenges OCR for violating the Administrative Procedures Act. (News 2016) It is debatable whether the Dear Colleague Letter was failed to meet the notice and comment requirements or if the letter qualifies as an interpretation of a regulation that already exist. No one will know unless it is challenged, but it should continue to be monitored.
In conclusion, Title IX of the Education Amendments of 1972 may be one of the most contentious administrative law issues on University and College campuses today. The desire to protect our child and maintain our constitutional rights are butting heads with no signs of slowing. It will be an important lesson for other agencies when determining how to best implement the law and enforce them. While this has been a train wreck of an implementation, it does show how incredibly complex the translation of law can be from paper to practice.