Title IX and Campus Sexual Assault

Policies surrounding Title IX and sexual violence in higher education are no stranger to controversy.

The U.S. Congress passed Title IX in 1972 “to prevent sex-based discrimination in schools.” All educational institutions that receive federal funding must comply with the law. Discrimination under Title IX on the basis of sex includes gender-based harassment and sexual harassment, including sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.

Title IX policies had remained relatively stable since the U.S. Department of Education’s 1997 Sexual Harassment Guidance, but the Obama Administration re-interpreted these policies through two landmark “Dear Colleague” guidance documents in 2011 and 2014. This guidance expanded the role of colleges and universities in addressing sexual violence both on and off campus.

In 2017, Title IX policies changed again when former Secretary of Education Betsy DeVos rolled back the Obama Administration’s guidance documents. And in 2020, the Trump Administration’s Education Department issued a final rule on campus sexual assault under Title IX. The rule’s most controversial addition was a requirement for post-secondary institutions to hold live disciplinary hearings and permit the cross-examination of witnesses.

In addition, the rule introduced a new evidentiary standard and gives post-secondary institutions the option to choose between the Obama-era standard and the new standard that requires survivors to meet a higher burden. Post-secondary institutions may not have a true choice because the new rule requires that institutions apply the same evidentiary standard in all sexual harassment cases, including faculty and staff cases. Many post-secondary institution policies and employment contracts already mandate the higher evidentiary standard in faculty and staff cases, which under the new rule must also apply in student cases. The rule also exempts universities from investigating many types of sexual misconduct claims.

Critics claim that the Trump Administration’s rule makes it virtually impossible for victims to come forward.

The Biden Administration recently started the process of rolling back the Trump-era rule. In March, President Joseph R. Biden issued an executive order calling for the Secretary of Education to review and consider undoing all agency actions and policies that are inconsistent with the goal of guaranteeing “an educational environment free from discrimination on the basis of sex,” including sexual harassment and sexual violence.

This week’s Saturday Seminar focuses on university adjudicatory processes for handling Title IX complaints. It reviews research on the impacts of these policies on campus sexual misconduct, and the various challenges, benefits, and criticisms of sexual misconduct dispute resolution in higher education.

• In an article published in Fordham Law Review, Brooklyn College’s Michelle Anderson contends that, although some of the Trump-era requirements “are fair, equitable, and essential to due process,” others are “prohibitively complex and burdensome” to both complainants and institutions. Many of the requirements that the regulation imposes do not advance fairness or due process, but rather add complexity and costs to institutions’ administrative burdens, Anderson argues.
• In an article in the Economics of Education Review, Texas A&M University’s Jason M. Lindo and his co-authors examine whether an increase in Title IX investigations has impacted broader university goals involving undergraduate applications and enrollment. Despite an increase in the number of campus investigations following the release of a “Dear Colleague” letter in 2011, Lindo and his coauthors note that there was no evidence that these investigations negatively impacted prospective students’ interests in a school. Even with the Education Department’s expanded investigatory role, applications and freshman enrollment increased for both male and female students. Based on these findings, Lindo and his co-authors suggest that their study “should reassure college administrators that efforts to improve processes” that address campus sexual assault do not appear to harm “broader university goals.”
• Universities allocate more resources to address sexual assaults that have already occurred than they do to prevent them from occurring in the first place, Katharine Silbaugh of the Boston University School of Law argues in an article published in the Boston University Law Review. Silbaugh asserts that Title IX policies on college campuses have been more focused on “post-assault infrastructure” instead of prevention. Through a comparison of individualized versus holistic and community-wide approaches to sexual assault prevention, Silbaugh highlights the importance of additional efforts to reduce sexual violence at a university-wide level, rather than focusing only on the well-being and safety of individual students.
• In an article published in the Journal of Applied Research in Memory and Cognition, the University of Nevada’s Deborah Davis and University of California, Irvine’s Elizabeth F. Loftus write that Title IX investigators who conduct “trauma focused” or “trauma informed” interviews and investigations may inadvertently inflect a presumption of guilt into the complaint process. Davis and Loftus argue that the Obama Administration’s focus on trauma created “incorrect and unstated assumptions” about the reliability of complainants’ memories and the reality of their claims for investigations. These assumptions, they claim, “can mislead judgments” in grievance procedures and inappropriately favor the individual who filed a Title IX complaint.
• When a university faces a sexual misconduct complaint, Title IX policies recommend that the school issue “mutual ‘no contact’ orders against the parties involved.” These orders, however, raise concerns about equal access to education and retaliation against an individual filing a complaint, according to Laura L. Dunn, in an article in the Liberty University Law Review. She argues that, rather than using these orders as a default, schools should only issue them if the facts of the allegation justify limiting the filer’s educational access. Without this justification, the orders likely violate due process protections because equal access to educational opportunities and benefits is protected under Title IX, according to Dunn. A person who files a Title IX complaint should also have procedural protections to ensure a right to be heard before any no contact order is imposed, Dunn argues.
• Title IX may address sex discrimination in higher education differently depending on the institutional characteristics of a school, concludes Cornell University’s Celene Reynolds in the journal Social Problems. Although Reynolds notes that “different types of institutions may have different norms and expectations surrounding gender equity in education,” she claims that the mobilization of Title IX protections is uneven across higher education. For example, Reynolds finds that a large proportion of Title IX complaints have been filed against selective private schools as well as schools in states with higher numbers of women serving in the legislature. Reynolds posits that some schools may be less transparent about students’ Title IX rights which could disempower the community. Title IX modifications should afford schools some autonomy to “address the idiosyncrasies of local institutional cultures,” Reynolds argues.