The Uncertain Future of Title IX (February)
For February 2019, the Rights Writers discuss their issues in the context of US political discourse (including public opinion), particularly in light of the two-year anniversary of Donald Trump’s presidency.
In September of 2017, Education Secretary Betsy DeVos announced she was rescinding Obama-era Title IX guidances, known colloquially as the Dear Colleagues letter. In mid-November of 2018, the Department of Education unveiled their long-awaited proposed rules regarding Title IX. Critique and support of the rules came from all sides. Some legal experts suggested that the rules took great strides in formalizing the hearing process to ensure due process was respected for both parties. Advocates for survivors pointed out the ways in which the new rules might suppress the voices of survivors, such as limiting the number of “mandatory reporters” on campus and excluding off-campus incidents from the Title IX purview. I wrote for Bustle last year about my thoughts on the new rules, informed by my experience serving as an advisor for my friend’s Title IX hearing.
Courtesy of Gage Skidmore on Flickr
To fully understand how Title IX might change, it is essential to understand how it was created. Under Title IX of the Education Amendments of 1972:
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.
In the years to follow, the nation’s court systems would make several key decisions in expanding the purview of Title IX in order to include sexual violence and sexual harassment as constituting sex discrimination. In a unanimous decision in 1992, the Supreme Court held that Title IX bars sexual harassment and allows victims to recover damages from institutions that violate the statute. Later, in the landmark Davis v Monroe County case, the Supreme Court held that a school could be subject to private lawsuits for sexual harassment of students against students as well, again provided that the school knew of the harassment.
For a full understanding of the requirements of Title IX, schools receiving federal funding turn to guidance materials released by the US Department of Education. In 2011, the Obama administration released the Dear Colleagues letter, reiterating to campus officials their legal responsibilities in upholding Title IX provisions related to sexual violence, and establishing a reduced burden of proof for university sexual misconduct hearings. The Dear Colleagues letter forced university administrators to prioritize the epidemic of sexual violence on campus, at the risk of losing federal funding.
A national movement of student activists picked up speed by 2012, bolstered by the Dear Colleagues letter as well as the newfound connections forming across various university campuses due to the Internet. Survivors and student activists began to report potential Title IX violations on their various campuses, until over a hundred universities were under investigation. Two of these activists are assault survivors Andrea Pino and Annie Clark, alumnae of the University of North Carolina Chapel Hill. Pino and Clark filed their complaint against UNC in 2013, and became national leaders as sexual assault survivors across the country filed complaints against their own universities. The pair eventually co-wrote a book together, and founded advocacy group End Rape on Campus.
The focus on university sexual violence has shifted considerably after the transition from the Obama administration to the Trump administration. Devos made headlines in 2017 when she chose to consult not only with survivors advocates but also men’s rights activists, including the National Coalition for Men. News about Title IX surfaced again when Candice Jackson, the Education Department’s civil rights chief, was forced to apologize for controversial comments she made to the New York Times. In the Times article, Jackson stated that “90 percent [of assault allegations] fall into the category of ‘we were both drunk, we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right”. After months of controversy and speculation, Devos’s proposed rules were finally released in November of 2018. Notice and comment for the new rules ended on January 31st. Currently, the rules are under review, with the Department of Education expected to release revised guidance later this year.
Although the new policy will remove pressure on university administrators to comply with Title IX, universities are unlikely to make immediate changes to their existent sexual misconduct policies. Advocates were quick to reiterate the rights of survivors; an excerpt from the Know Your IX web page on Title IX under the Trump Administration reminds students that “Title IX is still the law of the land, which means schools must still promptly and equitably investigate sexual harassment and assault”. The finalized guidelines relating to Title IX under the new administration are expected to come from the Department of Education later this year. Of course, the new Title IX guidelines are as permanent as the administrations they were penned by. There is nothing stopping a potential new Secretary of Education from rewriting the rules yet again two, or four, or ten years down the line. For now, students and college administrators alike must wait for the new rules before beginning to implement changes of any kind. For students across the country, the pursuit of justice following sexual assault hangs in the balance.