Title IX has received a lot of attention recently. Since the law impacts educational institutions and students across the nation, it is worth taking a closer look at what Title IX is, how it has been used in the past, and what has changed under the new administration.
The Education Amendments act of 1972 included language in Title IX that states: “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 early years after this legislation was passed, much of the discussion focused on equality between men’s and women’s athletics. More recently, this legislation has been the center of investigating gender discrimination, harassment, and sexual violence on college campuses. Both conversations focus on universities, but Title IX applies much more broadly than a university setting.
Any educational institution, K-12, public or private, that receives any amount of federal funding is obligated to follow and enforce Title IX. Funding may come in the form of governmental assistance for public schools or school lunch programs, or it may come in the form of students attending a private institution with the help of federal student aid. All educational institutions receiving federal funding have an obligation to ensure an environment that neither excludes nor denies educational opportunities on the basis of sex. Title IX protects student, staff and faculty who are victimized by other students, staff or faculty on or off school grounds, as well as visitors on school grounds who are victimized by students, staff or faculty. Victims have access to support and protections, and those found to have committed sexual harassment or assault following a school investigation may be subject to sanctions. If students, staff or faculty feel the school has mishandled the investigation, they can file a complaint with the federal Office for Civil Rights.
The broad language of the 1972 law has been through various interpretations, the most well-known of which are the 2011 Dear Colleague letter issued under the Obama administration that was repealed in September 2017 and replaced with a Q & A on interim guidance. Highlights comparing, contrasting, and noting significant changes are outlined below.
Both sets of guidance emphasize equal opportunities for both the reporting party and the responding party to present evidence and witnesses in support of their cases. Additionally, both parties have the right to receive notifications equally about the investigation at various stages throughout the process, including the final outcome of the investigation and what, if any, sanctions have been imposed.
- 2011: Recommended minimizing the burden on the victim, and emphasized the accessibility of interim measures for victims until an investigation was completed. Measures may include changes to class schedules or residence, course accommodations, and orders to stay away.
- 2017: Such measures must be equally available to both victims and perpetrators.
Standard of evidence
- 2011: Schools were required to use a preponderance of evidence standard (more likely than not that something happened) instead of a clear and convincing standard (highly likely that something happened).
- 2017: Gives discretion to the school as to which standard of evidence to use.
- 2011: Recommended that schools provide an appeals process after completion of an investigation.
- 2017: Schools have the option of whether to provide an appeals process after the investigation, and schools additionally have the discretion to decide whether the appeals process may be available to only the perpetrator, or to both the victim and the perpetrator.
- 2011: If both parties voluntarily agreed, informal resolutions like mediation could be used in cases of sexual harassment but were deemed inappropriate for cases of sexual assault.
- 2017: Allows the use of mediation in any sexual misconduct case.
Timeframe for investigations
While both 2011 and 2017 guidance recognized that there were multiple factors at play to determine a prompt response from the school,
- 2011: Suggested investigations be completed within 60 calendar days.
- 2017: No recommendations for how long an investigation should take.
- 2011: Schools provided the option for victims to remain anonymous when filing a complaint with the school.
- 2017: Removes the option for victims to file an anonymous complaint, and identifying information about the victim must be provided to the perpetrator at the outset of an investigation in order for victims to pursue protections under Title IX.
While some protections and processes remain the same from 2011 and 2017 guidance documents, some changes have drastically shifted the playing field. Victim advocacy and support services will continue to play a significant role in helping victims through the process of reporting sexual violence, though some of the recent guidance presents additional obstacles for victims.