Intended to address shortcomings of the Civil Rights Act, Title IX, which has been in place for 45 years now, requires schools that receive federal funds to not discriminate on the basis of sex. While sexual harassment and sexual violence are not mentioned, it’s understood — with backing from court rulings and U.S. Education Department directives — that the federal law’s ban requires schools to address both.
In 2011, President Barack Obama’s administration aimed to make clear that connection, via a non-binding letter that threatened a loss of Title IX funding to schools that failed to do enough to make students safe from sexual harassment, assault and rape.
At the core of an ongoing debate about the optimal reach of this Title IX guidance are the issues of basic fairness and due process for both women and men. Although emotionally charged, the debate is needed to improve upon progress and address apparent flaws in the evolving interpretation of the law.
While supporters continue to praise the Obama-era move as an overdue push needed to protect students, critics call it an over-correction that has sometimes trampled rights of the accused in what are oftentimes murky disputes. They point to instances in which Title IX guidance appears to have prompted a lower standard of proof in quasi-judicial campus hearings than that used in criminal trials.
Education Secretary Betsy DeVos, who recently announced she will rescind the guidance and develop a replacement, appears to be proceeding as an agency head should. Maintaining that a better balance of the rights of victims and the accused can be forged, she’s launching a revamp effort that will start with a notice-and-comment rule-making process.
Insisting that her move does not let institutions off the hook, DeVos has said: “We will seek public feedback and combine institutional knowledge, professional expertise and the experiences of students to replace the current approach with a workable, effective and fair system.”
But the proposed re-examination raises a red flag — a threat to reverse progress on Title IX protections on the nation’s campuses. This week, U.S. Sen. Mazie Hirono and others introduced the Survivor Outreach and Support on Campus Act (S.O.S. Campus Act). It would require higher-ed institutions that get federal funding to designate an independent advocate for campus sexual assault prevention and response.
The advocate would be tasked with providing victims with access to: emergency and follow-up medical care; counsel on reporting assaults to law enforcement; medical or evidentiary exams; crisis intervention, ongoing counseling and information on legal rights. While many campuses already have such apparatus in place, this legislation is needed to help safeguard protections for students.
At the University of Hawaii at Manoa, a stand-alone office for a Title IX coordinator — which serves as a central site to receive all complaints on the campus — was established two years ago. In addition, to better protect students from dating violence, the UH is working with nearly two dozen domestic violence service providers to support student victims and survivors of abusive relationships.
Prior to the Obama-era directive, survivors and advocates had long argued that higher-ed administrators weren’t doing enough to deal with an epidemic of these assaults. A Justice Department survey released last year showed that 1 in 5 women said they’d been sexually assaulted in college. The study defined sexual assault as including both rape and sexual battery, such as forced kissing, touching, grabbing or fondling.
Opponents, however, contend that in the past six years, administrators have become too heavy-handed.
The Title IX guidance on sexual harassment and sexual violence in schools is a work in progress. The national re-examination we’re poised to undertake needs to result in a framework that seriously addresses it, and yields a policy of refined fairness to the accuser and the accused.
