Adam C. Powell, Ph.D.Title IX in the 2010s
Universities have long enacted their own forms of justice under the auspices of the outside government. In the 16th Century, the University of Coimbra constructed an academic prison on its campus for the incarceration of students and faculty within its jurisdiction, in accordance with Portuguese law.
While modern American universities do not operate prisons on their campuses, they nonetheless maintain internal grievance systems that operate somewhat differently from government-run courts. In addition to handling matters such as academic integrity violations, these systems are sometimes entrusted with addressing issues which would also be considered crimes outside the walls of the university, such as incidents of sexual assault.
There are a number of questions that every grievance system must address. Grievance systems must have a means of determining what is within their jurisdiction, and what is not, and must be addressed by a different system. For instance, some crimes are prosecuted locally, while others are prosecuted federally. Furthermore, they must determine their burden of proof. For example, in the United States, different standards of burden of proof are typically held for civil versus criminal cases. Civil cases must meet the “preponderance of the evidence” standard, while criminal cases must meet the “beyond a reasonable doubt” standard. Plaintiffs must make a stronger case to satisfy the “beyond a reasonable doubt” standard than to satisfy the “preponderance of the evidence” standard. The configuration of a grievance system both determines what cases it will address and how it will make decisions.
One category of grievances that schools must address is grievances related to discrimination and other acts interfering with students’ education. Title IX, the Patsy T. Mink Equal Opportunity in Education Act, declares that, “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.” Title IX was originally passed in 1972, to fill gaps in the Civil Rights Act of 1964 pertaining to sex discrimination. While it initially was operationalized to protect female rights in the context of employment and participation in sports, the law’s interpretations were extended during the 1990s, through a series of Supreme Court decisions which stated that part of universities’ Title IX obligations included protecting students from sexual harassment and sexual violence. In doing so, addressing such matters became within scope of the judiciary processes of American universities.
Modifications to the scope of Title IX have often been made through “Dear Colleague” letters written by the U.S. Department of Education, which do not constitute changes in law, but do provide information on how an existing law will be interpreted and enforced going forward. Since these modifications in interpretation are made by appointed officials and do not constitute changes in the law, they can be quickly made to adjust policies so that they are in tune with the views of a presidential administration. As a result of the reliance on non-legislated letters to modify Title IX, it has been possible for both the Obama and Trump administrations to quickly enact changes to its implementation.
The Obama Administration made a series of changes to Title IX that increased its scope and weighed school grievance procedures more heavily towards plaintiffs. In 2010, a “Dear Colleague” letter outlined how Title IX would be interpreted as applying to multiple forms of harassment and bullying, including sexual harassment, gender-based harassment, and disability-based harassment. On a related note, a 2011 “Dear Colleague” letter was issued, specifying that when schools address matters involving sexual harassment, including sexual violence, they must use a “preponderance of the evidence” standard to evaluate complaints.
The note further mentioned that at the time of writing, some schools were using a “clear and convincing” standard to evaluate cases, requiring there to be reasonable certainty that sexual harassment or violence occurred for the school to rule against the defendant. Finally, in 2016, a “Dear Colleague” letter was released, specifying that Title IX’s protections covered gender identity, and that transgender students must be allowed to use facilities and participate in activities consistent with their gender identities.
Under the Trump Administration, Title IX has continued to evolve. While some Obama-era “Dear Colleague” letters have remained in effect, such as the guidance that charter schools have the same Federal civil rights obligations as non-charter schools, and the guidance for handling Ebola and measles outbreaks, a number of retractions have been made. Namely, the aforementioned 2011 “Dear Colleague” letter requiring a “preponderance of the evidence” burden of proof in grievance procedures, and the 2016 “Dear Colleague” letter covering gender identity, were retracted by the Department of Education. As a result of these changes, the Department of Education’s interpretation of Title IX reverted in these areas to what it was before the applicable “Dear Colleague” letters were issued.
Taking a more formal approach than the use of “Dear Colleague” letters, on November 29th, 2018, the Office of Civil Rights within the Department of Education entered a notice of proposed rulemaking into the Federal Register, with a public comment period extending until January 28th, 2019. The proposed rules would “clarify and modify Title IX regulatory requirements pertaining to the availability of remedies for violations, the effect of Constitutional protections, the designation of a coordinator to address sex discrimination issues, the dissemination of a nondiscrimination policy, the adoption of grievance procedures, and the process to claim a religious exemption,” in addition to specifying how covered schools must respond to sexual harassment. The rules proposal states the following intended aims:
Define the conduct constituting sexual harassment for Title IX purposes;
Specify the conditions that activate a recipient’s obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of a recipient’s response;
Specify situations that require a recipient to initiate its grievance procedures;
Establish procedural safeguards that must be incorporated into a recipient’s grievance procedures to ensure a fair and reliable factual determination when a recipient investigates and adjudicates a sexual harassment complaint.
Clarify that in responding to any claim of sex discrimination under Title IX, recipients are not required to deprive an individual of rights that would be otherwise guaranteed under the U.S. Constitution;
Prohibit the Department’s Office for Civil Rights from requiring a recipient to pay money damages as a remedy for a violation of any Title IX regulation; and
Eliminate the requirement that religious institutions submit a written statement to qualify for the Title IX religious exemption.
The proposed rules specify that the definition of sexual harassment used for the purposes of Title IX shall be uniform and based upon the Supreme Court’s decisions in the Gebser and Davis cases. Furthermore, the rules establish safe harbors for schools to ensure that they are responding to formal complaints of sexual harassment in a Title IX-compliant fashion.
The rules additionally work to define the jurisdiction of Title IX to incidents reported via a “formal complaint as to allegations of conduct with its [a school’s] educational program or activity.” The rules state, “nothing in the proposed regulations would prevent a recipient from initiating a student conduct proceeding or offering supportive measures to students who report sexual harassment that occurs outside the recipient’s education program or activity,” while not requiring schools to initiating grievance procedures for incidents outside of their jurisdiction. Overall, the regulations proposed in 2018 narrow the obligations of schools, are protective of defendants, and increase the reporting requirements and burden of proof placed on plaintiffs.
Means of academic discipline have been evolving for many years. While American universities do not operate independent prisons, as had once been done at the University of Coimbra, they do operate their own grievance systems, which are not uniform from campus to campus, but are nonetheless overseen by the Federal government. Protecting the civil rights of students on campus is a multigenerational project which has evolved alongside changes in outside society. In Greek mythology, the goddess of justice, Themis, is portrayed as holding a pair of scales. While justice always requires balancing the rights of defendants and plaintiffs, the scales that are used for determining the balance are recalibrated from time to time.
Adam C. Powell, Ph.D., is President of Payer+Provider Syndicate. He holds a Doctorate and Master’s degree from the Wharton School of the University of Pennsylvania, where he studied Health Care Management and Economics.
