Future of Title IX Becomes Clearer on Its Anniversary
WASHINGTON — As Title IX turns 50 this week, experts weigh in to discuss how its recent history could hint at what’s still to come for the landmark educational sexual discrimination law.
When Title IX was being formulated in Congress, the lawmakers that conceived it couldn’t have foreseen that issues like gender identity or what exactly constitutes sexual harassment would be applied to its enactment. As The Well News previously reported, Title IX was created to grant the same protections from sexual discrimination in the workplace to educational settings, but the wide breadth of the law has had lasting implications even without specific legislation tailored to those issues.
Consequently, a series of Supreme Court decisions were used to set a precedent for how Title IX could be applied to a range of educational issues, such as in the 1982 North Haven Bd. of Educ. v. Bell decision that held Congress intended Title IX to apply to gender-based employee discrimination as well as student discrimination.
One year later, the Supreme Court heard arguments in Grove City College v. Bell in which the justices concluded in a 7–2 decision that the private college’s financial aid program was subject to federal requirements because its students received federal grants. Questions over the limits of Title IX would play a role in determining the rulings in a handful of other cases as well, like in Gebser v. Lago Vista Independent School District, in which the court found that a federally funded school district was not required to pay sexual harassment damages to a student who secretly had a romantic relationship with a staff member.
When former U.S. Sen. Birch Bayh, D-Ind., and his colleagues wrote Title IX to cover the general principle of gender equity, issues like sexual harassment weren’t really on their radar, KC Johnson, American history professor at Brooklyn College, told The Well News.
“It’s very generally written and its application has changed at several stops along the way,” Johnson said. “But it’s not written as an anti-harassment law, even though that’s become one of its major applications. It’s a more generalized principle of anti-discrimination that Bayh seems to have been promoting.”
This context is important in explaining what the Obama administration was trying to do when it directed the Education Department’s Office of Civil Rights to issue a “dear colleague letter” in April 2011 to offer guidance that covered a range of sexual violence. Under Title IX, the administration argued, students were protected from sexual assault, battery and coercion.
In attempting to crack down on the scourge of sexual assault on college campuses, the Obama administration was again altering the scope of Title IX. At the core of this argument was that universities have an obligation to adjudicate these cases, Johnson said, and if they didn’t, the administration contended that the schools were at risk of losing all federally administered funds and grants.
But how they went about adjudicating these issues was a separate matter. In a more detailed follow-up to the guidance published in 2014, OCR required schools to use the “preponderance of the evidence” standard in disciplinary hearings related to Title IX infractions.
Further, the guidance did not require schools to allow the cross-examination of witnesses or even of the primary parties involved in the case. OCR “strongly discourag[ed]” schools from allowing the parties to personally question or cross-examine each other during sexual violence hearings because doing so could perpetuate a hostile environment.
The Obama White House and OCR also pressured schools to utilize a “single investigator” model that gave one person appointed by a Title IX coordinator the authority to investigate alleged misconduct and to determine their guilt or innocence in the case. Despite the threat of dire consequences if schools didn’t follow through with these requirements, R. Shep Melnick, professor of American politics at Boston College, told The Well News that the last thing the administration wanted to do was trigger a judicial review of the dear colleague letter.
“These very long, very extensive regulatory investigations that were meant to basically embarrass and bully institutions until they signed a consent decree,” Melnick said. “So, to the extent that they were combined with these very draconian investigations — that’s the way in which enforcement took place.”
While the efforts to curb and adjudicate sexual violence in colleges were at the time met warmly by sexual-assault survivor groups and some Democratic lawmakers, they drew the ire of advocates of due process. Eventually, the Obama-era guidance was withdrawn under the Trump administration and replaced with a new set of standards that allowed schools more leeway with how they conducted sexual discrimination hearings.
Under the Trump administration’s rules, Melnick said universities could choose what standards of evidence to employ in their investigations as long as the same standard was applied for all sexual harassment cases. The Education Department explicitly prohibited schools from adopting the previous single investigator model and maintained that cross-examination was crucial to determine witnesses’ credibility in the cases.
“There are some very hard tradeoffs here that we can’t ignore,” Melnick told The Well News. “The more you try to protect the due process rights of the accused, the more likely it is [that] you’re going to make it more difficult and less likely for accusers to come forward. So, there is an inherent problem that’s very difficult to balance. You’re not going to be able to please everyone completely.”
Although the principle of gender equity as it applied to Title IX was enacted without controversy, political underpinnings had nonetheless sprouted from its wide applicability. As a presidential candidate, Joe Biden promised to quickly roll back the rules introduced during former Education Secretary Betsy DeVos’s tenure.
Secretary Miguel Cardona’s Education Department under President Biden issued a notice of interpretation in June 2021 that clarified Title IX prohibits discrimination based on sexual orientation and gender identity. But other than this action, Melnick said the Trump administration’s Title IX policies are still on the books.
“One of the things that really has surprised me is that despite all the rhetoric traded publicly on how much they hate these regulations, they’ve been extraordinarily slow to do anything about them,” he said. “Here we are almost a year and a half into the new administration and they haven’t even proposed regulations. This process is going to take at least a year, maybe more, so they’re going to have to scramble to make sure they can do it before the Biden administration’s first term ends.”
However, the Biden administration did propose its own new set of campus sexual assault rules on Thursday, the 50th anniversary of the law’s enactment. Now, it appears Biden’s new set of rules relating to how sexual discrimination hearings are conducted will largely return to the Obama-era guidance, including eliminating the requirement that colleges hold live hearings to adjudicate the cases and allowing schools to appoint a singular “campus decision-maker” to evaluate the cases, according to the Associated Press.
Additionally, the new proposal rescinds the ability of schools to defer proceedings on cases that involve off-campus misconduct and increases the obligations of colleges in responding to complaints. Before the changes are finalized, they must undergo a period of public feedback and will likely not take effect until next year at the earliest.
“Over the last 50 years, Title IX has paved the way for millions of girls and women to access equal opportunity in our nation’s schools and has been instrumental in combating sexual assault and sexual violence in educational settings,” Cardona said in remarks from a White House ceremony honoring Title IX’s impact on Thursday.
“As we celebrate the 50th anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all our nation’s students — no matter where they live, who they are, or whom they love — can learn, grow, and thrive in school.”
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