Implementation of Title IX into Colleges: Analysis and History of Policies

Intro

College is a place where students go to learn. However, for years many other things that are rarely publicized have come along with this experience. College is as much a place for big parties, binge drinking and sexual assault as it is for learning. Approximately 1 in 4 college women are sexually assaulted before they graduate, which is 7% higher than the national average for women in general (Hecht Schafran and Weinberger, 195). The statistic is even worse when limited to college-aged women. “Women in the traditional age range for college students—from eighteen to twenty-one—are four times more likely to be sexually assaulted than women in any other age group, and college-bound women are at greater risk than their non-college-bound peers”(American Association of University Professors,93). In addition, victims often don't get justice because they are too scared to report the assault because they fear how they will be treated. While rape is only one kind of sexual assault and approximately 18% of US women have been raped, only 16% of victims reported their rape to police.(Hecht Schafran and Weinberger, 195). When they do report the assault, the perpetrator often doesn't get a just punishment, if they get one at all.

The system of how colleges should respond to sexual assault on campus is a much debated issue and has undergone many changes over the last 40 years. Prior to 1980 there were no national guidelines for how colleges should deal with campus assault. A first step for making colleges act on sexual assault reports was taken in 1980, when Title IX was officially applied to deal with sexual assault cases. It states that no one should be discriminated against based on their sex in an education setting that receives federal funding. It would, however, take 12 more years before the Supreme Court made this ruling official. The next significant change came in 1990, when the Cergy Act was passed. This act mandates that colleges have to publicly report the crimes, although in very broad categories. During Obama's time in office, he also made strides in the issue by releasing the Dear Colleague Letter in 2011. The letter put in place a guideline of how schools should be handling sexual assault cases. This was considered a major step forward for the rights of victims. However, most recently the secretary of education, Betsy Devos has changed the policies and almost completely reverted the system to how it was before Obama's letter.

Sexual assault is a serious crime and yet colleges almost always handle the cases reported to them without involving the police. Even though the government has tried to improve the system of how colleges handle the cases, there are still many problems. The current rules of how colleges must handle sexual assault are unclear and inefficient, and one ambiguous aspect is finding the right balance between due process and the general rights of the victims and the accused. Another large problem is that colleges are not unbiased judges, because they can be greatly affected by the outcome of the cases. These cases can cost the college a lot of money and not just because they have to hire specific officers to handle the cases but also in the case that the victim or the accused sues them, or if they are found guilty of not following title IX guidelines and lose their federal funding. On top of this, their reputation can also be affected by the outcomes of the cases. Colleges are in place to punish the student as they see fit and to just try to make their campus as safe as possible however this punishment only applies to the college setting. It is not enough to take the place of the punishment under the law. The two systems serve different purposes and should not be seen as substitutes. Instead, for true justice to occur, both the colleges and the courts need to be involved in adjudicating the cases.

Many have argued that mandatory reporting to the police will limit the number of victims that will come forward because many victims are scared of being mistreated by the police. However, over time, as police improve the way they handle the cases, involving the police in the cases will lead to fuller investigation and justice. Although many feel that colleges should take sole responsibility for dealing with sexual assault on campus, this system has failed the victims of assault. Colleges should be mandated to report all cases to police for adjudication, because colleges are not equipped to properly investigate crimes by themselves, although they should maintain the right to impose their own disciplinary actions in addition to the outcome the legal case.

The history of the policies

Sexual assault on campus has been a prevalent issue for decades. The statistic of 1 in 4 is dropped frequently, however, it is unclear what has really been done to try and lower that number. The first major stride made to try to reduce sexual assault on campus was Title IX. Originally passed in 1972 it 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.”(“Title IX Frequently Asked Questions.” ). In 1980, the National Advisory Council on Women’s Education Programs reviewed Title IX, issued a statement that Title IX should be interpreted to prohibit sexual harassment, the Department of Education’s Office of Civil Rights issued administrative guidance to colleges that prohibited school employees from sexually harassing students. (Sarkozi,128). Twelve years later it was made official when the Supreme Court recognized that sexual harassment could fall under Title IX gender discrimination (Sarkozi,128) . This required schools to act if they knew or should have known of harassment by students. Failing to effectively do so would result in Title IX violations (Sarkozi,129).

In 1990 other steps were being taken, the Clery act was enacted by congress stating that colleges have a legal duty to publicly disclose these crimes that are reported to their campus police or department (Von Spakovsky, 4). It requires the colleges to file annual reports with the federal government on campus crime, however the purpose of this was to generate a statistic, not to further investigate the cases. However, it did encourage colleges to try to limit the amount of assaults in order to not to damage their reputation and enrollment. Amendments were passed in 1992, 1998, and 2008 requiring campuses to develop and spread prevention policies, make specific assurances to victims, and report an expanded set of crime categories, including hate crimes. (American Association of University Professors,95).

When Obama came into office he made some big changes. In 2011 Obama Administration released the dear Colleague letter that outlines the procedures that colleges must follow when sexual assault is reported if they want to keep their federal funding. The Letter required that all, “Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant”(Sarkozi,132). The guidelines were viewed as a major victory for victims of crime, however, tension remains between the requirements of Title IX, constitutionally and contractually mandated due process, and the rules of confidentiality and disclosure under FERPA (Triplett,510). Colleges have had to open Title IX offices and hire special counselors in order to be in line with the guidelines, since the letter was released in 2011 colleges have spent more than $100 million “to meet their Title IX obligations regarding sexual assault”(Wilson, 4).

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Most recently under the Trump administration the Secretary of Education Betsy DeVos has released new rules regarding how campuses should handle sexual assault. They released a statement that declared that the Obama administration rules and procedures had failed and undid them. On top of reverting back, Devos also released new rules, one of them significantly changed the definition of sexual misconduct on campus, to the Supreme Court’s definition of sexual harassment: “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”

College adjudication alone is insufficient

Colleges’ main job is to educate so it's no surprise that their adjudication system is messy and disorganized. Since the policies have changed so much it's unclear exactly how colleges should set up their courts. The lack of clarity has created an environment in which colleges are uncertain on how to adjudicate cases and “Without affirmative guidance on how to balance these competing obligations, the OCR's views on Title IX will remain ineffectual, thereby endangering victims, increasing the probability of liability on the part of the institution for denial of due process, and jeopardizing the accused student's due-process”(Triplett,511). Colleges want to take the path of least resistance and in this case it means handling the cases in a way that they will receive the least backlash, meaning handling the case in a way that could never be accused of not following the federal guideline . The Dear Colleague letter fails to address the correct amount of due process that should be given in order to not come in the way of proper victim protection (Triplett,490) and this leads to colleges being oversafe with protecting the victim and denying the accused rights.

Colleges are not well suited to conduct full investigation because it creates a possibility

for liability. Colleges have been sued due to how they handle sexual assault cases and “failing to provide sufficient investigative and judicial proceedings when responding” (Triplett, 488) by both the victims and the accused. “Public university systems with schools in the nation’s five major athletic conferences paid out more than $10.5 million in settlements related to sexual-harassment claims in 2016 and ’17, according to a Wall Street Journal review of recent settlements, gathered mainly through public-records requests”(Korn,1). The money spent to set up the offices to follow the title IX guidelines and to settle with students who aren't happy with how the case was handled adds up to over a hundred of million dollars. When colleges handle the cases “rather than an unbiased jury deciding guilt, biased school administrators who have strong financial incentives decide responsibility in these cases” (Sarkozi,142). Not only do the colleges have to think about the possibility of a million dollar lawsuit but also the possibility of losing all federal funding. Because of this “College campuses have enormous financial incentives in sexual assault cases because acquitting an accused student carries the threat that OCR could exercise its enforcement authority.152 If found guilty in such an investigation, a college could face losing over half a billion dollars in federal funding.153”(Sarkozi,142)

Colleges position causes them to be biased because of how the outcome can effect them greatly in ways other than just financial. Colleges can receive a lot of public backlash if they mishandle these cases. Campus authorities are often reluctant to refer incidents to the criminal justice system and give up control of the proceedings, because they are afraid that doing so would open them up to public as well as media scrutiny.(American Association of University Professors,95).The negative attention from the media can affect colleges donations and a loss of donations to often very profitable sports programs.(American Association of University Professors,95) and can give them the label of a “rape campus”. To avoid this schools often force students who report to school disciplinary panels to sign confidentiality agreements, barring them from pursuing the case in the criminal or civil courts(Fisher et al, 2000; Lombardi, 2009). This bars victims from being able to take legal action against their attackers and getting proper justice.

What police have that colleges don't

Sexual assault is crime punishable under the court of law and because of the seriousness of the crime, colleges need to report it to the police so a proper investigation and trial can be done. Colleges don't have access to the same tools to fully investigate like police and try the case like the criminal justice can. In terms of investigating there are certain things that colleges can't do that are standard in police investigations such as “issue search warrants, compel students to submit evidence, or subpoena witnesses”(Wilson, 5). Without such tools it's hard for the college to gather all the evidence needed to perform a full investigation. The college trial process is also inferior to that of the criminal justice system in that “ No one is under oath to give information truthfully. And unlike court proceedings, the campus judicial process wasn't designed to be an open forum, where an impartial judge or jury hears and decides a case before the public. Instead, campus hearings are closed. Federal privacy rules that protect students mean colleges typically can't disclose, confirm, or correct the details of a case or its outcome.” (Wilson, 5) . The police and judicial system have been designed to be the most effective and unbiased as possible and part of that means having “separate entities performing various aspects of the case”(Sarkozi,144). However “a university performs the “functions of investigation, prosecution, fact-finding, and appellate review in one office, and . . . that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.” 170”(Sarkozi,144). Having one office performing every aspect of the case impartiality is going to be very hard to achieve.

The biggest difference between the criminal justice system handling the case versus the University is punishment. Some argue that since “The Dear Colleague Letter mandates that college campuses use a preponderance of the evidence standard,119 unlike the criminal system which utilizes a beyond a reasonable doubt standard.120”(Sarkozi,137) the school being able to expel a student is too much punishment with that amount of proof. However, another argument against the college being able to administer a punishment without involving the police is that the maximum penalty that can be issued by colleges is expulsion from school, which is insufficient for crimes such as rape. Rape can be punishable by real jail time and having to register as a sex offender, so allowing it to be handled by a system in which the highest punishment colleges can give is expulsion is insufficient. In addition “If the accused is expelled, with no criminal punishment, the accuser lives with the knowledge that the accused could rape other women. Rapists are criminals, not just college students who violate a school’s honor code. They deserve to be prosecuted in criminal court, and if found guilty, punished accordingly, including having to register as convicted sex offenders.” (Von Spakovsky,12).

Why involving the police might lead to less justice

Mandatory Reporting to police has problems and may actually limit victims from reporting crimes on campus. Many students have cited that their reason for not reporting sexual assault to the school is that they don't want the police involved because they're scared of being mistreated and lose confidentiality. (Holland and Cortina, 51).