The U.S. Department of Education on Wednesday released a 2,033-page document, updating its regulations prescribing how schools and universities should address sexual misconduct under Title IX of the Education Amendments of 1972.
One of the achievements of the new regulations is that they delineate more clearly and precisely (by using the definitions outlined in the Violence Against Women Act) what actually constitutes sexual violence.
Advocates for survivors may decry this shift, fearing that sexual harassment and sexual violence may no longer be addressed as urgently and fervently on college campuses. But colleges and universities already adjudicate myriad infractions -- from noise violations in the residence halls to underage possession of alcohol. Nothing legally prevents institutions from continuing to address sexual misconduct via their own campus code of conduct. If anything, by narrowing the scope of infractions susceptible to federal Title IX enforcement, I believe it frees the federal government to invest time and resources more fruitfully -- by focusing on developing innovative programming to curb the problem of sexual violence on campus.
After all the attention that has been focused in recent years on Title IX adjudication, the number of sexual assaults has not seemed to decrease, nor has the actionable number of reports made to universities increased. If as a society we want to reduce the number of school shootings, should we focus on legislating reasonable gun restrictions, or should federal agencies spend time and money investigating how well a school acted after the fact? As a survivor of sexual assault, I would much rather not have experienced the trauma in the first place than worry about how my university handles my report.
Title IX was originally enacted to end the practice of gender-based quotas in law schools and medical schools and to provide women equal opportunity for competition in intercollegiate sport. Over time, the mandates of Title IX that no person be denied the benefits of an education based on sex were broadened by the U.S. Supreme Court to include sexual harassment.
But I do not believe Title IX was ever intended to be a vehicle by which institutions are required to become pseudo-federal courts. First, though well meaning, not every administrator is qualified to oversee the process. (The field of higher education administration lacks a formal accrediting body that could mandate all graduates receive adequate legal education.) Case in point: at an institution where I previously worked, I completed the training to become a faculty representative on hearing panels for sexual violence cases. That training lasted an hour.
Second, until now, Title IX regulations allowed schools and universities to define for themselves what constitutes sexual misconduct. Janet Napolitano, president of the University of California system and former attorney general of Arizona, decried the confusion that Title IX regulations created, requiring institutions to handle everything from “offensive comments to gang rape” and rendered very difficult a job that even the most skilled law enforcement agencies and courts have difficulty handling.
And that led to a huge influx in the number of successful suits brought by the accused for violations of due process. A student at the University of Southern California was suspended for violating the student code of conduct after a hearing panel found that though his sexual encounter with a female student was consensual, during a group sexual encounter he “endangered her” by not preventing other students from slapping the victim on the buttocks. An appeals court in California reversed that decision, finding that the accused’s due process rights had been violated.
In an incredibly compelling argument, Harvard Law professors Jeannie Suk Gersen and Jacob E. Gersen asserted that Title IX compels institutions to create a “sex bureaucracy.” Referencing policies from institutions such as Yale University that defined permissible sex as imaginative, enthusiastic and creative, Gersen and Suk argued that schools are now “in the business of formulating and providing sex and relationship instruction and advice, and regulating it bureaucratically.”
Universities can spend upwards of $1 million in providing the staff, training and infrastructure to comply with regulatory mandates such as Title IX, yet I think that money can be better spent on innovative programming that seeks to eliminate campus sexual assault. I call for greater investment in the “It’s On Us” campaign, begun during President Obama’s administration, and developing curricula for middle school and high school students teaching about consent and what constitutes an unwanted sexual encounter.
Though some may believe the new shift in guidance provides too much protection to the accused and perhaps will impose a court-like adversarial process for any college student who makes a claim, as both a sexual assault survivor and as someone who studies legal issues in education, I believe we must maintain the integrity and foundation of American justice, regardless of the circumstances.
Following the launch of the #MeToo movement, Justice Ruth Bader Ginsburg responded, “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”