By: Yael Massen
We live in college community, and many of you may be students or come into contact with students on a daily basis. Those students are subject to Title IX. 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 of the Education Amendments of 1972
Title IX is a comprehensive federal law enacted to prohibit discrimination “on the basis of sex” in any federally funded education program or activity. The law was drafted following the passage of the Civil Rights Act of 1964.
Title IX also governs student sexual misconduct on campus. There are some things happening with Title IX that may cause some upheaval, so we provide this informative piece. Things are up in the air based upon current administrative decisions.
Why is Title IX in the news?
During the Obama Administration, The Department of Education’s Office of Civil Rights (OCR) has issued various “Dear Colleague Letters” (DCLs) that have outlined obligations school districts and federally-funded institutes of higher education have regarding Title IX complaint investigations. DCLs drafted under the Obama administration required schools to adopt the preponderance of evidence standard of proof in investigating Title IX complaints, the same standard of proof used in discrimination cases under Title VII of the Civil Rights Act.
What changes to Title IX enforcement have occurred under the Trump Administration?
Recently, the Secretary of Education for the Trump Administration, Betsy DeVos, withdrew DCLs on Sexual Violence and a Q & A on Title IX and Sexual Violence, dated 2011 and 2014, respectively. According to the OCR, these former guidance documents “interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct.”
A new Q & A on Campus Sexual Misconduct, released September 2017, will serve as an interim guide until the conclusion of a notice and comment rulemaking. In this document, the OCR states that procedures for finding responsibility for sexual misconduct “should be reached applying either a preponderance of the evidence standard or a clear and convincing evidence standard.” The OCR further states, “The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applied in other student misconduct cases.” The burden of proof for conduct cases can therefore be determined at the discretion of the educational institution.
Preponderance of evidence standard is defined as “the proof need only show that the facts are more than likely to be than not so.” The clear and convincing standard is defined as “the proof which results in reasonable certainty of the truth.” Both are standards of proof used in civil cases, but differ in applications according to risk of loss (such the loss of a fundamental liberty). Typically, “clear and convincing evidence” standards are used in claims involving fraud, wills and inheritance, and end-of life decisions.
Additionally, the new guidance issued by the OCR states that “Schools may permit an informal resolution, such as mediation, if it is appropriate and if all parties voluntarily agree.” This language appears to contradict 2001 guidance from the Department of Education (“mediation will not be appropriate even on a voluntary basis”) which was issued after a formal notice-and-comment process.
Title IX does not define the meaning of “sex.” Federal courts have interpreted Title IX in a similar manner as Title VII of the Civil Rights Act of 1964. In Title VII cases, courts initially defined the term “sex” as the biological sex assigned to a person at birth. The Supreme Court has also used the terms “sex” and “gender” interchangeably. More recent case law has begun to examine the definition of “sex” under Title IX: Does this mean only biological or birth sex? Does it take into consideration gender? Does it include sexual orientation, gender-identity, and/or transgender status? Statute and regulation do not define sexual harassment as sex discrimination, but through case law and enforcement guidance, harassment is a form of discrimination under Title IX.
During the Obama Administration, the OCR issued a DCL in May 2016 specifying schools’ obligations toward transgender students. This letter explicitly directs state and local agencies to “treat a student’s gender identity as the student’s sex for the purposes of Title IX and its implementing regulations.” As of November 2017, this DCL is still in place.
We do not know what the future may hold, but we do know that more inconsistency and upheaval will not help students. Both alleged perpetrators and victims deserve to have standards and guidelines when this occurs. Unfortunately, that’s not the case. Make sure you know your rights and talk to an attorney prior to talking to anyone else about any allegations made against you.
*This entry is not intended to provide legal advice or to open a lawyer-client relationship.