Preventing, investigating, and adjudicating sexual assaults on campus is likely to continue to be a hot-button issue with the media and federal lawmakers. On January 22, 2014, President Obama announced the creation of the White House Task Force to Protect Students from Sexual Assault. Less than three months later, Sen. Claire McCaskill (D-MO) issued an unprecedented online survey to 450 institutions inquiring about campus sexual misconduct policies and Title IX compliance. When Congress passed Title IX in 1972, no one could have anticipated the level of scrutiny colleges and universities are now receiving for handling the difficult issue of sexual assault on campus.
Title IX’S Early History and Development
Title IX of the Education Amendments of 1972 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.”1 Title IX forbids institutions of higher education from discriminating on the basis of sex, but its enforcement has shifted over the past 42 years. Initially, controversy ensued over gender equity in athletic programs. In Grove City College v. Bell (1984), the Supreme Court ruled that Title IX covered only programs receiving federal funds, such as financial aid offices, and generally not college athletic departments. Congress reversed the court’s decision in the Civil Rights Restoration Act of 1987, overriding President Reagan’s veto. The law clarified that Title IX coverage included all education programs, not just programs and activities receiving federal funds. In the 1990s, the focus began to shift from athletic inequities to an institution’s proper legal obligation when sexual harassment occurs.
Charges of failure to comply with Title IX can spur enforcement action by the federal government, reputational harm, and even litigation brought by students, faculty, or staff. For 20 years, legal uncertainty existed as to whether a claimant could collect monetary damages. In Franklin v. Gwinnett County Public Schools (1992), a high school student was awarded damages after she was sexually harassed by her coach and teacher. The Supreme Court ruled that individuals could recover money damages in addition to an injunction against this kind of discrimination in the future.2 In 1999, the Supreme Court addressed whether an institution could be legally responsible for student-on-student sexual harassment. In Davis v. Monroe County Board of Education, the court ruled that a school could be liable if it had actual knowledge of the sexual harassment and acted deliberately indifferent. The Supreme Court clarified that the harassment must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”3
Guidance from the Department of Education's Office for Civil Rights
The Department of Education’s Title IX regulations have long mandated that institutions publish a non-discrimination statement, designate an employee responsible for Title IX compliance, and adopt and disseminate prompt and equitable grievance procedures for those making sex discrimination complaints.4 Other than those few regulations, only “guidance” from the Office for Civil Rights (OCR) interprets responsibilities of institutions under Title IX.
In guidance issued in 1997 and revised and expanded in 2001, the OCR emphasized that institutions must take reasonable steps to prevent and eliminate sexual harassment as a condition of receiving federal funds. The OCR’s guidance distinguished institutional responsibilities under Title IX from the standards for a private right of action under the same statute. In April of 2011, the OCR issued additional guidance in a “Dear Colleague” letter focusing on sexual violence as a form of sexual harassment. Many institutions had numerous questions about the detailed guidance, which was replete with OCR directives on what institutions must do when addressing a student’s claim of sexual assault.
In April 2014, when the White House task force issued its initial report, titled Not Alone, the OCR simultaneously provided even more guidance in a question-and-answer document that directed campuses how to conduct an investigation, how to examine witnesses, and how to provide interim relief to a claimant. Although this sort of guidance is not binding with the force of law, the OCR follows the guidance when investigating institutions for compliance with Title IX. These investigations generally result in resolution agreements requiring institutions to comply with the OCR’s interpretation of the law. In May 2014, the OCR issued a list naming 55 colleges and universities then under investigation for compliance violations of Title IX, and supplemental lists have been forthcoming as the OCR’s enforcement efforts have been increased.
The White House task force’s first report proposes (1) to help those institutions surveying their campus climate; (2) to help institutions comply with their obligation to provide preventive programs; (3) to help institutions in responding effectively when a student is sexually assaulted; and (4) to begin to strengthen enforcement efforts and interagency coordination. On Capitol Hill, McCaskill hosted several roundtable discussions to address sexual assault on college and university campuses. Questions emerged over the role of campuses versus the role of law enforcement, and over the inherent tension between a victim’s interest in confidentiality and a community’s interest in safety. Legislation was promised as this discourse continues. For now, campuses must strike a balance and develop educational programs that may lead to prevention of sexual assault. Difficulties in investigation and adjudication of sexual assault claims will persist, and more will come from the White House task force. The meaning and impact of Title IX has morphed much since its inception in 1972 and will continue to develop with additional complexities, nuances, and controversies in the future.
1 20 U.S.C. § 1681(a) (2012).
2 503 U.S. 60 (1992).
3 526 U.S. 629, 633 (1999).
4 34 C.F.R. § 106 (2013).
Institutions may find the Association of Governing Boards of Universities and Colleges’ AGB Advisory Statement on Sexual Misconduct (2013) helpful (available at http://agb.org/sites/agb.org/files/u3/statement_2013_sexual_misconduct.pdf).
Ada Meloy is the general counsel of ACE. The assistance of Aaron S. Farovitch, legal intern in the Office of the ACE General Counsel and student at Georgetown University Law Center (DC), in the preparation of this article is gratefully acknowledged.