Guidelines and Procedures
What exactly is Title IX and why is it being used to combat sexual violence on college campuses? Title IX is part of the 1972 Education Amendment and states that “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 educational program or activity receiving federal financial assistance”.[1] The purpose of Title IX is to make it so that men and women have equal access to educational programs, which includes policies meant to guide practices used to combat campus sexual violence.[2] Such policies and universities' implementations of them have come into the limelight in recent years as new studies and campaigns on social media have shown that there is an alarmingly high number of sexual violence instances on college campuses. One such study found that one out of every four women at college experience some type of sexual violence, and there are no indicators that rates of sexual violence on college campuses are decreasing.[3] However, this number could be even higher as many victims of sexual violence choose not to come forward and report it.[4]
With this new awareness about the sexual violence culture that exists on many college campuses across the country has come government legislation that gives most of the authority to discipline sexual violence acts to the colleges. This authority includes giving schools the ability to adjudicate sexual violence acts, including ones that do not happen on their campus. Colleges can also operate their own judicial systems that are distinct from those we see in civil society.[5] That being said, the judicial process used by colleges is heavily influenced by the criminal justice system. One study conducted in 2021 by Javorka and Campbell analyzed how strong this influence of the criminal justice system was on a university’s response and conceptualization of campus sexual assault. The study found that despite colleges and the criminal justice system having their own distinct goals, Title IX procedures still applied criminal definitions and concepts to address sexual assault.[6]
The influence of the criminal justice system on Title IX procedures has brought with it concern about the due process rights of students being violated during these procedures. This concern is further amplified by the difficult task college campuses face of trying to balance both the rights of the victims and those of the accused.[7] There are many different conflicting laws and policies that bind the Title IX adjudication system, making it difficult for colleges to meet both the needs of the victim and those of the accused. Such limitations on due process that occur during Title IX procedures as identified by Harper et al. include that, “student respondents are not guaranteed the right to legal representation, to discovery, to a particular standard of proof, to cross-examine witnesses, to appeal, or to rules of evidence during proceedings. Institutions of higher education can choose to allow counsel and/or other advisors, to cross-examine witnesses, third-party expert testimony, and appeal if administratively and financially practical”.[8] Limitations on due process rights are not the only problem facing college campuses when adjudicating acts of sexual violence.
The process of filing a Title IX complaint is lengthy and entails a great deal of information and bravery from the victims in speaking out against their abusers. When a victim comes forward and files a complaint with their campuses’ Title IX office, they do so understanding that the only entity that will be investigating the complaint is that college, and there will be little to no other effective way to take action against their abuser.[9] This can make it extremely difficult for victims to come forward, especially if their abuser is someone strongly connected and respected by the school such as a faculty member. These abusers are already at an advantage as they are connected to the very institution investigating them, further adding to the power imbalance that exists in cases of sexual violence. In terms of what constitutes sexual violence, the time period a victim has to file a complaint, and the resources that the college will devote to the investigation vary widely by school. The Department of Education states that a complainant has a right to an impartial investigation and an opportunity to present witnesses and evidence, but does not specify how colleges must go about these processes.[10] This does, however, put the burden on the victim to supply as much evidence as they can to the Title IX office in hopes that their abuser will be adjudicated. The victim will also most likely never find out if their abuser was given any disciplinary action after the end of the investigation. It is also highly likely that the victim’s identity will be revealed to their abuser.[11] All of these factors combined make it very difficult for victims to come forward, as the process is long and grueling and now their abuser, many of whom are already in a higher place of power, know that they have spoken out against them. This may be why many young women are still choosing not to come forward.
Despite the difficulties of balancing students’ due process rights and the struggles for victims to file Title IX complaints, it has been found that most colleges adhere to Title IX procedures and have taken many steps to try and limit sexual violence on their campuses. A study conducted in 2019 analyzed how college campuses are following Title IX procedures and other related policies. The study included all United States higher-level education institutions that provided at least some of their instruction on a physical campus and were Title IX participants. The study found that 95% of these institutions had clearly visible Title IX policy against sex discrimination, and 85% had a separate sexual violence policy as well. It was also found that 61% of these institutions offered programs to students that were aimed at preventing sexual violence, and 65% offered on campus counseling for victims.[12] These numbers show an increase in colleges following Title IX procedures, a trend that will hopefully continue.
Notes
1. “Title IX and Sex Discrimination,” Home (US Department of Education (ED), August 20, 2021), https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html.
2. Jennifer R. Wies, “Title IX and the State of Campus Sexual Violence in the United States: Power, Policy, and Local Bodies,” Human Organization 74, no. 3 (Fall 2015): 276–86, http://dx.doi.org.mutex.gmu.edu/10.17730/0018-7259-74.3.276.
3. Wies, “Title IX and the State of Campus Sexual Violence in the United States.”
4. Valerie A. Sulfaro and Rebecca Gill, “Title IX: Help or Hindrance?,” Journal of Women, Politics & Policy 40, no. 1 (January 2, 2019): 204–27, https://doi.org/10.1080/1554477X.2019.1565460.
5. Wies, “Title IX and the State of Campus Sexual Violence in the United States.”
6. McKenzie Javorka and Rebecca Campbell, “‘This Isn’t Just a Police Issue’: Tensions between Criminal Justice and University Responses to Sexual Assault among College Students,” American Journal of Community Psychology 67, no. 1–2 (2021): 152–65, https://doi.org/10.1002/ajcp.12448.
7. Shannon Harper et al., “Enhancing Title IX Due Process Standards in Campus Sexual Assault Adjudication: Considering the Roles of Distributive, Procedural, and Restorative Justice,” Journal of School Violence 16, no. 3 (July 3, 2017): 302–16, https://doi.org/10.1080/15388220.2017.1318578.
8. Harper et al., “Enhancing Title IX Due Process Standards in Campus Sexual Assault Adjudication.”
9. Sulfaro and Gill, “Title IX.”
10. Sulfaro and Gill, “Title IX.”
11. Sulfaro and Gill, “Title IX.”
12. Tara N. Richards, “An Updated Review of Institutions of Higher Education’s Responses to Sexual Assault: Results From a Nationally Representative Sample,” Journal of Interpersonal Violence 34, no. 10 (May 1, 2019): 1983–2012, https://doi.org/10.1177/0886260516658757.