September 29, 2022

By Michael Dolce

In Title IX’s 50th anniversary year, we celebrate its achievement of greater parity between men’s and women’s college sports.  Congress promised as much with its simple words: “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.”

But students returning to campus this fall face what Title IX hasn’t curbed -- an ongoing epidemic of sex crimes.  Just this past month, the Buffalo Bills' Matt Arazia was accused of gang rape while a student at San Diego State University. The federal government reports that forcible sexual offenses have increased almost five hundred percent, now comprising 43 percent of on-campus crimes.

Four institutions influence Title IX’s effectiveness in stopping that discrimination.

1. Federal Courts. The courts have crafted standards into the law that have proven antithetical to its intent.  The Supreme Court recognized in 1979 the law was to be “effective protection against those [discriminatory] practices,” but in 1998 and 1999 held it does not require schools to remedy sexual discrimination.  Rather, it only prohibits “official decisions” to be “deliberately indifferent” and “clearly unreasonable” in response to complaints.  Of course, on its face the law commands that “no person … shall” suffer discrimination.

Schools have escaped liability for exposing students to known risk of sexual violence under judicially-crafted standards.  For example, this year Title IX claims by the third victim of dating violence by a University of Arizona football player were thrown out.  Allowing the perpetrator to remain in the university’s community did not violate Title IX, the court held, even though the university failed to protect future victims after learning of the first two.  The reasoning: the third attack was at an off-campus apartment the university supposedly could not control.  It didn’t matter the university violated its own policies against paying for the apartment after the earlier violence and had off-campus disciplinary authority over students.

In a 2018 case in my law practice, a federal court found Title IX wasn’t violated following a teacher’s repeated sexual contact and assault of a student with developmental disabilities at a school dance.  The school failed to prevent further assaults at the dance by allowing the perpetrator to stay.  The court threw the case out with no jury trial, ruling “frequent on-campus contact” thereafter was “reasonable” and not subject to “corrective action” under Title IX, despite it inflicting more mental health harm.

In litigation, schools are finding proactive efforts to expose sexual misconduct called into question.  None other than Justice Amy Coney Barrett allowed this.  In a Title IX opinion before joining the Supreme Court, she endorsed a reverse-discrimination claim that a student’s due process rights were violated by a university’s allegedly inadequate and female-biased investigation into allegations he committed sexual assault.  The ruling starkly contrasts with those barring survivors from claiming Title IX violations when limited discipline of perpetrators inadequately protects them from further harm.  Justice Barrett found it legitimate to base the claim on evidence the university’s Sexual Assault Awareness Month promotional materials cited to an article stating alcohol isn’t to blame for sexual violence, instead the “men” who perpetrate are -- rather than a gender-neutral term.

2. Congress. Congress could have counteracted the courts by amending Title IX but sat idle for years until introducing a bill last September.  But the legislation could empower the courts to do more damage - plus the bill has not moved since being introduced.

The Title IX Take Responsibility Act (117 H.R. 5396) would supplement the statute with favorable measures such as extending its reach off campus.  But it would impose a “reasonable care” standard for schools “to promptly prevent and correct the effects of any harassment,” and defines that with multiple criteria.  That invites the courts to interpret a school’s “reasonableness” in meeting those criteria.  They have already construed what is “reasonable” narrowly to justify throwing cases out without a trial.  Under the legislation, they would have more opportunities to do that.

The legislation lacks specific, objective survivor rights, like the right to be insulated from contact with perpetrators, the right to notice and protection from dangerous persons allowed to remain on campus, the right to input into sanctions necessary for protection, and the right to have a jury determine what is “reasonable” under the law.

3. Presidential Administration. The current administration is focused on reversing its predecessor’s damaging regulations to neutralize Title IX even more than the courts have already done.  Recently-proposed regulatory changes, hopefully implemented soon, will help.  But that effort will, at best, largely return the law to the poor shape it was in.

4. Schools. Schools are simply not devoting sufficient resources to prevent sex-based wrongdoing and earn survivor’s trust.  The American Association of University Women’s extensive studies have yielded “persistent, troubling findings” that survivors lack confidence their complaints will be taken seriously, so they do not report.

Trust is earned from how schools respond.  Survivors continue to see lackluster responses on a case-by-case basis, including being traumatized by continued exposure to assailants.  One recent case saw a perpetrator’s suspension reduced, returning him to campus a semester early.  It’s common.  In the last decade, at least one major study found that perpetrators are far more likely than not to be allowed to remain on campus.  Less than a third are expelled.

Inadequate Policies & Resources

Repeatedly, school administrations react to high-profile assault cases with “zero-tolerance” declarations and scrambling to create panels to investigate.  For example, University of Nebraska did so after suspending a fraternity for sexual violence.  But its prior violations raised significant questions about what zero tolerance for sexual violence means.  The university has a written “zero tolerance” policy for plagiarism but not for sexual misconduct.  Neither the student code of conduct nor university policies provide minimum sanctions for sex offenses.

Schools have responded to Title IX by devoting resources to ensure gender equity in sports.  That devotion is not matched with resources to respond to and prevent sexual violence.  University of Connecticut is one example of a school criticized for its response to survivors, reflecting a lack of confidence in its community.  The university has almost as many employees overseeing athletic equipment as oversee its response to sexual violence, and more committed to fundraising for its athletic programs.

University of Delaware is another example.  Its president responded to student protests over sexual violence incidents by acknowledging errors, claiming “no tolerance for gender-based violence,” and pledging improvements.  But promises must be backed with resources.  Despite having 23,000 students, only three university employees are devoted to Title IX enforcement.  Its sports programs assign twice that many employees to manage sports equipment, market sports programs, sell tickets, and coach team spirit.

The Bottom Line

All entrusted with Title IX’s mission must jealously guard against threats to its purpose and devote the resources necessary to be effective. If not, sexual violence on college campuses by the next anniversary of Title IX could be even more horrific.

Learn more about Michael Dolce.