How the Education Department Warped Title IX

When Congress passed the Title IX section of the Education Amendments of 1972, it aimed simply to offer women more opportunities to participate in on-campus athletics. Over the years, however, Title IX has become the legal foundation for the Education Department to insinuate itself into sexual assault cases.

The key passage of Title IX reads, “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.” In 1977, a Yale law student named Catherine McKinnon, tired of suffering on-campus sexual harassment that went unaddressed by the school, interpreted Title IX to argue that sexual harassment (and by extension, sexual assault) constituted a sex-based limitation of educational opportunity. McKinnon and several other students filed in the lawsuit Alexander v. Yale in federal, which, although dismissed on the basis of the plaintiffs having no standing, goaded Yale into establishing a grievance process for sexual harassment cases.

Hundreds of schools would take similar steps in the next few years. The McKinnon case was foundational in opening the door for on-campus sexual assault cases to be considered Title IX violations, and by extension, of concern to the federal government.But the McKinnon case never led to any watershed Supreme Court ruling that declared sexual assault cases must be considered Title IX violations.

Lacking a judicial mandate, the Reagan Department of Education was slow to interpret on-campus sexual assaults as Title IX violations. According to Terry Pell, former Deputy Assistant Secretary for Civil Rights in the Reagan-era Department of Education, and now head of the Center for Individual Rights, such violations were more the fault of students, not schools. “I don’t recall that OCR did anything on the topic of sexual assault when I was there. While schools were thought to be liable for offensive classroom behavior by professors, they were not thought to be liable for offensive behavior by male students outside of the classroom,” he told me.

However, one event during the Reagan years changed the way colleges would approach sexual assault. In 1986, a Lehigh University student named Jeanne Clery was raped and murdered in her dorm room, bringing renewed attention to the issue of sexual assault. In response, in 1990 Congress passed the Clery Act, which required schools to report crimes that occurred on campus to the public and the federal government. The Department of Education, moreover, would monitor compliance. Probably the most egregious recorded violation of the Clery Act occurred at Eastern Michigan University in 2006. EMU’s administration was fined hundreds of thousands of dollars for failing to report the sexual assault and murder of a student. Currently, the Penn State football sex abuse scandal is also being reviewed under the Clery Act.

The 1992 emendation of the Higher Education Act of 1965 stipulated that companies receiving federal financial aid had to “develop and distribute a statement of policy regarding (1) campus sexual assault programs, which shall be aimed at prevention of sex offenses; and (2) procedures followed once a sex offense has occurred.” The law’s revision also provided competitive grants for sexual assault training and prevention on campuses. Naturally, all such compliance was to be administered by the Education Department.

In 1997, the Clinton Education Department released a new set of guidelines for addressing sexual harassment cases. Like the Clinton Education Department, the George W. Bush administration reaffirmed in 2001 that schools should handle sexual harassment under Title IX, but also did little to address how schools should handle student-on-student sexual assaults.

The Obama administration has embarked a new and unprecedented level of federal involvement in sexual assault cases. The signature step in the Obama administration’s stance on the issue was the “Dear Colleague” letter of 2011, which asserted that sexual assault claims must be handled under Title IX. The Letter also included a number of disturbing recommendations, the most troubling of which are those involving on-campus sexual assault proceedings. The letter “strongly discourages” universities from permitting the accused “to question or cross-examine the accuser,” and encourages a “preponderance of evidence” standard for determining a defendant’s guilt or innocence. Such a suggestion runs counter to the “beyond a reasonable doubt” standard used by civil courts. As Peter Berkowitz has written, this means that “universities are institutionalizing a presumption of guilt in sexual assault cases.”

The guidance in the 2011 Dear Colleague letter has troubling implications for democracy. The extensive procedural rules governing the adjudication of sexual assaults were never approved by Congress. They were merely suggestions offered up by Assistant Secretary of Civil Rights Russlyn Ali and a cadre of unelected bureaucrats in Washington. From such a perch, it is easy to vague yet highly consequential rules like, “a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe.” A rape, of course, would constitute a hostile environment. But an overly zealous government examiner or on-campus Title IX coordinator could plausibly interpret less severe transgressions as evidence for a campus marked by sexual hostility. A whole school’s reputation could be tarnished on the whims of a handful of unelected functionaries.

The Obama administration’s next tactic in its campaign against sexual violence on campus was a May 2014 press release naming at least 55 colleges and universities that were at the time under investigation for improper handling of sexual assault and harassment cases. (It was probably cold comfort that the letter noted a college or university’s appearance on this list and being the subject of a Title IX investigation in no way indicates at this stage that the college or university is violating or has violated the law.”) The terms of settlement of many of these types of cases confined to closed-door negotiations, but probably do not look so different than what Tufts University agreed to in its 2014 settlement: an implementation of diktats such as “conduct periodic assessments of the campus climate,” and “report annually to OCR on the steps taken by the Title IX coordinator to prevent and respond to sexual assault and harassment.” There was also a monetary payout to the assaulted student.

With tougher guidelines now in place, schools can expect a higher level of scrutiny from the Education Department in sexual assault cases. Any real challenge to the new 2011 guidelines would have to come from schools themselves, since they are the only entity with legal standing to challenge the standards. But schools are reluctant to challenge Title IX guidelines. Electing a Republican administration that could rewrite the standards might solve the problem, but such a move is politically impractical. If history is any guide, then, the Education Department’s involvement in adjudicating on-campus sexual assaults will only continue to grow.