By: Megan Bozzer*
Published: April 15, 2024
I. INTRODUCTION
When the Supreme Court ruled in Franklin v. Gwinnett County Public Schools that sexual assault constituted sex discrimination under Title IX, college campuses nationwide were impacted.[1] Since the Franklin ruling in 1992, the efforts to define sexual assault and raise awareness thereof on college campuses have spurred various revisions and changes to existing policy relating to Title IX. Each President’s administration has made efforts to shape Title IX policy, taking approaches that are distinct and garnering different support and opposition from term to term.
Despite having limited control over the development of Title IX rules, college campuses experience their impact the most.[2] While formulation of Title IX rules is outside a school’s control, colleges can implement policy and conduct maneuvers that promote consistency in application, even amidst changes in presidential administrations. These policies can serve as a reflection of initiatives aimed at achieving a balance of fairness between the accuser and the accused, while also providing education to support individuals navigating this complex regulatory space.
II. BACKGROUND
In 2001, guidance was issued to aid campuses in both defining and responding to sexual harassment.[3] These initiatives were further developed during the Obama Administration. The 2011 Dear Colleague Letter (DCL) expanded the scope of Title IX to include sexual violence alongside sexual harassment, while also noting that sexual harassment “may also violate Title IV”.[4] In 2014, a Q&A Document from the Education Department clarified the 2011 DCL, providing additional procedural requirements and outlining detailed reporting duties for higher education institutions.[5] This guidance implemented legal requirements that require colleges and universities to “play[] multiple roles regarding campus sexual violence, from prevention efforts to investigation and adjudication of alleged incidents of sexual misconduct.”[6]
Under the Trump Administration in 2017, the previous 2011 DCL and 2014 Q&A were replaced with new interim guidance for colleges regarding the handling of sexual misconduct cases.[7] This guidance was quickly followed by a new Title IX rule that was finalized and took effect in 2020.[8] The goal of the 2020 Title IX rule was to balance the rights of the complainant and the respondent by enacting provisions such as a narrowed definition of sexual harassment, live hearings with cross-examination, and a stricter standard of evidence option, aiming to change the handling of sexual misconduct cases on campuses.[9] The rule received hundreds of thousands of comments during the proposal phase, many of which expressed opposition.[10] Under the Biden Administration, the long-promised release of a new proposed rule for Title IX was published for comment in July 2022.[11] Since its release, the proposed rule has faced continuous delays in the finalization process.[12] The impacts of the still-in-place 2020 rules have been evident nationwide, affecting every college campus.
a. Title IX Since 2020
The 2020 rule introduced by the Trump Administration brought significant changes to the procedures, definitions, and evidentiary standards governing sexual misconduct cases on college campuses. The stated goal according to the Department of Education was to “rebalance the scales of justice” by ensuring due process for both the accused and accuser.[13] To achieve this rebalancing, a new requirement mandated colleges to conduct live hearings and “allow[] students’ advisers to cross-examine parties and witnesses involved,”[14] and to replace the “single investigator model” with a system requiring three officials to handle different aspects of the case.[15] Consequently, the role of the Title IX coordinator—to oversee the implementation of new policies and procedures—gained importance.
The 2020 rule also imposed a higher burden of proof for determining guilt in sexual misconduct cases.[16] Unlike the previous “preponderance of the evidence” standard, the new rule adopted a “clear and convincing” burden of proof.[17] Those in support of a “clear and convincing burden of proof” argued that due to the gravity of these cases, a higher standard was needed as there are severe consequences such as “the loss of a college degree, the end of a professional career and reputational harm lasting a lifetime.”[18] Advocates for the preponderance standard argue that it ensures a fair chance for both parties to present their cases without placing an undue burden on the complainant, as commonly used in other civil claims in state and federal courts.[19]
Moreover, the 2020 rule narrowed the definition of sexual harassment as compared to the 2011 DCL. While the 2011 DCL definition considered sexual harassment as “unwelcomed conduct of a sexual nature”, the new definition characterizes it as conduct that is “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.”[20] This definition aligns more closely with the standard used by the Supreme Court in sexual harassment cases under Title VII, that is, “severe or pervasive” conduct, yet it is still narrower.[21] This adjustment aims to eliminate confusion and ensure consistency with the leading case, Davis v. Monroe County Board of Education.[22] One last significant change is that colleges are no longer obligated to handle sexual assault cases that happen off-campus.[23]
III. ANALYSIS
The 2020 rule has faced significant backlash and legal opposition since its proposal and subsequent enactment. In 2020, over seventeen states initiated a federal lawsuit to challenge the rule, contending that its enforcement would diminish protections against sexual harassment for students nationwide.[24] The critics argued that allowing the rule to take effect would “reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education.”[25] Another major case, Know Your IX v. DeVos, quickly followed the states’ lawsuit. It contended that the changes weaken protections for survivors of sexual harassment and assault.[26] The ACLU also raised substantial objections to the provision allowing campuses not to address off-campus sexual assaults.[27] While the final rule is in place, it continues to face widespread opposition.[28]
Many perceive this new rule as exacerbating the difficulty for survivors to come forward and pursue, a significant concern given that “over 90% of sexual violence on college campuses in the U.S. go unreported.”[29] Despite vocal complaints and advocacy for change, as of 2024, there is still no updated final rule from the Biden Administration.
During the Obama Administration, then-Vice President Biden played a substantial role in formulating Title IX revisions and issuing the 2011 DCL and 2014 guidance.[30] During his presidential campaign, President Biden made promises to quickly take action to advocate for and uphold survivors’ rights.[31] The Biden Administration’s 2022 proposed rule is aiming to revert the state of Title IX rules and regulations back to their Obama Administration state.[32] This includes broadening the definition of sexual harassment, restricting live cross-examination, and allowing off-campus investigations.[33] While these proposed provisions align with the initial promise to strengthen student protections, concerns are heightened as we approach the reelection period, with the proposed rules having been postponed since 2022.[34] The department has set and missed several deadlines for both the draft and final version of the regulation in 2022 and 2023.[35] Along with needing evaluation from different Offices, [36] the rule must also address the large number of public comments.[37]
While there is currently no finalized rule addressing the key issues faced by campuses and survivors and not all these issues are addressed in the proposed rule, there are still numerous steps that can be taken to support and strengthen survivors without compromising due process rights. It is clear from tracking developments in Title IX over the last decade that administrative shifts can vary in results and goals. Universities therefore need to shape their policies beyond mere adherence to final rules. Colleges have the option to determine a standard of proof for their claims, provided it is consistently applied.[38] Consequently, a college should opt for a standard that ensures equal chances for all parties involved. Maintaining the lower standard of “preponderance of the evidence” would be a viable option, especially considering the currently mandated hearings that provide an equitable platform for both sides to present their arguments.
One significant challenge for survivors under the Trump Administration’s rule is understanding their legal rights.[39] However, addressing this issue does not necessarily require regulatory rule changes. As demonstrated by the Campus SaVE Act,[40] knowledge of options and resources is crucial to survivors. This Act has deemed it necessary to provide accommodations, educational and awareness programs, and access to resources.[41] Education and advocacy initiatives can significantly contribute to supporting survivors throughout this process by continuing to establish and endorse individual advocates and educational programs for those affected. Colleges also need to empower survivors to report incidents by helping them better understand the procedural aspects of bringing sexual assault claims. Recently, institutions of higher education, such as Pennsylvania State University, have been awarded grants to support initiatives for education and survivor support.[42] This funding is meant to be used to implement strategies such as to improving awareness and reporting as well as “remove or reduce barriers that prevent survivors of sexual violence from reporting incidents or accessing vital resources.”[43] In essence, examples, such as the Campus SaVE Act and grant awards, underscore the importance of education, advocacy, and support initiatives, irrespective of regulatory shifts like those within Title IX.
IV. CONCLUSION
The revision of Title IX to incorporate necessary changes is anticipated to be a topic in the upcoming election.[44] The complex landscape of Title IX regulations for sexual misconduct, spanning across various administrations and policy shifts, is highlighted by the challenges faced by campuses and survivors.[45] While the 2020 rule introduced changes aimed at balancing due process, it has faced criticisms and legal challenges for potentially compromising the protection of survivors.[46] The proposed rule under the Biden Administration holds the promise of revisiting and potentially amending the rules to align more closely with previous guidelines.[47] As campuses navigate this evolving regulatory environment, prioritizing a balanced approach that upholds due process while fostering a supportive environment for survivors is crucial.[48]
Footnotes:
[1] Franklin v. Gwinnett County Public Schools, 502 U.S. 60 (1992); Title IX & Sexual Assault Prevention and Response, NASPA, https://perma.cc/7WEX-8CNW.
[2] Title IX protects people from discrimination based on sex in educational programs, meaning schools and institutions that receive federal funding. Title IX, Education Amendments of 1972, 20 U.S.C. §§ 1681-1688.
[3] Id.
[4] Office for Civil Rights, Dear Colleague Letter from Assistant Secretary for Civil Rights Russlynn Ali, U.S. Dep’t Educ. (Apr. 4, 2011), available at https://perma.cc/ERX2-WFPY.
[5] Jeremy Bauer-Wolf, A look at 12 years of Title IX policy, Higher Ed. Dive (May 17, 2022), https://perma.cc/G6M7-9GFG.
[6] Title IX & Sexual Assault Prevention and Response, NASPA https://perma.cc/M3P3-MYZ2.
[7] Bauer-Wolf, A look at 12 years of Title IX policy, supra note 5.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Jeremy Bauer-Wolf, 2 final Title IX regulations will likely be delayed – again, Higher Ed. Dive (Jan. 19, 2024), https://perma.cc/84ER-AUCE.
[13] Greta Anderson, U.S. Publishes New Regulations on Campus Sexual Assault, Inside Higher Ed. (May 6, 2020), https://perma.cc/V8F5-X2YQ.
[14] Id.
[15] Id. (detailing that the three roles are “Title IX coordinator, who receives reports of sexual misconduct; an investigator, to gather facts and interview parties and witnesses; and a decision maker, to determine sanctions and remedies for parties. . .”).
[16] Anderson, supra note 13.
[17] Id. Notably, the preponderance of the evidence standard requires a burden of “more likely than not” to be met.
[18] The Proposed Title IX Regulations on Evidentiary Burdens of Proof, Reavis Page Jump LLP (Feb. 13, 2020), https://perma.cc/MW23-XSX9 (quoting Blair A. Baker, When Campus Sexual Misconduct Policies Violate Due Process Rights, 26 Cornell J. L. & Pub. Pol. 533, 560 (2017)).
[19] Id. “Only a small percentage, between four and eight percent, of persons who experience sexual assault in college report it to campus authorities, and only about two percent report it to the police. A common reason for not reporting is the fear of not being able to prove what happened and of not being believed. Fighting the Rape Culture Wars Through the Preponderance of Evidence Standard,” 78 Mont. L. Rev. 111 (Winter 2017).
[20] Title IX – Will Everything Old Be New Again?, Fisher Phillips (June 1, 2021), https://perma.cc/87KT-8TFM; Anderson, supra note 13.
[21] Courts apply Harris v. Forklift Systems, Inc. to determine if conduct is severe or pervasive using the instructions: “consider ‘all the circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Sexual Harassment and Title VII: Selected Legal Issues, EveryCRSReport.com (April 9, 2018), https://perma.cc/9JRR-A5D7.
[22] See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999) (concluding that “an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”); see also Title IX – Will Everything Old Be New Again?, supra note 20; Anderson, supra note 13.
[23] David Cole, The Absurd Attacks on the ACLU, ACLU (May 21, 2020), https://perma.cc/2LSR-U2QD.
[24] Pennsylvania v. DeVos, 48 F.Supp.3d 47 (D. D.C. 2020); Naaz Modan, 17 states, DC challenge new Title IX regulations’ impact on schools, K-12 DIVE (June 5, 2020), https://perma.cc/Q4Y3-453Y.
[25] Greta Anderson, Attorneys General Sue DeVos, Education Department Over Title IX Rule, Inside Higher Ed. (Jun. 4, 2020), https://perma.cc/8RPX-DHTW.
[26] KNOW YOUR IX, ACLU (May 22, 2020), https://perma.cc/9BF4-YAHS.
[27] Id. The ACLU’s case against DeVos was dismissed by the federal judge. Know Your IX v. Devos, No. 20-01224, 2020 WL 6150935 (D. Md. Oct. 20, 2020).
[28] Tyler Kingkade, Biden Admin Proposes Sweeping Changes to Title IX to Undo Trump-era Rules, NBC News (June 23, 2022), https://perma.cc/F4CV-U76V.
[29] Nicole Bedera, Trump’s New Rule Governing College Sex Assault Is Nearly Impossible for Survivors to Use. That’s the Point, TIME (May 14, 2020), https://perma.cc/W2UF-HSK7.
[30] Office of the Vice President, Vice President Biden Announces Strengthening of Title IX, The White House (Apr. 20, 2010), https://perma.cc/CB5C-CLJE.
[31] Kate McQuarrie, Trump’s changes to Title IX are still impacting college survivors, Daily Trojan (Apr. 18, 2023), https://perma.cc/76ZS-UM92.
[32] Tyler Kingkade, supra note 28.
[33] Id.
[34] Brooke Migdon, Biden administration punts deadline for updated Title IX regulations to March, The Hill (Dec. 7, 2023), https://perma.cc/4MWL-TWMS.
[35] Bauer-Wolf, 2 final Title IX regulations will likely be delayed – again, supra note 12.
[36] Id. The rule has not yet went through the necessary procedural hurdles like, for instance, being subject to review by the Office of Management and Budget, which alone could take up to 120 days to evaluate.
[37] The Department has stated the rule will be issued in March but is more likely to be postponed until May or June of 2024. Id. See also Katherine Knott, New Title IX Regulations Pushed to March, Inside Higher Ed. (Dec. 8, 2023), https://perma.cc/43RY-YB59 (recanting that “[t]he department received more than 240,000 comments on its proposed Title IX rules”).
[38] See 34 C.F.R. § 106.45(b)(1)(vii) (2020) (directing that a grievance process must “[s]tate whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment . . .”).
[39] McQuarrie, supra note 29.
[40] The Campus Sexual Violence Elimination Act (Campus SaVE Act) amends Title IV of the Higher Education Act of 1965. It requires institutions of higher education’s (IHE) policy’s to include “(1) education that promotes awareness of the offenses; (2) possible sanctions or protective measures imposed following disciplinary action; (3) procedures victims should follow after such an offense occurs; (4) information about to whom the alleged offense should be reported; (5) institutional disciplinary procedures; and (6) the notification of victims regarding their options for, and assistance in, changing academic, living, transportation, and working situations.” Campus Sexual Violence Elimination Act, H.R. 2016, 112th Cong. (2011).
[41] See Campus SaVE Act, RAINN (2013), https://perma.cc/Y9QR-E7JJ.
[42] Pennsylvania State University, along with 37 IHEs and postsecondary schools, have been awarded a total of $1.4 million to support the “It’s On Us PA” campaign. Penn State was awarded $60,000. Shapiro Administration Awards More Than $1.4 Million In It’s On Us PA Grants, PA.Gov (January 22, 2024), https://perma.cc/64EW-VV8T.
[43] “The grants provide funding from January 2024 through May 2025 to implement strategies on campuses to address goals of the It’s On Us PA campaign.” Id.
[44] See supra Part III.
[45] See supra Parts II and III.
[46] See supra Parts II and III.
[47] See supra Part III.
[48] See supra Part III.
About the Author:
Megan Bozzer is a second-year J.D. candidate at Penn State Law. Originally from Indiana, Pennsylvania, Megan graduated summa cum laude from the Slippery Rock Honors College at Slippery Rock University with a degree in Economics. Before attending law school, Megan interned at the Indiana County District Attorney’s office, and, more recently, with the legal department at Westinghouse Electric Company. Currently, Megan serves as the President of Penn State Law’s Corporate Law Society and as the Outreach Coordinator for the Women’s Law Caucus. Additionally, she dedicates her time as a clinician with Penn State’s Entrepreneur Assistance Clinic.
Suggested Citation: Megan Bozzer, Title IX’s Recent Impact on Campus Sexual Assault Policies and Procedures, Penn St. L. Rev.: F. Blog (Apr. 15, 2024), https://www.pennstatelawreview.org/the-forum/title-ixs-recent-impact-on-campus-sexual-assault-policies-and-procedures/.