The Department Of Education’s Work On Sexual Assault Is Under Attack

Protesters stand in solidarity with rape victims on the campus of Brigham Young University during a sexual assault awareness demonstration Wednesday, April 20, 2016, in Provo, Utah. CREDIT: AP/RICK BOWMER
Protesters stand in solidarity with rape victims on the campus of Brigham Young University during a sexual assault awareness demonstration Wednesday, April 20, 2016, in Provo, Utah. CREDIT: AP/RICK BOWMER

Over the past several years, Title IX — the federal statute that protects students from gender-based harassment — has become an important tool for campus activists to hold their colleges accountable when it comes to the way administrators are responding to cases of sexual assault and harassment.

The U.S. Department of Education’s Office of Civil Rights currently has 246 open investigations into 195 colleges and universities to examine the way they have handled sexual assault cases brought by students.

But Republican lawmakers and universities have long been critical of this aspect of Title IX enforcement, saying that the government is overstepping its authority on college campuses.

Most of these criticisms have been overblown. But new developments in a case regarding how Title IX should be interpreted regarding the rights of transgender students turns the opposition into more than hot air. Now, the U.S. Department of Education’s ability to enforce this law might be called into question in a real way.

Last week, a federal judge in Texas issued a preliminary injunction that blocks the Department of Education from acting on its guidance to schools that requires trans students to have access to the bathroom and locker rooms that match their gender. Judge Reed O’Connor said that the department violated the terms of the federal Administrative Procedure Act by not giving public comment and notice before — the same argument that critics are making about the department’s sexual assault guidance.

That leads legal experts to wonder whether this argument could affect the department’s efforts to investigate universities procedures for handling sexual assault complaints.

Why critics are unhappy with the way Title IX is used

A renewed debate over the disciplinary process for Title IX complaints began shortly after the agency released a Dear Colleague letter in 2011 providing some guidance to universities on how to handle these complaints appropriately.

In the letter, the department made it clear that colleges should use a standard known as “preponderance of the evidence” — which means the disciplinary panel would make a decision based on which party’s evidence has greater weight, rather than needing “clear and convincing evidence” to prove someone is guilty. The first standard is used in civil cases while the second standard is used in criminal cases.

The American Association of University Professors opposed use of the preponderance of evidence standard and said more evidence should be required. Although previous letters didn’t specify the use of this standard, defenders of the letter say this has always been the standard for issues involving civil rights on college campuses.

In January, Oklahoma Sen. James Lankford (R) wrote that the department’s letters went further than interpret existing law — and instead made new law without going through the notice and public comment period required by the Administrative Procedure Act.

Universities and their representatives have also claimed that the 2011 letter contributes to a climate of uncertainty, even though the purpose behind the letter was to clarify a university’s obligations.

“In trying to better deal with allegations of sexual assault on campus, a lot of schools would probably try different approaches and consider different things, but a fear of vague federal mandates limits these efforts. They are hamstrung by uncertainty,” Terry W. Hartle, senior vice president for government relations and public affairs at the American Council on Education, told Inside Higher Education.

Why these concerns are misplaced

There is no reason why the preponderance of evidence standard shouldn’t fully protect both the complainant and the accused, said Alyssa Peterson, policy and advocacy coordinator for Know Your Title IX, a group that does education and advocacy work on issues of campus sexual assault.

“The Dear Colleague letter offers many protections that students are constitutionally entitled to. They have to have notice of a hearing, they have to present evidence, they’re allowed to question witnesses through a third party. We’re not opposed to those protections being expanded … To focus on accused students rights without acknowledging how survivors feel in a system that is stacked against them is in many ways is inappropriate,” Peterson said.

One misconception about the handling of sexual assault cases is that universities must all use the idea of affirmative consent, which is seeking an enthusiastic yes before having sex, to determine whether a student has encountered a hostile environment on campus, which includes a range of actions that fall under the topic of sexual harassment. Although states are embracing the idea, the department actually uses the welcomeness standard, which Peterson said covers the nature of power imbalances and how they influence the ability to get consent from a person. That standard has been widely used in sexual harassment cases since the 1990s.

“You had a long time to figure this out.”

“Affirmative consent can break down where one party has power over another party, and they badger them and they say ‘Yes,’ and that person says ‘Oh I got a verbal yes, so I can now have sex with this person’ even though there’s a severe power imbalance and even though that person did not welcome their conduct,” Peterson said.

Peterson also doesn’t buy the idea that universities are confused about how to handle sexual harassment complaints because guidance on how to handle these cases without violating Title IX has existed since the 1990s and the education department, as well as the U.S. Department of Justice, have dedicated a lot of resources to educating universities. The department of justice went on a “campus tour” to educate colleges on the issue and it provides grants to schools, which are authorized by the Violence Against Women Act, to provide better services for sexual assault survivors.

“If you go to whitehouse.gov, there are literally policies written that schools can just take,” Peterson said. “So I’m less than sympathetic in part because the students have a pretty strong idea of what their legal rights are, and then they’ve been literally handed written policies from the federal government, which I think is pretty unheard of on an issue, and Title IX has been interpreted to cover sexual harassment since the 1990s, so it’s been a long time. So when they say they’re really confused it’s like, you had a long time to figure this out.”

Why professors argue Title IX guidance is just use of civil rights law

Law professors and experts on Title IX argue that the agency’s actions are not very different from other agencies’ interpretation of rules — and that it is impractical to expect people’s civil rights to be addressed swiftly and appropriately when Congress doesn’t acknowledge its role in delegating its power to agencies after laws pass.

“This is an ordinary thing that is used by other enforcement agencies across the government and enforcement would fall apart, frankly, if agencies could not do this,” said Michele Landis Dauber, a law professor at Stanford University. “So the real question in my mind about this is, ‘Why is it being so politicized given the fact that it is an ordinary part of the executive branch?’”

“It is about women’s equality, basically. And the Office for Civil Rights has become a lightening rod.”

Landis Dauber, at least, has a pretty good guess about how to answer to that question. “I think the reason is because it is about women’s equality, basically,” she said. “And the Office for Civil Rights has become a lightening rod, unfortunately.”

Title IX has existed since 1972. The department issued new guidance regarding how Title IX relates to sexual assault cases in 1997 and 2001, providing comment periods on the issue each time. Although there hasn’t been another one since, it is debatable — and requires going into mostly academic conversations about the aging of statutes and rules — whether there is a time period that is appropriate for revisiting these rules, law professors say.

In a white paper on the department’s 2011 guidance, several law professors noted it’s simply inaccurate to suggest that the legal standard used for disciplinary proceedings on sexual assault complaints was forced upon colleges that year. In fact, the “preponderance of the evidence” standard existed way before the 2011 letter.

Furthermore, universities use the same standard in complaints of racial discrimination on campus, and don’t seem particularly concerned about using it in that context. Treating sexual harassment and assault issues differently than other civil rights complaints would be discriminatory, the law professors argued.

The professors also wrote that the purpose of the relationship of the school disciplinary proceedings to students and the criminal justice system’s relationship to those accused of a crime are very different in nature. The most the school can do is expel the student, which rarely happens, and even when it does, students can and do simply transfer to another college. This worst case scenario can’t be compared to prison, the authors write. In the criminal justice system, those accused are supposed to have the greatest rights, but in the context of civil rights issues, the ability for the alleged victim to live a full and productive life is as important as the accused’s quality of life.

What could happen next for Title IX

Texas Tech freshman Regan Elder helps drape a bed sheet with the message “ No means No,” over the university’s seal on the Lubbock campus on Wednesday, Oct. 1, 2014. CREDIT: AP/BETSY BLANEY
Texas Tech freshman Regan Elder helps drape a bed sheet with the message “ No means No,” over the university’s seal on the Lubbock campus on Wednesday, Oct. 1, 2014. CREDIT: AP/BETSY BLANEY

Still, the Texas federal judge’s injunction against the Justice Department and Education Department’s guidance on transgender students could end up being a model for those who want to argue Title IX is rulemaking not an interpretation of existing law, according to Charlton Copeland, professor of law at the University of Miami School of Law.

“[They could argue] that in some sense that this is an inappropriate use of agencies and their expertise, and on some level you might also suggest that these are not appropriate questions for administrative agencies altogether. I didn’t see that argument in the Texas case, but there were hints of that argument,” Copeland said.

“This is a case will likely be a model.”

Copeland pointed out that the in the complaint, lawyers argued the guidance on transgender students represents a “radical change in the definition of sex,” and are arguing that it is a “major question.” In the 2000 U.S. Supreme Court case, FDA v. Brown & Williamson Tobacco Corp, Justice Sandra Day O’Connor said the FDA did not have the power to regulate tobacco products and that the government couldn’t assume the FDA had the authority to “opine” by unilaterally deciding to regulate tobacco.

However, it’s possible this argument wouldn’t work on Title IX guidance on handling sexual harassment cases, Copeland said.

“I think Texas injunction issue is a cleaner issue than the campus sexual assault issue. Because the campus sexual assault issue sounds much more bureaucratic — asking ‘What are the proper procedures?’ — than this fundamental reorientation of and expansion of what sex means in Title IX. This is a case will likely be a model, but I think this is a case that may prove sufficiently different that we are able to distinguish it,” Copeland said.

These administrative law issues, as wonky as they may be, could have real life consequences for people most empowered by civil rights laws. Agencies are entrusted to interpret laws, many of them decades old, as the issues at hand change and groups affected by them change dramatically. The Office of Civil Rights appears to be at the epicenter of this debate, given its role in protecting the most disadvantaged populations in the country.