The administration says that the proposed regulations will advance educational equity and opportunity for women and girls across the country to ensure that:
…every student in America, from kindergarten through a doctorate degree, can achieve her dreams.
It’s been quite a rollercoaster this. “Title IX” is an American federal civil rights law that was passed as part of the Education Amendments of 1972.
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.
It was originally used to ensure equal access for women to the sports programs of universities. But following sustained public pressure, in 2011 Obama’s US Department of Education’s Office for Civil Rights issued what is called a “Dear Colleague” letter that offered a fresh and significant interpretation of Title IX:
The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.”
That letter said that it is the responsibility of institutions of higher education “to take immediate and effective steps to end sexual harassment and sexual violence” and illustrated multiple examples of Title IX requirements.
It obligated universities to disclose all of the options and resources available to students who experience sexual misconduct, gave all students the right to due process, regulated the quality of investigations and required the standard of evidence in cases to be vased on a “preponderance of evidence” (what we could call a “balance of probabilities”) standard — meaning panels don’t need to be convinced that an incident occurred, only that it was more likely than not. There were also broad requirements on reporting designed to ensure that staff across a university that might become aware of harassment or misconduct report it.
Following complaints from accused students, under the Trump administration, Education Secretary Betsy De Vos issued a new “Dear Colleague” letter watering down various aspects of the expectations – for example confining the responsibility to address allegations to conduct on campus, and removing protection for transgender students’ rights under Title IX.
Now Biden’s Education Secretary Miguel Cardona has tightened them back up again, expanding the definition of sexual harassment to “all forms of sex-based harassment, including unwelcome sex-based conduct that creates a hostile environment by denying or limiting a person’s ability to participate in or benefit from a school’s education program or activity”, and adding a clutch of new requirements:
- Enshrining protections for sexual orientation and (controversially with some) gender identity, as well as “sex stereotypes, sex characteristics, [and] pregnancy or related conditions”
- No longer require live hearings and cross examination in investigations;
- Clarifying the protections that students and staff have from retaliation by their institution;
- Requiring universities to confront off-campus conduct that “creates or contributes to a hostile environment”
- Requiring some staff members to notify a university’s Title IX office of possible sex discrimination – a return to broader mandatory reporting requirements.
In England right now, the Office for Students (OfS) is reviewing the effectiveness of its currently voluntary statement of expectations on harassment and sexual misconudct, with ministers keen that the regulator finds a way to give the statement teeth over issues like NDAs. As it stands we’ve not seen the kind of Democrat/Pro Victim, Republican/Pro Accused split in our politics – but that surely is coming to our culture wars in the future.
Quite why OfS’ statement is so vague, and yet the US expectations manage to be so helpfully detailed, is a whole different question. What are the justifications for universities handling sexual assault allegations differently – market competition?!