The Problem With Title IX and Why It Matters

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The epidemic of sexual assault on college campuses and the often-shockingly inept manner in which universities handle allegations are much-discussed—and rightly so. But while the practices of specific institutions are often inspected in minute detail, the policy that currently regulates how universities deal with assault on a general level has escaped the critical commentary it deserves. Title IX, put in place 40 years ago to ensure greater equality of the sexes in the workplace, has served a noble purpose, but its particular role in determining how colleges adjudicate assault needs to be reexamined.

While Title IX is a great law for establishing systemic equality for women, especially in the workplace and in educational institutions, there are some flaws in it as a federal sexual assault policy. The first and most obvious is that it establishes a lesser burden of proof for institutional investigations of sexual assault than for criminal investigations. Title IX specifically stipulates that a school needs to address the “hostile environment” caused by an assault, as outlined in the now-famous “Dear Colleague” letter sent by the Office for Civil Rights in the U.S. Department of Education: “Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.” These broad provisions render Title IX as a law that has the potential to allow individual institutions to dispense punishments too liberally according to their discretion, and this may violates our legal system’s oldest principles: innocent until proven guilty and due process. Since it promotes a culture of double standards and injustice in tragic, delicate, and extremely serious cases, federal sexual assault policy desperately needs an overhauling.

When Title IX was established as law in 1972, the American workplace was a different place for women. It was not far off the mark of the treatment depicted in the popular television show Mad Men; women were regularly catcalled, harassed, and belittled in the office because of their gender. They had few sports options in public schools and faced discrimination in college when choosing majors. Title IX provided a legally-mandated remedy to these problems, and continues to serve many of its original purposes well to this day. However, its policies regarding sexual assault and harassment seem a bit unclear on further parsing.

Title IX applies to schools as institutions. The school must take action under the law if sexual violence creates a hostile environment for the student, defined vaguely as an environment in which it is impossible for the assaulted student to carry on with daily life in his or her normal manner. The school then must take steps to eliminate the hostile environment, including ensuring that the assaulted student is not in any classes or living spaces with the alleged assaulter, or forcing the assaulter to take a leave of absence from the school after a school investigation finds him or her guilty. Each school must have a Title IX coordinator to inform students of Title IX sexual violence policy, and each school must also have an impartial body to examine evidence if a student files a Title IX complaint of assault. The standard of evidence for Title IX sexual assault cases in schools is preponderance; that is, a majority of the evidence needs to indicate that the violence happened. This supposedly makes it easier for victims to receive the help they need from schools, as opposed to under the stricter standards in the criminal justice system.

The criminal codes regarding sexual violence in American states differ from Title IX’s in important ways. In order to convict the accused of a criminal sexual assault, one must prove beyond a reasonable doubt that the assault occurred. Some argue that this makes sexual assault convictions nearly impossible, but the standard of evidence and penalties are standard for extreme crimes. The standard of evidence used in the criminal system is predicated on one of the original founding principles of all legal theory: that all the accused are assumed innocent until proven guilty, no matter how morally reprehensible the charged offense, because it is vital that one is absolutely sure that a person is guilty before he or she is punished for a crime. This is a basic principle of justice in an ideally fair system, and should not be thrown out the window when it is convenient to do so.

Title IX gives schools much more leeway in determining punishments than criminal codes give state legal systems, and the evidence standard is also very different for the two policies. This is generally justified in the legal field by the doctrine that the punishment in the criminal justice system is much more severe than that dispensed by the school. Since the Title IX punishment is generally year-long suspension, this is considered fair.

The main problem with Title IX, then, is that it does not treat sexual violence as seriously as the justice system does. It should not leave the investigation process and punishment to the schools’ discretion. Recent events have shown how problematic that is in practice. Headlines across the country in the last six months, including some about Princeton itself and nearly every other elite institution, have told tragic tales of victims whose cases were ignored or whose attackers were found guilty but merely suspended for a year and then allowed to return to the school. Victims have felt that they are not sufficiently supported psychologically by their schools, and they have felt uncomfortable even reporting their assaults. There needs to be a policy change in Title IX, because Title IX works for no one as it is.

The standard of evidence needs to be raised to be on par with that of the criminal justice system, but conversely, the punishments need to be clearly outlined and more severe, as befits the seriousness of sexual violence. The investigatory process needs to be comprehensive, and a higher standard of evidence should be used as it is in the real world. With a higher standard of evidence should come a more considerable punishment. Expulsion is the penalty at many schools, including Princeton, for cheating; it should be the penalty for sexual violence as well.

Many people would object to the system just proposed on the grounds that sexual harassment and assault cases are notoriously difficult to prove in the criminal justice system, and introducing the same standards to Title IX policy would only hurt the people the law aims to help. To remedy this problem, the law should also be revised to require that schools take action to create a safe environment for plaintiffs even if the accused is not found guilty. Schools could ensure that the two parties are not enrolled in the same classes and that they do not live near one another as long as they live on campus. The plaintiff, in this case, should be informed that this is an option and should be allowed to exercise it even if the school does not find sufficient evidence that there was harassment or assault under Title IX. The creation of the “safe environment” would not appear anywhere in the accused student’s records if he or she is not found guilty, but it would simply provide Title IX plaintiff with an extra sense of security in the case that the accused student does fall through the procedural cracks. And the creation of this environment would make the process of reporting and investigating an assault more appealing for victims and feasible for investigators, increasing the number of rightful convictions.

Another serious concern raised by Title IX is its creation of committees who enforce its regulation often with little oversight or structural guidelines for how they exercise their power. Being convicted of assault on campus is a very serious matter, one that haunts a student for the rest of his or her life. The governing bodies in charge of investigating incidents need to be better guided so that they can appropriately deliberate and have their decisions be reviewed if they decide dubiously. This is why standardized procedural guidelines are necessary for the decision-making bodies necessitated by Title IX’s provisions. Additionally, the law also needs to establish clearer guidelines for education about sexual harassment and sexual assault as provided by schools. Many schools have notoriously unclear and insufficient educational programs on this front, and it is imperative that all students, who are living under the policy, be made aware of what it entails, what sexual assault and harassment are, what their options are in case of a Title IX violation, and how to prevent assaults and harassment as bystanders.

It has been over forty years since Title IX was signed into U.S. federal law, and times have changed. Consequentially, Title IX also needs to be reformed to serve the needs of women and society today. It needs to impose both a higher standard of evidence and more severe consequences for sexual harassment and especially assault, to better parallel penalties found in the real world, uphold the traditional American belief that the accused are innocent until proven guilty, and treat these problems with the seriousness that they deserve.

This can be achieved with simple revisions to the law. There should be stricter guidelines on investigatory boards and committees regarding their composition, so the investigatory bodies appointed by schools do not favor one side or the other in any given case. Students who are accused of assault and found guilty beyond a reasonable doubt should be expelled and turned over to the authorities if the victim decides to pursue matters in the criminal justice system. Victims should also be fully informed of their options after an assault, and schools should be required to actively encourage reporting assaults and seeking medical examination afterwards.

These revisions would finally address sexual assault under Title IX with the same gravity as it is addressed in the criminal system. As long as women feel unsafe and uncomfortable with coming forward about assault on campus, and as long as committees are perceived as being unfair to one party or another, the environment in schools and the United States in general will remain unhealthy. However, if federal sexual assault policy attains uniformity no matter where the assault takes place and is fair, the situation will improve, and everyone in the country will benefit. There is no reason that rapists should be allowed to remain on school campuses and not rot in jail, and there is no reason to jump to conclusions about such a serious matter either. Title IX needs to be revised to reflect the reality of sexual assault, so it can become the solution to the problem and not just another problem in a flawed system.

Valerie Wilson is a freshman from Cherry Hill, New Jersey. She can be reached at vkwilson@princeton.edu

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