In June 1972, Richard Nixon signed into law a series of educational amendments, the most well-known of which is Title IX, prohibiting educational institutions that receive federal funding from discriminating on the basis of sex. This opened the doors of educational opportunity and participation in intercollegiate athletics for women.
Initially, the law’s original purpose focused on what happens in the classroom. Eventually, sports became an issue within Title IX, when Gerald Ford signed a law concerning discrimination in athletics in 1975. Intercollegiate sports dominated the Title IX debate until 2011, when sexual harassment became the most pressing issue. During the Obama administration, the Office for Civil Rights (OCR, within the Department of Education) announced detailed rules pertaining to sexual harassment, launching a plethora of well-publicized investigations, some of which have been ongoing for years. In its nearly 50 years of existence, Title IX has continued to move away from eliminating institutional barriers to educational opportunity for women and girls, and toward issues concerning sex differences and gender roles as demonstrated by the bathroom debates of 2016.
OCR regulation of athletics and sexual harassment took years to develop. Conversely, the transgender issue concerning the use of sex-segregated facilities emerged rapidly. The 1975 regulations authorize schools to provide separate bathrooms, showers, housing, and sports teams for males and females. In 2016 the OCR issued a Dear Colleague Letter (DCL) on transgender rights. It obligated schools to allocate access to segregated facilities on the basis of students’ gender identity rather than their biological sex.
The current administration quickly revoked the DCL on transgender rights. Within a few months, Education Secretary Betsy DeVos withdrew the Obama administration’s guidelines on sexual harassment. DeVos announced, “the era of rule by letter is over,” promising to initiate a full rulemaking process on the subject.
DeVos has had a heavily criticized track record over the years which includes cutting funding to the Department of Education and public schooling, repealing federal regulations on for-profit colleges, and calling Historically Black Colleges and Universities “pioneers when it comes to school choice.” It should be noted that HBCUs were founded on a lack of choices for prospective Black students. Now in her third year, DeVos has announced the new regulations for Title IX.
The new regulations adopt the Supreme Court’s definition of sexual harassment as “unwelcome conduct that is so severe, pervasive and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Colleges are required to hold live hearings during which accusers and accused can be cross-examined to challenge their credibility. Schools are also limited in their obligation to investigate complaints to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action, eliminating the option of reporting an incident to a residential advisor. Schools will also have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct-“preponderance of evidence” or “clear and convincing evidence.”
The 2000 page document emphasizes “equitable” treatment and the presumption of innocence. The rules mandate that schools dismiss complaints that do not meet the sexual harassment definition even if the accusations are proven true. Accused students are to be given written assurance that they are presumed innocent. Schools would not be able to impose any disciplinary actions on students accused of misconduct until the end of the case. However, students can still be removed from campus if they are found to pose a risk. Former secretaries of education, Arne Duncan and John B. King Jr., said in a joint statement that the rules were “part of an egregiously troubling pattern to continue to rollback civil rights for students, especially those most underserved.”
In its most recent revision, the Department of Education cleared colleges of any responsibility for sexual assault or misconduct that happens in study abroad programming or in off-campus or private settings, including releasing them from investigative obligation. Colleges are only required to look into off-campus misconduct if it occurs at a location or within an activity that they directly control or own, such as a fraternity or sorority house. These revisions come in the wake of New York and Massachusetts district court interpretations of the language in Title IX. Sexual assault prevention and victim advocacy groups say these new, looser regulations are the beginnings of a slippery slope, and have called the ruling “absurd” and “offensive”, and claim that they adulterate Title IX’s purpose.
These new regulations have already spurred landmark decisions about college sexual harassment, bathroom access and athletics department gender identity policies in states like Connecticut, which could have far-reaching implications for colleges nationwide.