Michele Needham
Title IX. A lot of people think it is a relatively new law. Some people may have heard of it, but don’t know what it is. Some may think it is a retail store specializing in women’s sportswear and athletic apparel (Title Nine). And others may think it is solely about equity in men’s and women’s sports. In actuality, Title IX was enacted in 1972 as part of omnibus education legislation sponsored by Representative Edith Green from Oregon (who was known as Mrs. Education) and Senator Birch Evans Bayh, Jr. from Indiana.
Title IX of the Education Amendments Act of 1972 is a federal law that states: "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." Its original intended purpose was to provide open access to educational opportunities for women. There is no question that Title IX has been successful on this score. In a Department of Justice report published in June 2012 reviewing the first 40 years of Title IX, when the legislation was first proposed in 1970 only 8% of women were college graduates compared to 14% of men. Fast forward 40 years and approximately 30% of women hold a college degree compared to 31% of men. Women college graduates have since surpassed men. In 2018, according to Statista.com, 35.3% of women were college graduates compared to 34.6% of men.
How, you might ask, did athletics become the focus of Title IX? The regulations for Title IX were not issued until 1975 and were enforced at that time by the Department of Health, Education and Welfare. These original regulations are what established Title IX primarily for equity in athletics, including athletic scholarships. Athletics continued as the primary focus of Title IX until 2011, when sexual harassment became a daily report on the news due to the Penn State child sex abuse scandal.
The Department of Education (DOE) was established in 1980 and the primary oversight of Title IX was transferred to the DOE’s Office of Civil Rights (OCR). Although OCR issued a number of guidance measures in the form of “Dear Colleague Letters” in the 1990s, the guidance issued in 2011 became the new paradigm and colleges and universities were put on notice that OCR was serious about its interpretation that Title IX covered all forms of sexual harassment and sexual violence and that it applied to all students, including student-athletes.
Over time, the evolution of Title IX under OCR expanded into protections for pregnant and parenting students, and not just pregnant students in athletics, STEM, career education and standardized testing just to name a few. OCR also requires colleges and universities to designate a Title Coordinator and to follow proscribed procedures when conducting internal investigations.
There are a number of federal laws as well as an Illinois state law that are interrelated and govern the broader scope of colleges’ and universities’ responsibilities for preventing, investigating and mitigating sexual harassment and sexual violence. The 2013 Reauthorization of the Violence Against Women Act (VAWA), originally enacted in 1994 and reauthorized several times, improved and expanded legal tools and grant programs addressing domestic violence (introducing the term intimate partner), dating violence, sexual assault and stalking/cyberstalking. The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), originally enacted in 1990, requires colleges and universities participating in federal financial aid programs to maintain and disclose campus crime statistics and security information. The Campus Sexual Violence Elimination Act, known as the Campus SaVE Act, was an off-shoot of the Clery Act as a result of a 2009-2010 study that identified gaps in how colleges and universities, and the DOE, were protecting campus sexual assault survivors. The SaVE Act became incorporated into the VAWA Reauthorization of 2013 and expanded the existing requirements to include dating violence, domestic violence and stalking in addition to sexual assault.
At the state level, the Illinois Preventing Sexual Violence in Higher Education Act was signed into law in 2015 and became effective August 1, 2016. Much of this act’s requirements mirror Title IX and the Clery Act and place additional requirements on Illinois higher education institutions. Among other things, this state act requires colleges and universities to incorporate specific timeframes into their procedures, include a definition of consent in their policies that includes specific required components, publish specific information on their websites, conduct mandatory annual training for students and employees including training on bystander intervention, provide concise notification of survivor’s rights and options, and establish a campus-wide task force to work toward improving communication and collaboration between the colleges and community leaders and service providers. This state act also requires institutions of higher education to file an annual report with the Illinois Department of Human Rights.
This brings us to the present day. As if all of these federal and state laws did not cause enough confusion and consternation for the individuals charged with compliance for all of these laws that now all seem to “moosh” together (my technical term), in September 2017 Secretary of Education, Betsy DeVos, introduced proposed changes to Title IX regulations. While these proposed changes have caused a swirl of media coverage, mostly negative, not all of the proposed changes are bad. A number of the proposed changes will allow Waubonsee to continue several of its current practices and procedures including, but not limited to, providing basic due process protections for both the responding and reporting parties (complainant and respondent), the right to appeal by both parties and the presumption of innocence of the responding party, utilizing the preponderance of evidence standard and requiring that the decision-maker is separate from the investigator(s) to protect from bias and/or conflict of interest. The proposed changes also maintain the Title IX definition of sexual harassment (that harassment must be so severe, pervasive and objectively offensive that it deprives victims of access to and benefits of the institution’s educational opportunities) and adopt the Clery Act definition of sexual assault.
One of the proposed changes that Waubonsee views as beneficial to our current requirements and obligations is the provision that we would only be obligated and responsible to investigate conduct that occurs within the school’s own programs or activities. While this could include off-campus programs or activities for which the college is responsible, the college would no longer be responsible for all sexual harassment or sexual assault that involves Waubonsee students and occurs off-campus. This is a current requirement/obligation that causes untold challenges and complicating factors.
Conversely, one of the proposed changes that Waubonsee views as problematic is that parties would have the right for cross-examination, subject to “rape shield” protections. As proposed, this would occur as a live hearing through the parties’ advisors (not directly reporting party to responding party). The college believes that this live hearing would elevate the proceedings to appear as though they are a legal proceeding, which they are not. Internal investigations are not legal or criminal proceedings.
By now your head may be swirling and you may be thankful that you are not responsible for compliance for this conflagration of federal and state laws. Yes, there have been many changes that have occurred quickly and required fast action, and in some cases when laws have been in conflict with each other. However, you can rest assured that these laws are in place to protect students, and employees, from sexual harassment and sexual discrimination in any form so that they are not deprived of, and have equal access to, the benefits and opportunities of educational programs and services. Waubonsee Community College prohibits all acts of violence as outlined in the Illinois Preventing Sexual Violence in Higher Education Act, Title IX and the Violence Against Women Act (VAWA) and is committed to maintaining an environment in which all members of the college community are safe, secure and free from all forms of sexual misconduct (e.g., sexual assault, sexual violence, sexual harassment), relationship violence (e.g., dating and domestic violence) and stalking including cyberstalking. Waubonsee Community College stands ready to assist all students and employees who may be affected by these offenses that are illegal and will not be tolerated at the college. The college provides online and in-person prevention education programs for students and employees. Survivors of sexual misconduct are provided a copy of the Sexual Misconduct Prevention and Response Guide and can receive on-campus counseling and/or work with confidential advisors at Mutual Ground, Inc. of Aurora, Illinois. The campus community is encouraged to report violations and other concerns. Information on how to report, Title IX and additional resources can be found at https://www.waubonsee.edu/title-ix.
My best advice to parents and students considering colleges to attend should review a college’s annual disclosure report before deciding whether or not to attend.
