Running

head: TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

Title IX: Sexual Harassment and Higher Education

Amanda D. Seals
Georgia Southern University

TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

Abstract
Often when referencing Title IX, the subject matter usually entails equity for women in
athletics. However, increased awareness campaigns have made it abundantly clear that Title IX
was amended to include equity regarding cases of sexual harassment. In 1972, Title IX passed
requiring gender equity for males and females in every educational program that receives federal
funding. As fewer cases are ending up in court and complaints are being more frequently filed
with federal governing agencies, colleges and universities, lawyers, students, policy writers and
lawmakers are all struggling with whom currently is the rule maker when it comes to Title IX
compliance.

TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

Analysis of Issue
Title IX: Sexual Harassment
When one in higher education hears the words Title IX, the immediate reaction is to
think of gender equity and intercollegiate sports for women. When the law passed in 1972, its
original intent was to prohibit discrimination in educational programs, as well as institutional
categories such military academies (Thelin, 2004, p.347). However, the law addresses much
more than athletics and educational programs. According Title IX (20 US.C.A. 1681-1688),
the following areas are addressed: Access to Higher Education, Career Education, Education for
Pregnant and Parenting Students, Employment, Learning Environment, Math and Science,
Sexual Harassment, Standardized Testing and Technology (History, (n.d.). According to the
advocacy Web site titleix.info, Title IX has been the subject of over 20 proposed amendments,
reviews, Supreme Court cases and other political actions (History, (n.d.).
Forty-two years later, the issue of sexual harassment on college campuses and Title IX
compliance find itself in the spotlight once again. On April 4, 2011, Vice President Joseph R.
Biden Jr. and United States Education Secretary Arne Duncan along with Russlynn Ali,
Assistant Secretary for Civil Rights, issued a Dear Colleague Letter to school districts and
institutions of higher education that receive federal funds outlining the background, summary
and fast facts regarding sexual violence. The U.S. Department of Education (ED) considered this
letter to be a significant guidance document that was designed to explain that the
requirements of Title IX cover sexual violence and to remind schools of their responsibilities to
take immediate and effective steps to respond to sexual violence in accordance with the
requirements of Title IX (Sieben, 2011).

TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

Whereas the Office of Civil Rights (OCR) had seen an increase in the number of sexual
assault reports, the need for clarification of Title IX laws, policies and guidelines were issued.
Recent data from the National Institute of Justice shows that one in five women and six percent
of men were victims of sexual assault or abuse in college. Analysis by the OCR showed that
institutions should consider such allegations under the "more likely than not" standard of
evidence, rather than the stricter "clear and convincing" standard that some entities now use
(Report, (n.d.).
In January 2014, President Barrack Obama commissioned the Task Force to Protect
Students from Sexual Assault. Co-chaired by the Vice President and the White House Council on
Women and Girls, it issued its first report in April of 2014. As a result of its report, the White
House mandated an even stronger set of guidelines to assist colleges with sexual violence
prevention and to respond to complaints.
Legal Oversight
In the ruling of Gebser v. Lago Vista Independent School District, the U.S. Supreme
Court established precedence by stressing explicitly sexual harassment can constitute
discrimination on the basis of sex under Title IX. The Office for Civil Rights (OCR), a division
of the ED, is responsible for monitoring compliance of Title IX and claims of abuse. In addition,
the Justice Department enforces Title IX by coordinating its enforcement across all federal
agencies, conducting its own and joint investigations with the ED. Title IX of the Education
Amendments of 1972, 20 U.S.C. 1681et seq., requires schools that receive federal financial
assistance to take necessary steps to prevent sexual assault on their campuses, and to respond
promptly and effectively when an assault is reported. Title IV of the 1964 Civil Rights Act, 42
U.S.C. 2000c et seq., also requires public schools to respond to sexual assaults committed

TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

against their students (Sieben, 2011). The Clery Act requires colleges and universities that
participate in federal financial aid programs to report annual statistics on crime, including sexual
assault and rape, on or near their campuses, and to develop and disseminate prevention policies
(Sexual Harassment Resources, (n.d.).
As the 2011 ED Dear Colleague Letter issued stricter sets of guidelines, the 2014 Task
Force Report strengthened them even more when it released a new set of draft regulations.
Colleges and universities continue to find themselves in a massive legal dilemma. As Kelderman
(2014) reported in his recent Chronicle article on Title IX compliance, every institution wants to
do right by their students, faculty and staff by investigating every allegation that is made to the
fullest. However, under the ever-evolving policies and guidelines of the OCR coupled with
massive amounts of compliance training, colleges and universities are finding themselves under
more scrutiny to enforce the demands of Title IX and are being held to a higher standard than
law enforcement (Kelderman, 2014). According to a recent article in The Chronicle of Higher
Education, since May 2014, over 60 college campuses have come under investigation by the
OCR for possible violations of Title IX by the way they handled investigations of sexual assault.
As the OCR rules on complaints, the various judgments are becoming blueprints for colleges
and universities to follow (Know Your IX, (n.d.).
With the risk of losing federal funding during a time of decreasing resources, colleges
and universities are struggling to find the financial means to meet the mandates of the new rules
and regulations. Reporting from the recent annual meeting of the National Association of
College and University Attorneys, Kelderman wrote:
Nearly all stressed that colleges want to protect students from sexual violence, and that it
is the right thing to do. But even as colleges work to do soand to meet the
administrative and legal requirements that now entailslawyers here expressed
frustration that their institutions were being held to a different standard than even law-

TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

enforcement agencies and were being given increasingly complex rules that sometimes
go well beyond their capacity.
Meanwhile, students and advocacy groups are making headway in educating college
campuses about the rights afforded to them under Title IX. Through advocacy Web sites
published by the White House to sites promoted by grassroots advocacy networks, the word is
spreading, and victims are taking to filing complaints with the OCR rather than turning to law
enforcement. According to the ED, the number of complaints received by OCR against colleges
involving alleged sexual violence has tripled since the office began keeping records of them,
from 11 in the 2009 fiscal year to 33 in just the first half of 2014 (Newman & Sander, 2014). The
OCR records also show that complaints of sexual harassment are a growing sector of all Title IX
complaints: almost 30 percent were reported during the 2012-13 academic year (Newman &
Sander, 2014).
Future of Title IX Compliance
With the recent focus on sexual harassment and Title IX from brokers as powerful as the
White House and the Vice President, there is much hope from student victims and advocacy
networks that Title IX compliance will take a turn in their favor. At the same time, the OCR is
feeling the same pinch as colleges and universities as its limited resources are stretched to handle
the increased demand for investigations. Colleges and universities are struggling to follow the
law under increased rules and regulations that demand legal attention and immediate resolution
even before the OCR has completed its investigation (Kelderman, 2014).
Although there had not been recent laws adopted by congress or new precedents set by
the court system, allegations against the acts by the Department of Justice and the OCR mounted
even before the Task Force met for the first time in 2014. In a June 2013 letter by Senator John
McCain, accusations flew from his pen:

TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

Without congressional authorization or even any formal agency rulemaking, Assistant

Attorney General Thomas Perez and a group of lawyers in DOJs Civil Rights Division
have single-handedly redefined the meaning of sexual harassment at all universities and
colleges across the country that receive public funding. Given that the interpretation of
Title IX has such a widespread impact on the well-being of young students, it is
troublesome that significant changes to nationwide sexual harassment policy were
unilaterally dictated by DOJ through a settlement rather than through congressional or
regulatory action.
Currently, it is unclear who will be the ultimate decision maker on how far Title IX
reform will go. One thing is for certain: students have learned about their rights under Title IX,
and efforts will continue to grow to ensure that colleges and universities comply with it.

TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

References
Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998). (1998, March 25). Gebser
v. Lago Vista Independent School Dist., 524 U.S. 274 (1998). Retrieved June 25, 2014,
from http://www.law.cornell.edu/supct/html/96-1866.ZS.html
History. (n.d.). TitleIX.info. Retrieved June 17, 2014, from
http://www.titleix.info/History/History-Overview.aspx
Kelderman, E. (2014, June 25). College Lawyers Confront a Thicket of Rules on Sexual
Assault. The Chronicle of Higher Education. Retrieved June 25, 2014, from
http://chronicle.com/article/College-Lawyers-Confront-a/147349/
Know Your IX. (n.d.). Know Your IX. Retrieved June 26, 2014, from http://knowyourix.org/
Letter from Senator John McCain to Attorney General Eric Holder. (2013, June 26). FIRE.
Retrieved June 26, 2014, from http://www.thefire.org/letter-from-senator-john-mccainto-attorney-general-eric-holder/
Newman, J., & Sander, L. (2014, April 30). Promise Unfulfilled?. The Chronicle of Higher
Education. Retrieved June 25, 2014, from http://chronicle.com/article/PromiseUnfulfilled-/146299/
Report. (n.d.). Not Alone: Together against sexual assault. Retrieved June 23, 2014, from
https://www.notalone.gov/assets/report.pdf
Thelin, J. R. (2004). A history of American higher education (Second Edition ed.). Baltimore:
Johns Hopkins University Press.
Sexual Harassment Resources. (n.d.). Laws & Guidance. Retrieved June 27, 2014, from
http://www2.ed.gov/about/ offices/list/ocr/docs/shguide.pdf.

TITLE IX: SEXUAL HARRASSMENT AND HIGHER EDUCATION

Sieben, L. (2011, April 4). Education Dept. Issues New Guidance for Sexual-Assault
Investigations. The Chronicle of Higher Education. Retrieved June 20, 2014, from
http://chronicle.com/article/Education-Dept-Issues-New/127004/