Ann Olivarius
Title IX was enacted in 1972 without controversy or even much debate, a "stealth law" aimed at helping women get through the doors of higher education, says Bernice R. Sandler, a longtime activist who is now a senior fellow at the Women's Research and Education Institute. But the law is now being interpreted to require colleges to investigate and resolve students' reports of rape, determining whether their classmates are responsible for assault and, if so, what the punishment should be. That is the case whether or not an alleged victim decides to report the incident to the police.
If colleges don't handle such reports promptly and fairly, they may be blamed for violating the rights of alleged victims and creating a hostile environment for learning, according to the U.S. Department of Education, which is charged with enforcing the law. In April the agency got specific about compliance in a 52-point Q&A, telling colleges how to conduct an investigation, including interviewing witnesses, examining evidence, and taking "interim measures to protect the complainant."
"Title IX is a pebble in a pond," says Brett A. Sokolow, president of the National Center for Higher Education Risk Management, a consulting and law firm that advises colleges. "Its influence is ever increasing outward in concentric circles."
Campuses are clearly grappling with the weight of their responsibility as they come under pressure from activists, as well as the White House. Many self-identified survivors of sexual assault are pressing colleges to step up their response to sexual violence. And the Obama administration recently released stringent new guidelines to help colleges combat assault-including tips for students on how to file complaints against institutions they believe fall short. The Education Department is now investigating 61 colleges and universities for possible violations of Title IX related to alleged sexual violence.
How effective campuses will be in carrying out their broader role under Title IX is not yet clear, says Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. "Is this vision of making Title IX effective in these cases going to work?" he asks. Expectations are still evolving, he says, but "we are being forced into developing a college court system, and we haven't really had that before."
Decisions Set Precedents
So how did a law originally meant to prevent gender discrimination morph into one being used to combat rape?
Expanding the reach of the gender-equity law happened gradually, in large part through precedents set by court cases, starting in the early 1980s. Students sued schools and colleges for allegedly mishandling complaints of harassment and assault; rulings established sexual harassment as a form of discrimination, with assault the most severe form. Therefore, victims of rape could be considered subjects of discrimination under Title IX.
While there was no watershed case establishing sexual assault as a form of gender discrimination, a federal court ruled on student-on-student sexual assault in a case involving Yale University in 2003. "There is no question that a rape," the ruling held, "constitutes severe and objectively offensive sexual harassment."
As a result of the early cases, campuses began instituting formal procedures in the 1980s that allowed students to file complaints about sexual harassment and assault. Many undergraduates, however, said colleges often minimized such complaints, botched investigations, and ultimately failed to protect young women from the men they said had assaulted them.
It wasn't until 2011, experts say, when the Education Department's Office for Civil Rights released a "Dear Colleague" letter, that campuses began taking their role more seriously.
"The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination," the letter states. It is up to colleges and universities, it says, "to take immediate and effective steps to end sexual harassment and sexual violence." The letter also stressed that colleges should adhere to a standard of proof the department first set in 2002-a standard many had ignored-that told campuses to determine responsibility based on the preponderance of the evidence (i.e., more likely than not), a standard used in civil cases, as opposed to the higher standard of "beyond a reasonable doubt" required for a criminal conviction.
"This was a dawn of a new awakening," says Saundra K. Schuster, a lawyer with the risk-management firm. The letter, she says, put campuses on notice that they must handle students' complaints against fellow students in a uniform way, with the goals of investigating the allegation, remediating its impact on the victim, stopping the behavior, and preventing it from recurring.
Since then, a few investigations by the Education Department have resulted in high-profile settlements-with the University of Montana at Missoula, for example, and Tufts University-imposing many rigid requirements on those institutions, with implications for others. Hire a consultant on equity issues, for instance. Develop a confidential tracking system for reports of sexual misconduct. Conduct regular surveys to gauge the campus climate.
Still, many question why colleges-not the police or courts-seem to have the primary responsibility for dealing with a crime as serious as rape.
First, say higher-education experts, colleges have always had disciplinary systems in place to deal with student misconduct. "Partying, substance abuse, sex," says S. Daniel Carter, director of the 32 National Campus Safety Initiative of the VTV Family Outreach Foundation, an advocacy group representing survivors and victims of the mass shooting at Virginia Tech in 2007. "These are the same things college students have engaged in for hundreds of years," he says. "When they cross certain lines, campuses have long stepped in to both educate and protect, by undertaking disciplinary action." Parents who pay tens of thousands of dollars in tuition each year also expect campuses to help keep their children safe.
In addition to their responsibility to impose discipline, says Mr. Carter, colleges now have the primary role in responding to reports of sexual assault because no one else will. The criminal-justice system, he says, often opts not to follow through with complaints. Establishing consent or guilt in an encounter between two people in which details are often made murky by alcohol can be difficult, and prosecutors are often reluctant to pursue cases they can't win.
"While a criminal investigation is initiated at the discretion of law-enforcement authorities," the Education Department says in its recent Q&A, "a Title IX investigation is not discretionary; a school has a duty under Title IX to resolve complaints." The department recommends that institutions "notify complainants of the right to file a criminal complaint" and "not dissuade" them from doing so, but clarifies that "Title IX does not require a school to report alleged incidents of sexual violence to law enforcement."
Students who have reported incidents to their colleges often say the criminal-justice system seems daunting. Many instead seek justice on their campuses, and some activists have lobbied administrators to expel any student found responsible for sexual assault. Adds Mr. Carter: "Colleges can offer a quite attractive alternative to the criminal-justice process, with a lower burden of truth, a less public process, and a greater chance of actually having something done that protects women."
'Going to Take Time'
How campuses handle sexual assault might evolve as drunken-driving laws did, says Mr. Lake, at Stetson. "It used to be you could drive drunk in lots of places," he says, "and get away with it."
But public pressure and legislation changed that. "Tactics, training, and techniques to address drunk driving are now ubiquitous," says Mr. Lake. It took 25 years, he says, but "it is now uniformly enforced."
Campuses' responsibility to respond to sexual assault is also about "society redefining a public-health issue," he says. "It is going to take time for colleges to catch up to the epidemic of sexual assault."
Ann Olivarius, for one, is impatient. In 1977 she and four other female students sued Yale University in one of the first sexual-harassment cases to use Title IX. Harassment of students by professors, the ruling helped determine, is a form of discrimination.
At the time, Ms. Olivarius was a senior at Yale who ran the undergraduate women's caucus and had been asked by the Yale Corporation to draft a report on the status of women at the university. As part of the suit, Alexander v. Yale, she argued that the university's lack of procedures for students to report sexual harassment meant she had to intervene on behalf of alleged victims. In that role, she said, she was threatened by professors whose names she forwarded to the Yale administration after students reported them. And Yale, Ms. Olivarius argued, had failed to protect her. The case prompted Yale and other institutions to establish the first procedures for students to file formal complaints about harassment and assault.
Nearly 35 years later, Ms. Olivarius is a lawyer with her own firm, in London and New York, which represents victims of sexual assault in higher education. Colleges are still struggling, she says, with how to protect young women.
"Why is it so hard for an educational institution to police itself?" Ms. Olivarius asks. "If it were GM or McDonald's that had made no real progress in fixing a serious product defect that's been illegal for three decades, people would rightly be angry. Universities charge students tuition, they realize this is a recurring issue, yet despite having the best and brightest minds, they seem immobilized."
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