A Guide to the New Title IX Proposals

Members of the House of Representatives and the Senate today announced bipartisan legislation to address the growing concern over sexual assault on college campuses. They have proposed some important reforms that should significantly improve provision for the one in five women who will be sexually assaulted while in college.

This comes just weeks after Senator Claire McCaskill, one of the co-sponsors of the bill, released the results of a massive survey of college and university presidents, which found that 40 per cent of schools had not conducted a single sexual assault investigation in the last five years. This is an astonishing manifestation of a head-in-the-sand mentality in which colleges simply refuse to take responsibility for their duties under federal law.

So it’s good to see that legislators are seeking change on this issue. But what does the bill actually call for?          


1.       A nationwide survey of students’ experiences of sexual assault. It’s a cliché, but it’s true – sunshine is the best disinfectant. Sen. McCaskill’s survey showed that there were some glaring gaps in processes and the provision of support to sexual assault victims. The more information is collected, the more effectively the Department of Education and local campaign groups will be able to put pressure on rogue colleges to conform.                 


2.       A uniform process of reporting and investigation. More consistency in the complaints and investigation process is a crucial element of creating justice for survivors of sexual assault. Because procedures are often unclear, students are rarely confident of their rights, and don’t feel able to speak up to their institution if they are treated poorly. Uniform procedures will also make it easier for organisations like Know Your IX to educate students about their rights and options under Title IX. 


3.       Minimum training standards for on-campus personnel. There have been some real horror stories of college administrators both blaming the victim and minimizing the assault. Annie Clark, the founder of End Rape on Campus, was told when she reported her assault that rape is like a football game – she should look back at the game and figure out what she had done wrong. Educating staff about the true nature of these crimes and the ways in which victims respond to them won’t completely stop inappropriate responses, but it will help to make sure that survivors get the support they need.  


4.       New campus resources and support services for student survivors. Colleges will be required to appoint confidential advisers to coordinate support and provide information and options (and potentially assist with the reporting itself). Schools will also be prohibited from punishing a student who admits to another rule violation (like underage drinking) as they report their assault.


5.       Enforceable Title IX penalties and stiffer penalties for Clery Act violations.   This last provision is the real game-changer.  Despite the increasing attention being given to sexual assault on campus, it hasn’t been enough to pressure colleges to actually do very much. The threat of reputational damage can only go so far, especially when it appears that nearly every school has been playing fast and loose with their responsibilities. Emily Bazelon recently wrote that, between 1998 and 2008, the Department of Education imposed sanctions in none of the 24 investigations it made into Title IX violations. The lack of a financial penalty is part of the reason why colleges have been reluctant to change on this issue.  This bill contains the potential for schools to lose up to one per cent of their operating budget if they don’t comply with certain parts of the bill. For every university, this would be a massive reduction of their spending power, and a cost worth avoiding – Harvard, for example, with an annual operating budget of $4.2 billion, could lose up to $42 million. Not only do these substantial numbers provide an incentive for schools to comply, but they send a signal to staff and students alike that the US government is serious about addressing this problem.                    


It’s also good to see that this isn’t simply a female issue – Senators McCaskill and Gillibrand were joined by Republicans Chuck Grassley and Marco Rubio, and Democrats Richard Blumenthal and Mark Warner in sponsoring the bill. Rubio said that the bill “creates a system where there is no special preference because somebody can dunk a basketball or throw a ball 80 yards down the field.” While Rubio doesn’t have the best record on gender equality – he voted against the reauthorization of the Violence Against Women Act – it’s good to see more male allies joining this fight.

The one question I have about this proposal is its implications for the sexual harassment of students by staff and faculty. Our firm represents students who have faced harassment and assault from both professors and fellow students. Sexual harassment by faculty is not as dramatic an offense as rape by a classmate, but it is widespread and often causes lasting damage to the student, from dropping out to depression to suicide. This bill should help reduce the prevalence of sexual assault on campus, but the tools it uses to do so --transparency, consistent rules, and accountability – can and should be extended to protect victims of sexual harassment, too.