May 20 2019
Becca Williams
Assistant Director of CARE Advocacy Services

Title IX Overview

Title IX is a federal civil rights law enacted in 1972.  It reads: 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”[1].  While most people understand Title IX within the scope of gender equality in sports, it has recently become known as it relates to the impacts of interpersonal violence (IPV) on college campuses receiving federal funding.  IPV refers to sexual assault, dating/domestic violence.

In 2011, the Obama administration released a “Dear Colleague Letter”, illuminating Title IX’s mandate to investigate IPV incidents as they violate school policy and student conduct codes.  With the understanding that these crimes are underreported for a variety of reasons, the Dear Colleague letter, among other things, sought to lower the evidence standards for Title IX offices from what was a “clear and convincing” standard to what is now a “preponderance of the evidence” standard.  Meaning, the school’s Title IX office needs to demonstrate that an incident of IPV “more likely than not” occurred in order for them to substantiate a claim.  This guidance, though not enforced, was widely adopted and is the current operating standard for the University of California system.

There has been much backlash to this in the intervening years, including arguments about due process for the respondents, arguments stating that the preponderance of the evidence standard increases the amount of false allegations, arguments stating that the school’s role in investigating these policy violations should be limited, inasmuch as they represent crimes that should be investigated by the police, and that the investigative procedures adopted by schools can lead to a student’s fate being decided in “kangaroo courts”.

Recent Changes to Title IX Policy

In September of 2017, Secretary of Education Betsy DeVos rescinded the 2011 Dear Colleague Letter while her office took time to draft new Title IX regulations.  Ultimately, this gave power to individual colleges and universities to decide which evidence standard to use in their investigations.  In November of 2018, DeVos released her proposed Title IX regulations.  There was a brief comment period that followed, and currently the Department of Education is working on finalizing these regulations, some of which are summarized below.

  1. Jurisdiction Change
    • Prior to this proposed change, Title IX had jurisdiction to investigate policy violations if the respondent was a student at that institution, regardless of where the incidence physically took place, and regardless of the student status of the complainant. The current proposal limits Title IX’s jurisdiction to student respondents involved in incidents occurring only on campus-owned property, or in events or programs explicitly overseen by the school (for example, at a university-owned fraternity house).
  2. Narrower Definition
    • Obama-era guidance defined sexual misconduct as “Unwelcome conduct of a sexual nature”, allowing for it to encompass a broad range of activity. The current proposed regulations would narrow that definition to “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity”.
    • This change in definition is important as it may indicate that the school would not be obligated to investigate a potential violation unless the student has already lost access to their education. For example, if a student was sexually assaulted in the school library by another student, and was still able to complete their coursework on time without any ramifications or accommodations, Title IX may not be able to investigate the incident, as it is not pervasive and did not deny the complainant access to educational activities.
  3. “Actual knowledge” and change in the responsible employee mandate
    • Prior, any non-confidential employee of the school (confidential employees would include psychologists, confidential advocates, and office of the ombudsman) was deemed a “responsible employee” meaning they were required to report any knowledge of a policy violation to the Title IX office. Now, the Title IX office must have “actual knowledge”, meaning the complainant must directly file a report with their office.
  4. Live hearings
    • After Title IX conducts their investigation and either substantiates or unsubstantiates a claim, there is an adjudication process that varies by institution. At UC Santa Barbara, the Title IX report is sent to the student conduct office, who reviews the information and makes a final decision.  Either party can appeal that decision.  An appeal hearing is then held, whereby either party has the right to a support person (friend, family member, or confidential advocate) and an advisor (legal counsel).  At UC Santa Barbara, members of UCSB faculty and staff sit on the appeals board, hear the appeal, and issue a decision. The extent to which these members are trained in the Title IX policy regarding sexual violence is unknown. The new regulations propose that this be a live hearing in which the advisor for one party can directly, or through a neutral party, question any witnesses (including the Complainant).

While these proposed regulations have yet to be solidified nationwide, California adopted the live-hearing model in January 2019, per John Doe v. Kegan Allee, Ph.D., et al.  This case called the current model of adjudication “fundamentally flawed, in that it provides no mechanism for a party accused of sexual misconduct to question witnesses before a neutral fact finder vested with power to make credibility determinations”[2].

For the UC system, this means that in any substantiated Title IX case in which the policy violation could warrant a suspension from the school (such as a sexual assault-penetration case) and in which either party’s credibility is assessed to make that determination, the respondent can appeal the sanction.  Before this case law, any party could appeal on four grounds: 1) There was a procedural error in the Title IX investigation; 2) The decision was unreasonable based on evidence; 3) There is new evidence that was unavailable at the time of the investigation; 4) The sanctions are disproportionate to the findings.  Now, any party can appeal on any grounds and have their appeal heard in in a live hearing where witnesses, the complainant, and the respondent can be questioned directly or through a neutral party.

Furthermore, this case law essentially converts the new hearing into a de novo hearing, with those hearing the appeal now vested with the power to make decisions based on the information brought forth.  While Title IX cannot mandate anyone’s participation in this process, it now is crucial for both parties to participate for their side to be heard.

UCSB and Title IX

UCSB’s Title IX office has worked to maintain equitable and timely responses to policy violations.  While the current federal guidance suggests that a Title IX investigation take 90 business days to complete, many of them take much longer.  A large portion of these investigations take over 270 business days to complete, endangering the complainant’s due process, their access to equitable education, and the process by which a substantiated claim can result in a sanction for the perpetrator.  If a claim of sexual assault – penetration is substantiated, the minimum sanction for a student respondent is a two-year suspension. There are no minimum sanctions for respondents who are faculty or staff. If a student graduates while being investigated, Title IX has limited jurisdiction by which to issue a sanction.  If a claim is substantiated for a student who has already graduated, the school may place a hold on the release of their diploma or their transcripts for period of time.

The delay in investigations means that complainants and respondents will continue to have equal access to education and educational programming unless interim measures are taken (interim measures are implemented if the respondent represents a significant threat to the campus community).  Furthermore, there is a chance that respondents whose cases are delayed are still able to violate policy while under investigation, leading to multiple complaints being investigated for the same respondent.  The school’s inability to swiftly investigate and adjudicate these violations jeopardizes other students, and potentially enables those with a substantiated claim to enter into the professional world without having faced any consequences for their egregious behavior.

UCSB’s CARE office works confidentially with survivors of interpersonal violence to provide support and resources. Between 20-25% of the survivors we work with opt to report these crimes to law enforcement and/or Title IX, with the hope that they will see a prompt and just response.  When the school takes over a year to investigate these crimes, and a negligible rate of prosecution exists (for many reasons:  lack of evidence, cases involving alcohol are difficult to prosecute, etc), survivors are often faced with a reality in which they must live side by side with their perpetrators.

Understandably, due process is a critical component in these cases, however when faced with barriers of a delay in investigation, the chance of being re-traumatized in a de novo hearing, and the likelihood that the perpetrator will graduate without facing any punishment for their policy violations, we are left to wonder for whom due process exists. Many survivors struggle to talk about their stories with their family, seek guidance from an advocate, or understand the complex process they are taking part in.  For that reason, we need the support of lawyers who are well versed in Title IX case law and policy, the strategies of the “defense”, and the complexities of cases involving sexual violence.

Please contact sbwladmin@gmail.com for more information or to get involved, including pro bono opportunities.  Visit CARE to learn more.