Title IX and the #MeToo Movement: A Catalyst for Change
| | Title IX, Title IX : Sexual Assault/Misconduct
The rallying cry of “Me Too” started making the rounds on social media back in 2006, but the phrase and the #MeToo movement exploded in popularity in 2017 after reports surfaced of sexual abuse committed by film producer Harvey Weinstein. Social media posts by actresses and other prominent figures prompted women in all types of situations to speak up and share their experiences of sexual assault and harassment in the workplace and elsewhere.
College campuses were hotbeds of activism in this movement, but the Title IX complaint process started drawing attention to the problem on campuses long before 2017 or even 2006. It can be argued that the #MeToo movement captured the public’s attention, but Title IX was a catalyst for change well before that.
At Nesenoff & Miltenberg, LLP, we focus our practice on Title IX issues, so we are keenly aware of the instances when the courts, regulations, and administrative guidance have expanded the scope of Title IX. We have seen first-hand the effect the laws have had on campuses. While problems remain and can still benefit from attention and thoughtful action, it is important to consider the changes wrought so far as we assess the best ways to effect improvements in the future.
Title IX Protections Expanded to Cover Sexual Assault
In the first two decades after the passage of Title IX, much of the focus was on providing equal opportunities for female students, faculty, and staff on campus. Athletic teams and facilities garnered most of the public attention. This makes sense given the language of the statute “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.”
In 1992, that changed after the Supreme Court ruling in Franklin v. Gwinnett County Public Schools. In that case, the Supreme ruled unanimously that a student who had been subjected to sexual abuse could file a claim for damages against the school system based on a violation of Title IX. Interestingly, all the legal discussion in the case centered on whether a claim for monetary damages was allowed under Title IX, not whether discrimination under Title IX included sexual assault. From that time on, however, the Title IX obligations of schools were looked at differently.
The Franklin case, which was truly horrifying in the treatment of a high school student who was subject to repeated sexual harassment and eventually rape at the hands of a teacher, focused new attention on sexual assault on school campuses. Advocacy groups began demanding that schools do more to protect vulnerable students, mainly women, and primarily on college campuses where young adults experimented with behavior far from parental supervision.
In 2001, the Office for Civil Rights of the U.S. Department of Education, the agency responsible for the administration of Title IX regulations, issued guidance that expressly discussed what constituted sexual harassment under Title IX and how schools would be expected to respond to complaints. Ten years later, the Department released additional guidance in the form of a “Dear Colleague” letter that specifically stated that sexual violence and assault were included under the scope of sexual harassment under Title IX. In 2014, the Office for Civil Rights released a Question and Answer document that further explained the responsibilities of educational institutions when investigating and adjudicating complaints of sexual misconduct alleged in violation of Title IX. The additional guidance, coupled with an update to the Clery Act and an administrative emphasis to raise awareness of sexual violence on campus, started to finally bring about changes in educational policies.
Colleges Become Responsible for Education, Prevention, Investigation, and Adjudication
The requirements of Title IX and other laws placed a tremendous set of responsibilities on institutions of higher education. In addition to ensuring that their athletic and academic programs offered equal opportunities for female students, faculty, and staff, they also now had to educate everyone on campus about what constitutes sexual harassment and discrimination and take active steps to prevent sexual assault and other sexual misconduct. They had to develop procedures to accept and investigate complaints and provide assistance to and support for victims. They had to create additional policies to adjudicate complaints of alleged violations and assess appropriate penalties. This was a huge task for many colleges and universities.
Efforts on campus to educate people about the prevalence of sexual misconduct helped raise awareness of the problem, but it was the complaints—and complaints about mishandling of complaints—that provided the greatest catalyst for change.
Lawsuits Bring the Issue of Sexual Assault into the Public Focus
Title IX regulations required schools to take on tremendous responsibilities and it also required them to handle matters quickly. Not only did they often have little time to establish policies, but they also were required to provide a “fair and prompt” resolution to complaints. In the rush to resolve cases, schools have—and still do—make mistakes. Sometimes, a complainant’s case is not taken seriously and investigated properly. Sometimes, schools look the other way or cut a deal to protect a prized athlete or popular athletic coach. Other times, the zeal to protect victims of sexual assault has led schools to levy severe penalties on students who have later been found not responsible for the offenses alleged against them.
When schools fail to take adequate steps to protect those vulnerable to sexual assault and other forms of harassment or when they go too far and penalize accused students without adequate evidence or proper due process protections, the #MeToo movement may have been a driving force encouraging aggrieved students and respondents to speak up and pursue justice through the federal courts. However, Title IX provides the vehicle that activists can use to create change.
Focus on Consent Leads to Greater Understanding
Many Title IX sexual assault cases hinge on the issue of consent, often in a situation involving indulgence in alcohol. While “No Means No” campaigns tried to draw attention to the importance of consent, many Title IX cases forced schools to create details policies and establish education and training programs to help faculty and staff as well as students truly understand when someone legally consents to sexual activity and when they are not capable of giving legal consent. The focus on the issue of consent has been one of the most positive changes to come from the publicity of the #MeToo movement and other campaigns.
School policy manuals now describe in detail when and how students must ask for consent and when someone is capable of giving consent. Campus slogans changed from “No Means No” to “Yes is Yes” to signify that consent cannot be implied and requires affirmative statements or actions. While activists on campus would have been likely to publicize these issues without the catalyst of Title IX, the threat of penalties against individual actors found responsible for misconduct and schools who failed to take adequate steps to prevent sexual misconduct on campus gave the publicity efforts an urgency they would not have had otherwise.
Sexual Harassment by Coaches
Some of the more high-profile cases involving Title IX sexual misconduct center on allegations of misconduct by athletic coaches. In some instances, the problems involve sexual violence or contact, while in other cases, the problems involve inappropriate language and harassment, creating a hostile environment. In some cases, schools have been held responsible for failure to provide adequate training to coaches and staff about what types of conduct constituted harassment and discrimination under Title IX. Policies have also shifted in many situations to remove the presumption that a sexual relationship is consensual, particularly when conduct occurs between a coach and athlete.
Lawsuits stemming from sexual harassment brought publicity that has prompted schools to place a higher priority on training, although it may be too early to tell whether the increased emphasis on training and prevention will have a sufficient effect on the experience of female athletes.
More Work to Be Done
Title IX policies and requirements have worked in conjunction with the #MeToo movement to bring greater awareness of the problem of sexual assault in campus settings. Awareness, however, is only the first step toward effective solutions. Title IX education efforts and enforcement mechanisms on campus and lawsuits brought when campus efforts fail are slowly producing changes. Since many assaults are not now and have never been reported, it can be difficult to gauge how effective movements and policies have been toward reducing incidents of sexual violence on college and university campuses.
At Nesenoff & Miltenberg, LLP, we work to enforce the goals of Title IX by helping complainants receive justice after a Title IX violation and assisting respondents accused of violence to ensure that their rights and futures are fairly protected. We address issues on campuses all over the nation. While we applaud the successes wrought by Title IX efforts, we know there is a long way to go to provide the equality and protection everyone deserves, and by leading efforts to enforce legal rights, we hope to help the forward progress continue. To discuss an incident or issue with us confidentially, simply contact us online or call 212-736-4500.