ALBUQUERQUE, N.M. — Ask people at random what Title IX is and chances are those who’ve heard of it will tell you it’s the law that guarantees girls and women the same opportunities as boys and men to participate in school sports programs.
They would be right, of course, but only partially so. Since its inception, the civil rights law also has been used as a legal tool in another type of case and the trend is moving in that direction. Especially in recent years, Title IX of the Education Amendments of 1972 has been used to support allegations of sexual harassment and sexual assault on college campuses.
The purpose behind this use of Title IX is to pressure universities and colleges to take a more proactive stance against sexual harassment and assault, and to make sure all such allegations are taken seriously and handled with sensitivity.
The U.S. Department of Education’s Office of Civil Rights reviews Title IX complaints. It says the federal civil rights law “prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities … receiving any Federal funds must comply with Title IX. … Under Title IX, discrimination on the basis of sex can include sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.”
Historically, some college administrators and campus security departments have downplayed the seriousness of such allegations, even accusations of rape. But that turn-the-other-cheek, “boys will be boys” attitude seems to be rapidly disappearing as more campus women turn to Title IX.
University of New Mexico Law Professor Dawinder Sidhu, whose specialties include constitutional law, criminal law and civil rights, worked for the Office of Civil Rights from 2004 to 2007. He said Title IX is one of several ways to seek redress. If a complaint is deemed credible, a federal investigation is triggered. That, he said, in and of itself, may make Title IX an acceptable approach.
The Office of Civil Rights “exists to ensure that public institutions comply with civil rights laws,” Sidhu said. “As more people become aware, then more individuals may feel comfortable filing Title IX grievances.”
Melanie Baise, a UNM associate counsel, said in an email that there is a “new emphasis on both responding to the needs of individual students who experience sexual violence and also having comprehensive prevention and awareness education for all students and employees to prevent the occurrence of sexual violence.”
Under the law, sexual harassment is a form of sex discrimination. “Sexual assault and other kinds of sexual violence are severe forms of sexual harassment,” Baise said.
Unlike some universities, UNM has a comprehensive policy on sexual harassment and assault. Simply stated, such acts are not tolerated. Although it is not posted conspicuously around campus, the zero-tolerance policy may preclude some acts of harassment from taking place. And if an incident should occur or be alleged, the policy could provide victims with yet another tool to use in seeking redress.
It could also offer some legal protection to the university.
Sidhu said he was shocked last spring when Secretary of Education Arne Duncan released a list of 55 universities and colleges that are subjects of Title IX investigations. UNM was not on the list. Sidhu noted virtually anyone can file a complaint and initiate an investigation.
“With such a low bar, the fact that institutions are the subjects of investigations is not very meaningful in my mind,” he said. “It raises concerns that perhaps there is more under the surface. I think the parents of a student who is about to matriculate could have concerns. ‘Innocent until proven guilty’ should apply to large institutions, not just individuals.”
Despite the ease of filing a Title IX complaint, the efficacy of such a move is unclear. A Chronicle of Higher Education article, “A Promise Unfulfilled,” found that “the power and influence that students attribute to Title IX to transform how colleges handle sexual assault might be more than the law’s enforcement process can deliver.” Of complaints filed from 2003 to 2013, fewer than one in 10 led to formal agreements between federal and college officials to change campus policies.
“The actual authority of the Office (of Civil Rights) is rather limited,” Sidhu said.
Enforcement mechanisms under Title IX are twofold: The OCR can try to improve campus grievance procedures and convince a school to institute a robust policy to deal with allegations. Or, following an investigation, if warranted, a complaint could be referred to the Department of Justice for possible criminal action and federal funds withdrawn from the institution.
An individual could also file a federal lawsuit seeking either injunctive relief – a court order requiring the school to make changes – or monetary damages, Sidhu said. The OCR itself cannot impose monetary sanctions.