What is Title IX

Historical Perspective

Title IX is part of the Education Amendments passed by Congress in 1972 to prevent discrimination on the basis of gender. Specifically, Title IX states:

“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 financial assistance” 20 U.S.C. §1681

Gender discrimination is prohibited in all aspects of student life including, but not limited to, athletics, admissions, financial aid, housing, health services, counseling, and grading. Sexual harassment, sexual violence, stalking, dating violence, and domestic violence are all forms of gender discrimination that are included under Title IX. Further, under Title IX, prohibits the retaliation against anyone filing a complaint under Title IX protections.

Title IX requires any university that is aware, or should be aware, of harassment or sexual violence that creates a hostile environment to take immediate action to eliminate the harassment or violence and work to redress the hostile environment that has been created. Part of the necessary steps a university may need to take is the investigation of the complaint of harassment or violence. That investigation may lead to a hearing to determine responsibility for the incident and to determine what steps need to be taken in order to redress the hostile environment.

Enforcement of Title IX is overseen by the Office of Civil Rights (OCR) under the umbrella of the Department of Education. Title IX intersects with many other laws including the Clery Act, Family Educational Rights Privacy Act (FERPA), Violence Against Women Reauthorization Act (VAWA), and many new laws and regulations have been proposed. Senator Claire McCaskill (MO.) hosted a series of roundtable discussions surrounding sexual violence on college campus and recently released a report based on a survey sent to institutions of higher education. The results can be found here: http://www.mccaskill.senate.gov/imo/media/doc/SurveyReportwithAppendix.pdf.

While there are many rules and regulations pertaining to Title IX that will be discussed in Section D below, there are three specific procedural requirements which all recipients of Federal financial aid must comply with. Those three requirements are:

  1. Disseminate a notice of nondiscrimination. The KU notice of nondiscrimination is found in Section II above.
  2. Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX. The Title IX coordinator for the University of Kansas is Jane McQueeny, Executive Director for the Office of Institutional Opportunity and Access (IOA). IOA can be reached in any of the following ways:
  • Website – ioa.ku.edu
  • Phone – 785-864-6414
  • Email – sexualharassment@ku.edu
  • In person – Lawrence/Edwards Campus – Carruth-O’Leary Room 153
  1. Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints. KU’s student non-academic conduct procedures can be found here: http://policy.ku.edu/sites/policy.ku.edu/files/non-academic-student-conduct_0.pdf
Statistics and Facts

Some national statistics:

  • An estimated 20-25% of women in higher educational institutions will be the victim of attempted rape or rape over their college career.[1]
  • In 2009, college campuses reported almost 3,300 forcible sex offenses as defined by the Clery Act.[2]
  • Survivors of rape or sexual assault are 4 times more likely to be victimized by someone they know than by a stranger.[3]
  • 1 in 12 college-age men admit having fulfilled the prevailing definition of rape or attempted rape, yet virtually none of these men identify themselves as rapists.[4]
Underreporting[5]
  • Rape or sexual assault is the violent crime LEAST often reported to law enforcement (U.S. Department of Justice, 2001).
  • A study was completed by the Inter-Association Task Force of the Association for Student Judicial Affairs. It is entitled, “National Baseline Study on Campus Sexual Assault: Adjudication of Sexual Assault Cases.” A survey was distributed to 419 voting delegates of the National Association of Student Personnel Administrators. Of the respondents, 73 percent held the position of Dean, Associate or Assistant Dean and 46 percent were from private institutions, and 51 from public institutions. Averaging the data for the three-year period studied, 1993-1996, showed that for 50 percent of institutions, no sexual assaults were reported to the judicial affairs officers (Lowery, Penney, & Tucker, 2000).
  • There are several reasons why rapists escape the criminal justice system. To begin with, 60 to 90 percent of sexual assault victims do not report the crime (Remick, 1993). Reasons for not reporting include the following: fear of being disbelieved, lack of faith in the criminal justice system, and fear of the alleged assailant.
  • When survivors DO report rape, the most common reason given for reporting the rape or sexual assault is to prevent further crimes by the offender against future victims (Michigan Judicial Institute, 2002).
  • 7 out of 10 students on college campuses, asked for their opinions on how their administration handles sexual assault cases, say that they do not have confidence in the process or those who administer it (Sokolow, 2004).
  • Campus sexual assault victims rarely make formal reports of their assaults. It is the legal and moral responsibility of the campus community to change that reality. Victims are reticent to report for many reasons, such as lack of awareness that an incident constitutes campus sexual assault or rape, fear that friends and/or family will not support or believe them, fear that they will be blamed by authorities, or fear that they will be put on trial, opening their past and present behavior to public scrutiny. This last reason is the strongest structural impediment victims cite for not coming forward (Sokolow, 2004).
Legal Perspective

Under Title IX, federally funded schools must ensure that students of all ages are not denied or limited in their ability to participate in or benefit from the school’s educational programs or activities on the basis of sex. When a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. If an investigation reveals that sexual violence created a hostile environment, the school must then take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects. [6]

  1. Jurisdiction | Unlike other violations of the Code of Student Rights and Responsibilities, violations related to sexual violence both on and off campus are subject to the jurisdiction of the University when it occurs in the context of an educational program or activity or when the violence creates a hostile environment on campus. Most, if not all, instances of sexual violence will create a hostile environment. What does this mean practically speaking? A single instance of sexual violence that occurs off campus in a private apartment will likely create a hostile environment such that an IOA investigation would commence. This includes private student housing, hotels, bars, fraternity and sorority houses, study abroad, and more. This jurisdiction is mandated by federal regulations and cannot be abridged by the university.
  2. Criminal Investigations and charges | Sexual violence is a crime and can be prosecuted and punished under the laws of the State of Kansas. It is possible that there is a campus investigation and criminal investigation occurring simultaneously. Title IX requires campuses to complete an investigation, including a hearing, within a reasonable and prompt timeframe. 60 days is considered a reasonable and prompt timeframe. Criminal investigations and court cases tend to take much longer. It is entirely possible that criminal charges are pending at the time of the hearing. The hearing must move forward without waiting for the resolution of criminal charges. Other cases may not have criminal charges pending. This is possible for a couple of reasons. The complainant may have decided not to pursue criminal charges. This is the right of the harmed party and should not be considered when making a decision. The harmed party may have decided not to pursue criminal charges for many reasons including: fear of being disbelieved, lack of faith in the criminal justice system, and fear of the accused student. In some cases, the local prosecutor’s agency may have decided not to file charges against the accused student. The criminal justice system utilizes a burden of proof that is far beyond that of a campus hearing. Whereas a campus hearing uses the preponderance of the evidence standard, the criminal justice system uses beyond a reasonable doubt. The criminal justice system also uses a different standard of evidence which may preclude evidence that will be allowed in the campus hearing. There are potentially situations that may be a violation of the Code of Student Rights and Responsibilities, but not a violation of state criminal law. For these reasons, you should not be influenced by a lack of criminal charges or find that to be determinative when making your decision.
  3. Fair and Equitable Process | Fair and equitable investigations and hearings are required in Title IX cases. In the context of a hearing, OCR requires that each party is given the same opportunities and are afforded the same rights. For example, both parties must be provided the opportunity to present witnesses and information, both parties must be given similar access to information, and if one party is allowed and advisor or attorney present then both parties must be afforded the opportunity. At KU, each party is allowed to have up to three advisors present, one of which may be an attorney.

Further legal requirements will be discussed below in the various sections and include complainants sexual history, necessity of interim sanctions, purpose of sanctioning following a hearing with a finding of responsibility, requirements of a grievance system, training requirements, and the need for impartial hearings.

 

[1] National Institute of Justice, Measuring Frequency of Sexual Assault on Campus

[2] U.S. Department of Education, Office of Postsecondary Education, Summary Crime Statistics (data compiled from

reports submitted in compliance with the Clery Act), available at

http://www2.ed.gov/admins/lead/safety/criminal2007-09.pdf. Under the Clery Act, forcible sex offenses are

defined as any sexual act directed against another person, forcibly and/or against that person’s will, or not forcibly  or against the person’s will where the victim is incapable of giving consent. Forcible sex offenses include forcible rape, forcible sodomy, sexual assault with an object, and forcible fondling. 34 C.F.R. Part 668, Subpt. D, App. A.

[3] National Center for Victims of Crime , U.S. Department of Justice, Office for Victims of Crime (OVC).  National Crime Victims' Rights Week Resource Guide. 2009.

[4]  Crisis Connection. National College Health Risk Behavior Survey. Fisher, Cullen & Turner, 2000. Warshaw, 1998.http://www.crisisconnectioninc.org/sexualassault/college_campuses_and_rape.htm

[5] This section reproduced with permission from the University of Michigan’s Striving for Justice: A Toolkit for Judicial Resolution Officers on College Campuses. http://sapac.umich.edu/tags/striving-justice-toolkit

[6] United States Department of Education. (2014). Questions and Answers on Title IX and Sexual Violence. Washington, DC: Lhamon, C.E.

 


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