Title IX is a well intentioned federal law that aims to protect Americans from sexual discrimination in schools, universities and colleges.
Yet, more than 40 years after the law was enacted, it remains confusing and unevenly applied when it comes to sexual assaults and harassment on university and college campuses.
The Trump administration is rewriting the law. Some of its proposed changes, such as ensuring all parties have access to all the evidence gathered, are appropriate. Others, such as restricting the definitions of sexual assault and harassment and minimizing the instances in which schools need to respond, are not.
Rather than new rules, schools, particularly small campuses, need more help following the guidelines that are already in place. Further, any rules need to be clear and not conflict with other federal and state laws, as the University of Maine System noted in its comments on the proposed changes.
Two incidents at the University of Maine at Farmington, which were extensively covered by the Bangor Daily News, highlight shortcomings of the law, and its implementation. Two female students reported being raped at the small campus in western Maine. Both women spoke before committees that determined they had been sexually assaulted. But then both students experienced errors in the handling of their cases and saw their findings overturned.
In one case, the university allowed her alleged attacker to remain on campus even after a committee found him responsible for sexual assaulting her and issued a two-year suspension. Worse the then-campus president overturned the committee’s finding and she “strongly urge[d]” the female student to seek alcohol counseling.
Clearly UMF made mistakes in these two cases. The university’s interim president, Eric Brown, acknowledged this in an email to students after the BDN story. He also pledged to hire a new vice president for student affairs with “extensive experience in Title IX issues,” whose responsibilities will include maintaining a safe campus environment and to use a recent donation to pay for a new mental health counselor with experience dealing with sexual health and sexual assault, among other steps.
At a campus meeting earlier this month, many students expressed frustration with how UMF handles allegations of sexual assault and harassment. While such criticism is appropriate, this situation also highlights some pitfalls with Title IX.
One frequent question is why perpetrators, like those in the two Farmington cases, who are not found guilty by a court can still be punished by a school. The simple answer is that the campus Title IX process is about discrimination, not criminal activity. The campus process is about whether students have broken school rules and should remain on campus. It is also meant to have an education component, not just be about punishment.
For this reason, the standards for determining if a violation occurred are different. Universities use the “preponderance of the evidence” standard in deciding sexual assault cases under Title IX. The standard asks if the complainant’s version of events is more likely than not. It’s a lesser bar than the “beyond a reasonable doubt” standard required for criminal cases.
To this end, the Trump administration has proposed to tighten the definition of sexual harassment and assault. It goes too far by allowing schools to require that sexual harassment and assault be proven by “clear and convincing evidence.”
Adding a third standard adds further confusion.
The proposed rules would also limit what constitutes harassment to “unwelcome conduct that is severe, pervasive, and objectively offensive,” and they would forbid schools from investigating complaints that do not meet that exceedingly high standard.
These are steps in the wrong direction.
To be helpful, the Department of Education would do better to ensure that schools, especially small campuses like UMF, are equipped to handle these cases. As it is, professors, counselors and administrators are being asked to handle complex cases that our criminal justice system often fails to handle properly.