How Title IX Works

Title IX and Campus Sexual Assault
Meghan Downey of Chatham, New Jersey protests after U.S. Education Secretary Betsy DeVos announced changes in federal policy on rules for investigating sexual assault reports on college campuses. The Washington Post/Contributor/Getty Images

In 2014, the Office of Civil Rights (OCR) under the Obama Administration issued a letter to universities and colleges that began with the salutation, "Dear Colleague." With the "Dear Colleague" letter, the OCR sought to clarify how schools should handle campus sexual assault cases under the aegis of Title IX. While the letter was not the result of any new legislation, the OCR asserted that it had the authority to enforce the guidance it had offered if schools failed to comply. Many gender rights activists and sexual assault survivors hailed the letter as a positive step forward in the ongoing effort to deal more effectively with campus sexual assault.

Critics, however, were quick to leap on several elements of the letter. One of those was the section that outlined how schools were to use a "preponderance of the evidence" in deciding a case, rather than the standard used in criminal court, which is "beyond a reasonable doubt." Those opposed to this guidance argue that a "preponderance of the evidence" amounts to a call for the lowest possible standard of proof [sources: Johnson and Taylor].

Professor KC Johnson wrote an opinion piece for the Washington Post citing this element of the "Dear Colleague" letter as troubling, but less so than another section that prevents a survivor from being questioned about the assault. Taken as a whole, Johnson wrote, the "Dear Colleague" letter was flawed because it interfered with the principle of "due process" to which all accused persons are entitled under the law. He said he believed that the Trump administration was right to roll back the guidance outlined in that letter, referring to Education Secretary Betsy DeVos's announcement to rescind the Obama-era guidance.

Proponents of the "Dear Colleague" letter, like Alexandra Brodsky and Dana Bolger, maintain that the guidance outlined by the OCR does indeed protect the rights of the accused while addressing an important problem: namely that the conventional criminal justice model doesn't work well in cases of sexual assault because it puts the burden of proof on the victims [sources: Bolger and Brodsky]. Frequently in sexual assault cases, the alleged perpetrator's defense lawyer will actively seek to tarnish the victim's character in order to sow doubts about the reliability of their testimony.

All of this has led some to question the applicability of the criminal justice system to the problem of sexual assault. Professor Mary Koss of the University of Arizona, for instance, advocates the use of a "restorative justice" approach, which seeks to engage all of those involved in a conversational process that might offer some form of remedy for the harm without re-traumatizing the survivor through disciplinary hearings [sources: Bolger and Brodsky].

In a 2016 article for The Nation, Brodsky also notes that while the restorative justice model has many positive aspects, advocates worry survivors might feel pressured to resort to it rather than the standard disciplinary process, even if they preferred the latter. Professor Johnson points out that the restorative justice model isn't the best approach for getting to the bottom of "who did what." On the other hand, he notes that it might be a methodology that has the best real-world results for both the victim and the accused.

One way or another, Johnson told HowStuffWorks he believes that, with the exception of the "Dear Colleague" letter, Title IX has been a highly beneficial law that has served, and continues to serve an important and necessary role.

Axelson of the Women's Sports Foundation agrees, noting that Title IX has had a remarkable record of success at all levels of education for girls and women. Still, she adds, there's much work to be done. Remember those three girls out of every five who aren't participating in sports? The Women's Sports Foundation seeks to ensure that they're not playing sports as a matter of choice rather than lack of access.

The real focus now, Axelson says, is on making sure that girls of color have equal access to athletic programs. Recent research, she adds, has shown that many girls of color attend schools with inadequate resources, and often those few resources are not allocated fairly.

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