I. Introduction

The problem of sexual assault on college and university campuses has become a lightning rod. Columbia University, one of many postsecondary schools (schools)[1] caught in the crossfire over its handling of internal Title IX[2] disciplinary cases, recently reached a startling court settlement agreement with a former student.[3] The settlement was surprising, in part, because the court information about the school’s disciplinary decision was so inconsistent with the purported settlement agreement terms. In 2017, as part of an internal school disciplinary proceeding, Columbia University had apparently determined that the student had violated the university’s student code of conduct and found him “responsible for three instances of sexual assault.”[4] As a result of this determination, made under a Title IX process compliant with Obama Administration requirements, Columbia University took the unusual step of expelling the student and rescinding his degree.[5] He responded by filing an action against Columbia University alleging, inter alia, that the university violated his Title IX rights by “depriv[ing] him of educational benefits by failing to investigate his counter-accusations against his accuser.”[6] A firestorm ensued regarding the fairness of Columbia University’s adjudication process and its decision in this case.[7]

News of a settlement agreement sparked even more controversy.[8] Though Columbia University issued a statement standing by its disciplinary findings regarding the student, the university agreed to restore the student’s diploma and pay him an undisclosed settlement amount.[9] The student’s attorney characterized “the reinstatement of [the] degree and the ‘significant’ financial payment he will receive as part of the settlement [as] an admittance of wrongdoing by the university, even if it’s not outright.”[10] By contrast, Jane Doe’s attorney stated that “[n]othing about his settlement changes what happened to my client, nor does it change the fact that her complaint was validated at every step of the university’s process, and she stands by her complaint.”[11]

Columbia’s conflicting actions—standing by their disciplinary findings yet reversing the sanctions—illustrate the complexities of Title IX implementation in the last decade. While the reasons for their contradictory positions are certainly nuanced, they are undoubtedly and inextricably linked to the changes in Title IX enforcement from the Obama Administration to the Trump Administration and the resultant standards schools must meet. The New York Times put it plainly, "[The] suit was settled after the Trump administration had adopted a [new] regulation."[12]

Title IX has become a political seesaw in the last decade, with its meaning and coverage tied to the current presidential Administration in power rather than on its text and purpose. On the one hand, the Obama Administration made a number of well‑documented changes to Title IX interpretation and enforcement aimed at redressing prior lax enforcement, increasing complainant reporting, and aligning Title IX investigatory proceedings with a classic civil rights model.[13] This included increased and very public enforcement of Title IX requirements against schools.[14] On the other hand, the Department of Education (DOE) under Betsy DeVos (the DeVos DOE) implemented a new regulation (the 2020 Rule) in August 2020 that made a number of dramatic changes to the agency interpretation of Title IX.[15] In the 2020 Rule, the DeVos DOE leveraged critiques[16] that the Obama Administration had swung the pendulum too far towards complainants in order to effectuate the goal of watering-down Title IX and swung it dramatically towards respondents’[17] rights, notably those claiming to be wrongfully accused of sexual assault.[18] In doing so, the 2020 Rule created a quasi-criminal courtroom system for Title IX investigatory proceedings, including disciplinary proceedings, that is at odds with the educational focus and nature of schools. These changes, if maintained, will fundamentally alter the relationship between schools and their students and effectuate the long-warned-against transformation of classrooms into courtrooms.[19]

With the advent of the Biden/Harris Administration and concomitant changes expected to Title IX policies,[20] it is a pivotal moment to take stock of the last decade’s varied approaches and animating philosophies of Title IX implementation. It is an opportunity to reflect on what has been effective, what has been consistent with Title IX, and what needs to change. The politicization of Title IX, and the 2020 Rule’s importation of a quasi-criminal courtroom model into school investigatory proceedings, have sharply curtailed Title IX’s promise of ensuring equal access to education based on sex and led to contradictory and confusing mandates for schools. Title IX is the primary tool that students use when trying to obtain equal access to education based on sex, and it is therefore too critical to allow it to continue to be appropriated in this manner.

This Article proposes that DOE and schools refocus on Title IX’s equality goals separate from the past decade’s political seesaw in Title IX interpretation and guidance. Part II outlines Title IX’s primary goals and purposes. Part III analyzes the key changes made by the 2020 Rule and their effects on educational institutions. Part IV posits that the 2020 Rule is animated by two intertwined theoretical underpinnings—rape exceptionalism and a form of criminally grounded due process in the education context that I call the due process distortion[21]—and the way that these underpinnings are in tension with the goals and purposes of Title IX. Part V provides a set of dual principles to guide both DOE and schools moving forward: (1) the primacy of schools’ role as educational institutions, not courts of law; and (2) the need for DOE to center Title IX’s equality goals by requiring schools to craft effective intersectional Title IX investigatory systems. This Article concludes by proposing that both DOE and schools focus on researching and building systems that incorporate Title IX’s fairness and equality touchstones, reflect the reality of how identity and sexual assault intersect on campuses,[22] and are in line with general civil rights law implementation in schools, regardless of the presidential Administration currently in power.

II. Title IX: Goals and Aims

Title IX is a civil rights statute that protects individuals from being discriminated against on the basis of sex in education. Specifically, Title IX provides: “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 . . . .”[23] Title IX applies to most educational institutions in the United States, as all public schools and most private schools receive some form of federal funding.[24]

Title IX’s purpose is to protect an equal access to education based on sex.[25] Title IX was partially proposed as a reaction to the lack of sex-based discrimination provisions in the Civil Rights Act of 1964.[26] As Senator Birch Bayh, a leading proponent of Title IX, stated, there was a need for Title IX because “one of the great failings of the American educational system is the continuation of corrosive and unjustified discrimination against women.”[27]

At the outset, it is critical to note Title IX’s explicit statutory implementation scheme for its nondiscrimination mandate is administrative.[28] Of course, those alleging Title IX violations by educational institutions may file suits in court and obtain the remedies of injunctive relief, monetary damages, or both. However, the Supreme Court has held that this implied private right of action comes with heightened requirements.[29] Therefore, DOE provides the primary enforcement mechanism for Title IX. The Assistant Secretary for Civil Rights who oversees DOE’s Office for Civil Rights (OCR) is responsible for interpreting and implementing Title IX’s requirements.[30]

A. The Role of the Office for Civil Rights

As the administrative agency with the authority to define, implement, and monitor Title IX compliance, DOE, through OCR, issues statements about its Title IX interpretation.[31] These statements provide guidance to schools subject to Title IX requirements (guidance documents) about how to meet their Title IX obligations as then-defined by OCR.[32] Courts have differed as to how much deference to afford DOE’s guidance documents, with some arguing that only those that have complied with the Administrative Procedure Act[33] are entitled to deference.[34]

OCR has utilized its guidance documents to determine whether an educational institution is in compliance with Title IX.[35] When OCR determines that an educational institution is not in compliance with Title IX, it can implement a number of measures against the educational institution, including: (1) placing the school under a monitoring period; (2) issuing requirements to bring the school back into compliance; and (3) referring the educational institution to the Department of Justice, which can lead to a revocation of federal funding.[36]

B. Educational Institution’s Responsibilities

Educational institutions covered by Title IX must adhere to fundamental Title IX requirements as they have been delineated by the caselaw and by OCR. Over time, the Supreme Court clarified some basic Title IX definitional terms. The definition of sex discrimination evolved to encompass sexual harassment, including sexual assault, as prohibited sex discrimination,[37] thus incorporating sexual harassment under OCR’s purview.[38] Per Bostock v. Clayton County,[39] a critical Title VII Supreme Court case to consider in Title IX analysis, the definition of “sex” for federal civil rights statutes includes biological sex, gender identity, and sexual orientation.[40]

Once educational institutions are on notice[41] of a potential Title IX problem or violation, they have a duty to respond, which includes investigation and, if appropriate, adjudication of the sex discrimination.[42] This response obligation has been the center of much of the controversy because the 2020 Rule established robust new procedural requirements for Title IX proceedings and stringent limits on what schools must and must not investigate.[43]

Title IX’s enforcement scheme has a strong discipline-based focus: although Title IX’s promise of equal access to education is not circumscribed to discipline, over time the focus has trended to determinations of whether educational institutions have appropriately effectuated Title IX in their disciplinary processes.[44] As scholar Katharine Silbaugh has so eloquently explained, the story of Title IX is one which has “led to an understanding of sex discrimination under Title IX that disproportionately pressures colleges to deliver sex equality primarily by adjudicating assaults that have already occurred.”[45] Silbaugh argued that an effective Title IX response requires shifting from an adjudication after‑the‑fact model to inclusion of a public health prevention model.[46]

While I agree with Silbaugh and other scholars that Title IX obligations should not only be viewed through a limited disciplinary prism,[47] this Article focuses on correctly calibrating the investigatory process, including the disciplinary system, given that it has become such an outsized component of Title IX implementation and enforcement. As such, it is especially critical that this facet of Title IX becomes aligned with Title IX’s goals.

III. The Pendulum Swing: Changes in Title IX Interpretation from 2011 to 2020

A. Brief Background and the Obama Administration

High rates of sexual assault on our nation’s college campuses are well-documented,[48] as is the fact that sexual assault has a number of deleterious effects on a student’s ability to stay in school and succeed.[49] Sexual assault survivors face serious educational consequences, including but not limited to a negative impact on grades, the loss of scholarships, and reduced graduation rates.[50] These changes have ripple effects with long-lasting consequences: “Violence—and institutional indifference in its wake—changes the courses of survivors’ lives, with educational and employment consequences following them far into the future.”[51]

By 2013 sexual assault survivors were leading a prominent wave of activism that emphasized the structural deficiencies in college responses to sexual assault allegations.[52] According to Title IX activist Lexi Weyrick:

There was a severe lack of diversity in the CARE and CAPS offices where many students go looking for support after an assault, administrators clearly did not receive sensitivity training around the issue, the Title IX office did not follow the DOE policy, and appeals were only available for respondents. There were so many things wrong with the process it was difficult to know where to begin.[53]

Title IX activists pointed to caselaw, school policies, and survivor accounts that illustrated schools’ inequitable treatment of Title IX complainants, including: (1) school employees advising survivors to refrain from proceeding with their complaints;[54] (2) procedural imbalances, such as solely respondents having the right to appeal;[55] (3) survivors losing scholarships after the school would not make academic accommodations that would permit them to stay in school, such as handing in papers late or dropping a class‑in‑common with the respondent;[56] (4) retaliation against the survivor by the respondent or the larger community after making the complaint, with inadequate or no school response;[57] (5) suspension or expulsion of survivors for drinking alcohol in connection with the sexual assault;[58] and (6) survivors being unable to stay in their school and continue to access their education.[59] Over time, this movement began to also incorporate larger interest groups.[60]

The Obama DOE initially addressed public concern over sexual assault in schools through the Dear Colleague Letter guidance document (Dear Colleague Letter) in 2011.[61] The Dear Colleague Letter aimed at addressing the high rates of sexual violence in schools[62] and provided uncharacteristically specific guidance on how schools should address sexual assault.[63] The Dear Colleague Letter noted that the high rates of sexual violence in schools were “both deeply troubling and a call to action for the nation.”[64]

The Dear Colleague Letter made well-documented changes to Title IX enforcement and implementation.[65] Then-Vice President Joe Biden noted, “We are the first administration to make it clear that sexual assault is not just a crime, it can be a violation of a woman’s civil rights . . . .”[66] The Obama Administration understood that in order to tackle the problem of sexual assault on campuses, the Administration had to contend with a legacy of lax DOE enforcement,[67] the reluctance of survivors to come forward for well-founded reasons[68] including institutional betrayal,[69] and the incentives for schools to minimize the problem on their individual campuses due to the resultant bad publicity.[70] While the Dear Colleague Letter addressed these critical issues via detailed policies, it did not provide any such suggested policies or frames for schools to address the complex intersections of identity and sexual assault on college campuses; indeed, it did not mention race even once.[71]

Between 2011 and 2016, the Obama Administration’s Title IX guidance documents reflected Title IX’s civil rights purpose and general equality goals and reminded schools that they had a legal obligation to address sex-based discrimination in their institutions. These guidance documents prohibited schools from continuing to provide only one party with procedural rights and aligned the standard of proof with civil rights statutes through mandating use of the preponderance of the evidence standard.[72] However, they did this without an intersectional focus; a key weakness in their approach therefore was that it was largely undifferentiated by consideration of identity.[73]

For some, the Obama Administration’s changes led to a swift backlash.[74] Opponents of the new approach criticized the Obama Administration for stacking the deck in favor of the complainants and trammeling accused students’ due process rights,[75] rights they often inaccurately conflated with those of a defendant in a criminal case.[76] Others, including 116 law professors in a 2017 White Paper, pointed out that the Obama Administration’s enforcement of Title IX in sexual harassment cases was legally consistent with previous Administrations’ enforcement, both under Republican and Democratic presidents, dating back to the mid-1990s.[77] Courts and public opinion were actively grappling with these arguments when the Trump Administration came into power.[78]

B. The DeVos Guidance Documents

1. Contours of the Changes.

The DeVos DOE aimed its new rule at addressing its inaccurate narrative of an epidemic of false or overblown accusations.[79] In the words of Candice Jackson, then‑Acting Assistant Secretary of OCR, “the accusations—90 percent of them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”[80] As a result of focusing on protecting allegedly wrongfully accused respondents and the unsupported belief that 90% of sexual accusations are of limited veracity, the 2020 Rule created a set of procedures that are out of step with the equality mandate of Title IX, the educational context in which Title IX is implemented, and with other civil rights laws enforced by DOE. While a fair process is critical to Title IX disciplinary decision-making, these new procedures are simply not calibrated to the educational context.

In crafting the 2020 Rule, the DeVos DOE turned to courtroom-driven models, with an emphasis on using civil and criminal law courtroom procedures to ensure fairness. As detailed infra, the assumption that more procedure equals more protection and more fairness for all respondents, regardless of identity, is highly problematic.[81]

Given the breadth of the changes imposed by the 2020 Rule, Chart One below summarizes and highlights selected major changes, indicating which changes are linked to a general civil courtroom model and which changes are linked to a general criminal model.[82]

2. Chart One: Mandatory Adversarial System Changes in the 2020 Rule.

The 2020 Rule Prior Title IX Requirement? Civil Model? Criminal Model?
Mandatory live hearing.[83]
Mandatory direct, live adversarial cross‑examination.[84]
Decision-maker required to use legal system terms of art during the investigation and at a live hearing including: inculpatory and exculpatory evidence, legally relevant evidence, and legally acceptable contours for cross-examination questions at the hearing.[85]
Advocate/attorney for the live hearing for the respondent (as well as complainant) provided at no cost.[86] [87]
Criminal definition of sexual assault.[88]

The changes in the 2020 Rule have removed the traditional discretion given to schools in crafting the specifics of their investigatory process. Previously, schools were permitted latitude when structuring their investigatory models provided that they furthered Title IX and they met the core principles of being “prompt and equitable.”[89] Over time, OCR guidance documents provided more details on how to implement these principles, such as ensuring “[a]dequate, reliable, and impartial investigation of complaints,”[90] but schools were nonetheless, in the main, permitted to structure their procedures in a manner that was effective for their community. As the 2001 Guidance explained, “[p]rocedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures.”[91] As a result, by the time of the 2020 Rule, schools were using a variety of models ranging from the nonadversarial route of having the case handled by a trained Title IX investigator to use of quasi-courtroom adversarial models.[92]

However, under the 2020 Rule, when it comes to sexual harassment, schools are no longer permitted to use models other than an adversarial, quasi-criminal courtroom-based model, in which they are expected to utilize legal yardsticks and terms of art. There are now mandated courtroom-like procedures and guidelines intended to create fairness but without the guidance, training, or infrastructure that enables courts to routinely make those decisions.

In addition to changing Title IX through mandating use of a quasi-criminal courtroom model, the DeVos DOE also imposed additional requirements, separate requirements, or both, on sexual harassment complainants as compared to those required for discrimination in education based on other categories and for other forms of sex-based discrimination. These changes further move Title IX away from traditional education-based civil rights laws. Chart Two highlights some of these important new Title IX requirements and compares them to both prior Title IX standards and current Title VI ones.

3. Chart Two: The Singling Out of Title IX.

Standard in 2020 Rule Old Title IX Standard Standard under Title VI
Harassment must be severe, pervasive, and objectively offensive.[93] Harassment must be severe, pervasive, or persistent.[94] Harassment must be severe, pervasive, or persistent.[95]
Requirement of “actual knowledge” of the harassment.[96] Actual or constructive knowledge.[97] Actual or constructive knowledge.[98]
School must respond in a manner that is not deliberately indifferent.[99] School must respond with prompt and effective action to end the harassment and prevent it from recurring.[100] School must respond with prompt and effective action to end the harassment and prevent it from recurring.[101]

Taken together, the changes detailed in the two charts show how fundamentally the 2020 Rule has reoriented sexual harassment claims under Title IX. Unlike other civil rights statutes enforced by DOE, Title IX enforcement of sexual harassment now requires mandatory use of adversarial quasi‑criminal courtroom models coupled with stringent new procedural hurdles for complainants to surmount that seriously limit the conduct that can now be covered under Title IX.

IV. Theoretical Underpinnings

To adequately analyze the changes to the 2020 Rule, it is critical to understand that they are fundamentally driven by two core and interrelated concepts. First, rape exceptionalism: the tradition of imposing different standards on those alleging sexual assault; and second, a criminal-law based model for procedural due process in the education context that I call the due process distortion.[102] These ideologies found a voice in the backlash to the Obama Administration’s Dear Colleague Letter and have become more prevalent among scholars and some courts.[103] Through the 2020 Rule, these two ideologies take constructions of fairness and equality in a direction that contradicts Title IX’s goals and aims, and are misplaced in the education setting.

A. Rape Exceptionalism

Rape exceptionalism, a term developed by scholar Michelle Anderson, has its roots in criminal law. Rape exceptionalism posits that the tradition of imposing more onerous requirements on individuals who allege sexual assault than those who allege other criminal offenses is a critical component of modern rape response, notably current treatment of sexual assault on college campuses. Anderson cautions that this trend is troubling because “[u]nique hurdles for sexual assault victims and special process protections for those accused of sexual misconduct are unfair and harken back to a time when rape victims faced unique hurdles in criminal prosecution.”[104]

In the past, survivors of sexual assault had to satisfy additional criteria, above and beyond those imposed on survivors of other crimes, before the criminal justice system would credit their allegations.[105] Courts did not consider the survivor’s testimony, standing alone, sufficient. The testimony had to be corroborated, survivors had to demonstrate that they had resisted to the “utmost of [their] physical capacity” during the alleged assault, and “a cautionary instruction in rape law warned jurors to treat the complainant’s testimony with skepticism.”[106] This unequal treatment reflected a core belief that survivors, who at the time were assumed to be White women, were inherently less credible.[107] Rape exceptionalism is part of survivors’ low willingness to report[108] and the low rate of prosecution.[109]

Rape exceptionalism has not affected all survivors in the same manner. Its burdens have always disproportionately and differentially impacted individuals based on their identities.[110] In this Article, I analyze these impacts primarily through the prism of race, while fully acknowledging and recognizing that discrimination occurs among many other axes of identity, such as class, disability, sexual orientation, gender identity, and other marginalized identities.[111] By acknowledging the differential impacts of race on rape exceptionalism, I do not mean to imply in any way that the experiences of women of color can be derived from the experiences of White women or that White women’s experiences should be the lens through which we analyze rape exceptionalism.[112] In the eloquent words of Angela Harris, such essentialism “reduce[s] the lives of people who experience multiple forms of oppression to addition problems: ‘racism + sexism = straight black women’s experience,’ or 'racism + sexism + homophobia = black lesbian experience.”[113] Rather, I hope to add my voice to those arguing that the experiences of women of color are critical to a full response to sexual assault in schools and that, these experiences, to the extent they can be grouped,[114] have been marginalized in dominant discourse, including that around rape exceptionalism.[115]

The experiences of women and sexual assault have all too often been framed by the experience of cisgender, heterosexual White women. In the words of noted scholar Angela Onwuachi‑Willig, the intersection of race and gender highlights how “the unique form of racialized sexism that women of color face routinely gets marked as outside of the female experience” because “the realities of white women’s lives . . . still define the female experience.”[116] Historically, Black,[117] Indigenous, and People of Color (BIPOC) women,[118] especially Black and Indigenous women, have been targeted and burdened by rape exceptionalism, with the legal system historically excluding Black women from even having the right to allege rape.[119] The long, violent, and shameful history of forcibly denying BIPOC women agency over their own bodies and sexualities is a critical component of the history of sexual assault in the United States, notably the institution of slavery, which normalized and legitimized the rape of enslaved Black women.[120]

The powerful vestiges of this violent history are apparent in the clear overlap between marginalized identities and sexual assault in the few intersectional studies that exist. Researchers are increasingly studying how individuals with marginalized identities are vulnerable to sexual assault and reasons for the increased rates of sexual assault within marginalized populations.[121] The available data in the larger societal context show increased vulnerability for BIPOC women and girls, especially those who are multiracial,[122] with heightened vulnerabilities associated with those who are bisexual and individuals with disabilities.[123]

In the educational institution context, there is limited data regarding the impact(s) of race, gender identity, and sexual orientation.[124] The generally accepted studies, differentiated solely by binary biological sex and undifferentiated by other identities such as race,[125] have found that about 20–26% of female students, 23.1% of transgender, genderqueer, and nonconforming students, and about 6.9% of undergraduate male students have been sexually assaulted.[126] Students with multiple marginalized identities are even more at risk.[127] However, within these statistics, there are still significant unexplored areas about how race intersects with these and other marginalized identities in the education context.

BIPOC female survivors of sexual assault[128] have traditionally been less likely to be believed,[129] their cases have been less likely to be prosecuted,[130] and perpetrators of sexual assault against Black survivors receive lighter criminal sentences.[131] These are powerful structural barriers blocking acknowledgment of the sexual harm of Black women and resultant trauma it creates.[132] Studies have shown the many ways in which Black women are discredited and discounted as sexual assault survivors:

The belief that Black women are unrapeable continues to exist. For example, in several studies, researchers asked college students to respond to hypothetical scenarios that involved sexual assault. When the victim was a Black woman, students were less likely to define the incident as date rape, to believe the crime should be reported to the police, and to hold the perpetrator accountable. In addition, students rated a Black date rape victim, when compared to her White equivalent, as less truthful and more responsible for her sexual assault. It also appeared that Black rape survivors were held more responsible for their victimization, regardless of the perpetrator’s race. These data suggest that Black women’s long history of sexual victimization, coupled with racial stereotypes, exacerbated their rape experiences.[133]

Multiple harmful stereotypes[134] about the sexual/bodily availability and sexuality of different groups of women of color[135] contribute to this marginalization[136] and erasure.[137] These stereotypes have their roots in the violent histories of colonialism, occupation, and enslavement.[138] For Black women, there are multiple harmful stereotypes signifying promiscuity and availability.[139] Native-American women have been stereotyped as being “sexually depraved.”[140] Asian-American women have been viewed as submissive, exotic, and erotic by nature.[141] Latina[142] women have been stereotyped and portrayed as “hot [and] overly sexual”[143] while also being “perceived as readily available and accessible for sexual use.”[144]

In fact, “each subgroup of women of color can point to intersectional stereotyping of their group as prostitutes or promiscuous.”[145] These stereotypes render women of color vulnerable to sexual violence in the first instance and interact with rape exceptionalism in especially damaging ways that operate to normalize sexual violence against women of color.[146]

Kelsey Scarlett, a Title IX activist, noted:

These stereotypes function to establish who is able to be raped and who is not. Fundamentally, they essentialize who is allowed to be a survivor. For women with marginalized identities, stereotypes act to dehumanize their identities, eradicating the individual and establishing a monolith. They replicate patterns of thinking that sexual assault only counts for certain groups of women, that a marginalized woman is only an experience not a person. These racialized and gendered stereotypes about women of color have serious negative impacts on their ability to seek assistance, to be believed, and for their agency to be recognized. The longer these stereotypes continue to be disregarded or go unaddressed, the more validated respondents are in believing that they are doing nothing wrong when they sexually assault women of color.[147]

Racial discrimination compounds with sex discrimination to create complex interlocking barriers to justice for BIPOC female survivors of sexual assault, and this pattern of discrimination within discrimination remains strong today.

Men of color, whether as complainants[148] or as respondents, are also harmed by racialized gender stereotypes,[149] and it is necessary to recognize and consider the full implication of both individuals’ races within this context.[150] Through the work of Athena D. Mutua[151] and Darren Hutchinson,[152] among others, multidimensionality theory[153] has illustrated how “individuals whose identities meet at the intersection of privilege and disadvantage—for example, male and black—may encounter unique forms of discrimination and subordination, depending upon context.”[154] While being male is typically associated with privilege,[155] dominant narratives stereotype Black men as violent and sexually dangerous—stereotypes that also have their roots in slavery and were reinforced through centuries of racism.[156] As Henry Louis Gates Jr. detailed, stereotypes of Black men have been “refigured as the congenitally inveterate rapist, projected onto black male human beings, trapped by their ‘nature’ in a permanent state of lust, poised to violate, unpredictably and spontaneously, the purity and sanctity of white virginal womanhood.”[157]

This dynamic has been studied in the criminal sexual assault context and reveals that the defendant’s race vis-à-vis the victim affects the outcome in criminal sexual assault cases. When defendants of color commit the “intra-racial crime of sexual assault” they face more lenient treatment than White defendants.[158] An important corollary is that “defendants of color who were accused of primarily inter-racial crimes were treated more harshly.”[159]

In addition to in the criminal system, structural racism plays an important documented role in inequitable discipline in K–12 schools.[160] In the college context, we do not know enough about this intersection because there is limited data on identity in Title IX sexual assault claims.[161] This is in part because educational institutions use the Family Educational Rights and Privacy Act (FERPA) and other legal protections to redact the names and identifying information of both parties.[162] This intersection must be studied because it is critical to determine how race interacts with sexual assault procedures in educational institutions. Increased protections for respondents generally are not guaranteed to translate to the protection of all respondents, notably those that are men of color.[163] Without an explicit consideration of race, such a system could continue to replicate bias and discrimination.

Further, the rights of complainants and respondents of color are not necessarily oppositional in theory[164] or in practice,[165] and in fact can operate as a false dichotomy that can erase women of color as survivors.[166] As Kimberlé Crenshaw has pointed out, “[t]he primary beneficiaries of policies supported by feminists and others concerned about rape tend to be white women; the primary beneficiaries of the Black community’s concern over racism and rape, Black men.”[167] The concern, as Crenshaw elaborates, is that recognizing discrimination against perpetrators of color cannot come at the expense of Black survivors, “who must both confront racial bias and challenge their status as instruments, rather than beneficiaries, of the civil rights struggle [for Black men].”[168] The goal is to create fair systems for all complainants and respondents, which necessarily encompasses the concept that any fair system must be one in which a student does not face race-based discrimination, whether as a complainant or a respondent.

The complex interconnection between race and Title IX enforcement is shown by the correlation between the rise in concern over respondents’ rights[169] at the same time that more robust Title IX enforcement started to encompass investigations against a larger number of White male students:

As Title IX has extended beyond athletics . . . public sympathy for the college men accused of sexual assault has grown, as have concerns about unfounded accusations. Just as racial assumptions have driven the harsh condemnation of paradigmatic rapes, so have they fueled sympathy for men of race and class privilege who are accused of sexual assault but who do not fit the prototype.[170]

DOE’s 2020 Rule implements a number of criminal-law based assumptions and implicates racialized gender/gendered race stereotypes about sexual assault. These assumptions fail to account for how the identities of both complainants and respondents could factor into a fair system that is compliant with Title IX.

The changes in the 2020 Rule must be viewed in conversation with rape exceptionalism and its underlying assumptions about the nature of sexual assault, including credibility and which party in a sexual assault case deserves protection, a notion which itself often turns on the identities of survivors and respondents.[171] After all, the DeVos DOE explicitly signaled that it believed core tenets of rape exceptionalism, including questioning the veracity of those who allege sexual assault.[172] These beliefs are directly reflected in the higher burdens placed on complainants in Title IX cases than on complainants under other civil rights statutes enforced by DOE and even other forms of sex discrimination covered by Title IX.[173]

B. The Due Process Distortion

Rape exceptionalism and the push for quasi-courtroom models have found a home in a criminal-law based model for procedural due process in the educational context that I call the due process distortion. The due process distortion argues for criminal law-based procedural due process rights in the sexual assault context that are most commonly linked to three separate, yet intertwined, propositions. These propositions hold that criminal due process is required in all schools, whether or not the due process clause actually applies to them,[174] because of: (1) the criminal nature of the conduct underlying the accusation against the respondent;[175] (2) the charge’s very serious potential consequences,[176] including expulsion, which is the highest sanction that a school can impose;[177] and (3) the presumed reputational impacts of sexual assault allegations.[178]

To be sure, some form of procedural due process applies in public schools when the state (through the public schools) acts in a way that could deprive an individual of life, liberty, or property.[179] Courts differ on the source of due process rights in the Title IX context for post-secondary schools,[180] with some holding that it stems from a liberty interest[181] and others basing it on a property interest.[182]

The nature of the underlying interest to be protected is a critical factor when determining what procedural rights are due in any given context. Unlike many other constitutional rights, procedural due process rights are not fixed or rigid. “They are fact‑dependent and context-specific.” They attach according to the “nature of the deprivation at stake”; “the greater the potential deprivation of rights the greater the process that must be provided.”[183]

Schools cannot imprison students; at most, they can expel them. Thus, the procedures that should be required by due process when one is accused of sexual assault in the educational setting are vastly different than when one is accused of sexual assault in a criminal court.[184] Procedural due process provides protections calibrated to the deprivation that the state actor[185] is seeking: “At most, the educational institution’s sanction is to deny the student the ability to continue his education at that particular educational institution. . . . Simply put, a disciplinary hearing at an educational institution is not a criminal trial and thus criminal [due process] protections are not mandated.”[186]

The primary procedural due process argument in the Title IX educational context is that, “given the serious (and potentially criminal) nature of sexual assault allegations, the procedural due process protections of a criminal trial, with its full panoply of rights and protections, including adversarial cross-examination and representation by counsel, should be utilized in the educational setting.”[187] Put another way, this deceptively simple argument is that because sexual assault is potentially criminally punishable, fairness requires that those accused of sexual assault in an educational setting be provided with the rights and protections afforded to a defendant in a criminal trial. This proposition ignores the reality that schools “do not convict people of crimes, impose criminal sanctions, or award damages.”[188]

Further, scholar Nancy Chi Cantalupo has expertly detailed, in a compelling series of articles, the multiple harms that flow from using the criminal model in the educational setting.[189] First, “[t]his conflation fundamentally undermines Title IX’s central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.”[190] Use of a criminal model shifts the focus from the protection of all students to the protection of the student accused of wrong-doing.[191] Second, the criminal model allows for an imbalance in rights afforded to complainants and respondents.[192] Given the power of the state and the possibility of loss of life or liberty through incarceration,[193] and the serious collateral consequences of a criminal conviction (such as the necessity of registering as a sex offender, restrictions on voting rights, restrictions on the right to possess a firearm, or a combination), the criminal system rightly focuses on providing procedural protections for the accused.[194] Third, the criminal model provides a different set of mandated requirements, including the standard for the burden of proof,[195] that are not consistent with the civil model routinely used for—and more appropriate for—civil rights violations.[196]

The due process distortion conflates the potential criminality of sexual assault with the need for criminal law due process in the entirely different setting of a school disciplinary proceeding. The punishments, including collateral consequences, in each of these settings are qualitatively different in kind and scale and therefore demand very different levels of procedural due process.[197] In the school setting, the highest possible sanction is expulsion, which is not a common result of a report of sexual misconduct.[198] Where expulsion is imposed, the broader consequences are typically more circumscribed than in the criminal context due to FERPA and other laws protecting students’ disciplinary records and the fact that student disciplinary records are not inquired about as a matter of course in the same way that criminal records are.[199] By contrast, in a criminal sexual assault case, collateral consequences are more widespread: a conviction can implicate defendants’ right to vote and right to possess firearms, affect their ability to get employment, affect their ability to get public housing, and defendants could be required to register as sex-offenders, which often circumscribes where defendants can live and work.

It is critical that schools provide fair systems given the important rights at stake for complainants[200] and respondents.[201] However, internal school Title IX disciplinary proceedings are connected to a different set of consequences than criminal prosecution and the procedures can, and should, be calibrated to that context.

The due process distortion also alters the fundamental nature of the “what process is due” inquiry by tying it to the alleged conduct that the individual is accused of, rather than the proper focus on the potential deprivation at stake.[202] Proponents of the due process distortion argue that this is warranted because accusations of sexual assault, even in the education context, are assumed to carry the possibility of serious reputational harm for the respondent and therefore require quasi-criminal procedural due process protections.[203] This reputational harm argument inappropriately focuses on reputational effects for the respondent, rather than on both students[204] as is appropriate in Title IX. In addition, the alleged harm is qualitatively different than in the criminal context. In the school disciplinary context, FERPA and other statutes protect students’ confidential disciplinary information from the general public, and this information is not commonly required, for example, in employment and housing applications. In the criminal context, a conviction for sexual assault is often public record and can be a part of routine inquiries for employment and housing, and therefore be available to a broader section of the community. In both contexts, there is potential reputational harm, and procedural due process calibrates the protection to the harm.

The potential for reputational harm is an important consideration for any fair system to weigh. In the procedural due process context, the legal argument flowing from the concern about special reputational harm due to an accusation of sexual assault has been addressed under the “stigma plus” argument. Overall, that line of argument has been rejected in the Title IX context[205] and others.[206] For example, in Doe v. Alger, the respondent argued the school violated his procedural due process rights when the school noted on his transcript that he had been disciplined for a conduct code violation involving sexual assault.[207] He argued that this stigma would harm his reputation, limiting his educational and employment opportunities in the future.[208] The court acknowledged there was reputational harm but held that this did not mandate a different level of constitutional protection in public postsecondary schools:

The standard established in Paul, which has come to be known as “stigma plus,” requires a reputation injury (the stigma), accompanied by a state action that distinctly altered or extinguished a legal status or right (the plus). . . . [T]he test after Paul is not one of the level of sting to the stigma or the severity of the consequences; rather, if there is stigma, then the court must also determine whether there is also the “plus”—a legal right or status that was altered or extinguished. . . . [O]utside of the employment context, Paul instructs that there must be a statutory right that was altered or extinguished . . . . [T]here is no statutory right to be a public college or university student.[209]

There is no question that there are potential reputational consequences for respondents in school sexual assault disciplinary cases. However, these potential reputational consequences, or stigma, do not automatically lead to criminal due process protections as a matter of constitutional law in the education context. Accordingly, because there is no constitutional basis for criminal due process protections in this context, a fair disciplinary process should incorporate these consequences into a thoughtfully calibrated system[210] without importing criminal law procedures into the education setting.

Notably, the due process distortion has centered on Title IX sexual harassment, and only on Title IX sexual harassment. Many of those most actively arguing for quasi-criminal procedural due process in schools are doing so only in the context of Title IX sexual assault proceedings and not for other school disciplinary proceedings that address potentially criminal activity such as drug-related activity and simple assault.[211] Additionally, proponents do not argue for the same level of process for disciplinary cases in which a student could potentially face the same disciplinary sanctions as for sexual assault.[212] Nor are they suggesting it for other types of conduct that could also impose stigmatizing or reputational consequences, such as plagiarism or race-based discrimination.[213] These due process arguments are inextricably linked to qualms about the veracity of sexual assault complainants. This is a classic example of rape exceptionalism: treating complainants differently because of the nature of the harm they are alleging.[214]

V. Principles

The misplaced focus on rape exceptionalism and the due process distortion has led to the transformation of “classrooms into courtrooms.”[215] The 2020 Rule has imposed a mandatory quasi‑criminal courtroom regime on schools’ internal investigatory and disciplinary Title IX processes for sexual harassment cases that is detrimental to a school’s ability to meet its Title IX obligations and continue to function as a primarily educational institution.[216]

In the investigatory context, the 2020 Rule departs from the fundamental understanding that our nation’s colleges are meant to function as educational institutions rather than as quasi‑criminal courts of law. The 2020 Rule has deleterious impacts not only on Title IX enforcement but also on educational institutions.[217] Further, these changes set Title IX apart from enforcement of other federal civil rights anti-discrimination statutes and from other forms of sex discrimination under Title IX. In fact, in the name of Title IX, the 2020 Rule imposes unequal burdens on those alleging sexual harassment, undermining the central purpose behind Title IX.

The following principles can guide DOE and educational institutions in returning to policies that effectuate Title IX’s purpose. With the advent of the Biden/Harris Administration, there is opportunity to return to the goals of Title IX and implement a fair standard that is attuned to educational institutions, accounts for how sexual assault impacts their communities—notably those with marginalized identities—and returns the focus to the equality goals of Title IX.

A. Principle One: Classrooms Not Courtrooms

Educational institutions are, at base, learning communities. As learning communities, they focus on creating environments and structures that are conducive to meeting their educational goals. They create a set of rules and codes of conduct that students and community members are required to abide by as a condition of remaining in good standing. These rules are typically not punitive in nature[218] but rather intend to keep the community both safe and focused on its educational mission.[219]

Educational institutions are not courts of law.[220] They do have the authority and the responsibility to determine whether a community member has engaged in conduct that has either violated clearly expressed internal codes of conduct and standards or implicated anti-discrimination laws, such as Title IX, and to determine what the consequence should be, if any.[221]

The 2020 Rule’s disciplinary rules are a significant departure from both prior practice and caselaw. Courts typically carefully defer to educational institutions when they are acting within their educational role to protect their community:

Educational institutions are entitled to deference when they are exercising their authority to make operational decisions, including maintaining discipline. Discipline and adherence to community standards are part of the educational process, and therefore educational institutions are well-suited to implement these goals. As such, educational institutions have broad authority to make and implement their rules, provided that they don’t conflict with other laws, including constitutional law. This deference is appropriate given that education has historically been the province of the state government and courts are therefore reluctant to intervene.[222]

Courts are careful to protect educational institutions from turning into extensions of the court system. As the Court in Goss explained, “Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness.”[223] Through the 2020 Rule, DOE is directly mandating the importation of a quasi-criminal, courtroom-based process rather than permitting schools to develop systems compliant with Title IX principles that are also suited to their community.

Educational institutions are uniquely situated with respect to addressing the problem of sexual assault. Schools have legal obligations under Title IX and are often the sole actor able to offer complainants the remedies that enable them to fully access their educational experience. It is precisely this unique orientation that makes the preservation of the school’s Title IX role so critical. The recent effort to import quasi-criminal courtroom procedures and standards into schools threatens this role and reduces the likelihood that complainants will receive the remedies they need to retain their equal access to education.[224]

Survivors of sexual assault and sexual harassment often turn to educational institutions because unlike the civil or criminal court systems,[225] these educational institutions are community‑based methods to achieve their goals, including staying in school.[226] Students often come forward because they are seeking safety for themselves and the larger community, rather than wanting the respondent to face criminal charges.[227] School‑based remedies are available to student complainants through accessing the school’s internal systems, including the student code of conduct and disciplinary mechanisms.[228] The process can range from informal (contacting individual professors for accommodations) to formal (making an official complaint to the Title IX Coordinator or filing a complaint through the Title IX code).[229]

Schools can most directly, and often exclusively, provide education-related remedies, including a combination of: waiving requirements to allow the complainant to change classes without penalty; allowing complainants to move their residence off‑schedule; providing education-related accommodations, such as extensions on course assignments; or requiring that respondents stay away from complainants, change class, or move their residence.[230] Students are entitled under Title IX to seek these school-specific remedies in order to continue to equally access their education without sex-based discrimination.[231]

Title IX does not mandate that schools’ procedures mirror those of a courtroom, and students who request assistance are not seeking a court-like process. Instead, schools are expected to create a fair process to maintain their own educational focus consistent with their community that also meets the standards of fairness that are so central to Title IX.[232]

By contrast, the 2020 Rule mandates an explicitly adversarial model requiring schools to change their fundamental orientation towards student disciplinary procedures while simultaneously learning a whole new set of legal adversarial skills.[233] The 2020 Rule adopted the most adversarial model for questioning evidence in the form of live cross-examination and requires schools to use it.[234] The rigidity of the system prevents schools from using their knowledge of their communities to investigate and to craft responsive disciplinary policies.[235]

While courts have long warned against turning classrooms into courtrooms,[236] the 2020 Rule is nonetheless transforming school-based investigations of Title IX sexual harassment allegations into quasi-criminal legal trials. The 2020 Rule requires schools to change their educational investigatory models to that of a courtroom hearing, develop trial-like disciplinary systems, and employ advocates for students, which will require a cascade of changes to how schools structure and conduct their investigatory processes.[237]

In order to meet the requirements of the 2020 Rule, schools will either have to require their nonlegal employees to conduct these quasi-criminal courtroom proceedings or deputize in-house legal counsel or hired attorneys to conduct them. Should a school choose to utilize its nonlegal employees, it will have to train those employees on such issues as the fine points of legal relevance, distinctions that characterize both criminal and civil trials and are rife with controversy and nuance.[238] These employees will also have to determine how to apply the rape shield laws and what testimony to permit. The complexity of trials generally, and sexual assault cases specifically, increases the risk that employees will make legal errors that will expose the school to liability and the students to harm.

For these reasons, many schools may turn to in-house legal counsel or hired attorneys to conduct these proceedings. However, given the murky and unclear guidance in the 2020 Rule, it is not a given that lawyers will necessarily make the process smoother or more efficient. In fact, a comment from ninety-three law professors to the proposed 2020 Rule indicated eighty areas of concern[239] where the proposed rule did not give enough “guidance to recipients about their new obligations, to victims and alleged harassers regarding their rights and responsibilities, and to the public as a whole.”[240] The 2020 Rule is neither simple nor clear, and adding lawyers to the mix will not necessarily be a solution that results in clarity or more effective implementation; instead, it will likely result in greater costs for individuals and for schools.

While it may seem fair to bolster Title IX procedures, merely substituting more process for fairness will not necessarily result in greater equality. In fact, the Rule’s structure lends itself to amplifying inequality in the system. Rather than the school undertaking full responsibility for the investigation and adjudication of complaints, students’ advocates will play a key role in the process, notably at the mandatory live hearing. While schools are required to provide an advocate for all student complainants and respondents, the advocate does not need to be an attorney.[241] Therefore, this system will advantage those students who have the resources to hire a private attorney.[242]

Additionally, the mandated quasi-criminal courtroom system will amplify the adversarial nature of both the proceedings and of the school’s position vis-à-vis its students generally. It will impose a number of financial costs in terms of training, time, and achieving expertise in legal issues,[243] and it will most likely require schools to shift from the usual practice of having community members (faculty, staff, students, or a combination) determine responsibility and discipline.[244]

These new requirements of quasi-criminal courtroom procedures coupled with scant and murky guidance[245] will lead to confusion, a vast use of school’s resources, and numerous appeals. In essence, schools will now have to police the fine contours of a trial as if they are courts of law. These one-size-fits-all, mandatory quasi-criminal courtroom procedures for sexual assault cases pits schools in an adversarial position against both complainants and respondents. This is a sea change and reorientation of the school’s role regarding students.

Critically, this reorientation is required solely for Title IX proceedings and not for other school investigations involving potentially criminal charges such as assault, drug possession, or destruction of property.[246] It also does not apply to charges involving concerns of reputational harm such as plagiarism, cheating, or race-based discrimination.[247] Finally, it singles out sexual harassment as compared to discrimination based on other protected categories, including other forms of sex discrimination.[248]

The results of a litigious procedure are not necessarily in the best interests of any of the parties in this context. Educational institutions will have to rebuild trust and relationships between those involved as witnesses in this high-intensity adversarial process. The court-like process for the respondent could heighten reputational concerns as more individuals become involved in the process, and there is a greater chance that a quasi-criminal trial will lead to complainants leaving school, thus reducing the chance of a just result. Finally, use of adversarial systems tends to harden positions over time, increasing the likelihood that educational institutions will start to impose more severe sanctions on respondents and be less receptive to processes wherein the parties work out an agreement, such as restorative or transformative justice.[249]

Undoubtedly, Title IX proceedings require fairness, yet those advocating for the 2020 Rule model must address the fact that this model is inextricably linked to rape exceptionalism and the due process distortion. These advocates circumscribe their procedural concerns to the sexual assault context without addressing why or whether these protections should apply to other disciplinary situations on campuses involving similar quasi-criminal allegations, or portending similar disciplinary sanctions or alleged reputational harm.[250] The concerns are squarely aimed solely at sexual assault and are therefore neither fair nor just. It is possible to avoid the political seesaw and instead build a carefully constructed framework for Title IX adjudication that can fairly and successfully balance the different interests involved.[251]

B. Principle Two: Protecting All Students

Title IX implementation, notably under the 2020 Rule, has been increasingly viewed through the dual lenses of the due process distortion and rape exceptionalism. These lenses, whether imposed externally by the 2020 Rule or internally by the schools themselves, or both, have shaped how schools think about the problem of sexual assault on their campuses and how they frame their responses.[252] This has led to, among other consequences, the importation of quasi-criminal courtroom systems, scrutiny of complainants, and increased respondent-focused protections.[253] Importantly, neither lens incorporates an intersectional focus and therefore neither lens requires schools to investigate patterns of discrimination on their campuses and how sexual assault intersects with marginalized identities. In fact, schools have traditionally approached “sexual violence from an identity-neutral and power-evasive perspective.”[254] However, schools have Title IX obligations to all students, of all identities, and OCR must mandate that they meet them. Schools need to break out of their traditionally limited approaches to create systems that recognize the reality of how sexual assault functions on the ground on their campuses for all their students.

1. Studying Who Is at Risk.

Dominant social narratives around campus vulnerability to sexual assault often center on the single-axis of White female survivors:[255] “White women students are foregrounded in the majority of college sexual violence prevention and response efforts and in media stories concerning sexual violence on campus.”[256] These dominant narratives ignore the reality that campuses are diverse places made up of individuals with many different identities, all of whom are protected by Title IX. The narratives are also often coupled with a purportedly “race- and power-neutral perspective”[257] that has led to approaches to sexual assault that have often failed to account for the experiences of those who do not fit the dominant identities or stereotypes of the sexual assault survivor. For example, the push by schools to criminalize sexual assault on campuses ignores the “tumultuous and racist history of the relationship between legal systems and communities of color,”[258] and the resultant complex effects on student survivors of color,[259] including a reluctance to report when an internal school complaint is linked with a police response.[260] In addition, educational institutions produce materials about Title IX and sexual assault that “rarely examine[] race, class, or sexual orientation in relationship to sexual violence.”[261] This often sends the message to marginalized students that their lived experiences, which are influenced by race, class, and sexual orientation (among other identities), are not seen by the institution.[262]

Further, approaches under Title IX have often failed to account for definitions of sex beyond biological sex, and thus have not reflected the broader experiences of LGBTQIA+ students. Although a Title VII case, the Supreme Court’s decision in Bostock incorporated gender identity and sexual orientation within the meaning of “sex,” laying the foundation for Title IX to follow suit.[263] Approaches to sexual assault need to address these larger conceptions of gender and recognize the vulnerabilities that those who identify as men, trans*, nonbinary, gay, or a combination, face when making complaints of sexual assault,[264] including when the school reports such cases to the police.

An intersectional approach is crucial in the Title IX context to account for vulnerabilities to, experiences with, and responses to sexual assault on college campuses. Intersectionality recognizes that individuals inhabit spaces at the intersection of their identities and face differential forms of discrimination.[265] As Kimberlé Crenshaw, visionary founder of “intersectionality,” explains:

Intersectionality was a prism to bring to light dynamics within discrimination law that weren’t being appreciated by the courts. In particular, courts seem to think that race discrimination was what happened to all black people across gender and sex discrimination was what happened to all women, and if that is your framework, of course, what happens to black women and other women of color is going to be difficult to see.[266]

By intentionally focusing on the way these identities intersect and affect individuals’ lived experiences, intersectionality provides the framework to combat the erasure[267] or invisibility[268] of those with multiple marginalized identities, whose experiences are often not accounted for in mainstream narratives, including those in campus sexual assault.[269]

Thus, the first step is for OCR to require and incentivize schools to investigate, using an intersectional lens, the contours of sexual assault on their campuses.[270] Statistically, students with marginalized identities face heightened vulnerabilities to sexual harassment and sexual assault in larger society.[271] Few studies examine how marginalized identities and sexual assault interact in educational institutions so schools must examine how these dynamics affect their communities.[272] As places of learning and study, schools have the tools to research this issue and to think critically about how to gather the needed information. Schools can leverage the knowledge of those with expertise on campus to determine how to frame and ask questions. For example, the main studies on rates of sexual assault on college campuses are differentiated solely by the binary of “man” or “woman” and do not indicate whether these definitions are based on biological sex, gender identity, or other factors.[273] These terms leave important questions unasked and unanswered and also fail to incorporate the intersections of multiple identities. Therefore, in order to get an accurate assessment of vulnerability, schools must modernize both the tools that they use and the questions that they ask. This requires involving the school’s diversity, equity, and inclusion officer.[274] When schools start studying the complex intersections of identity and vulnerability, they will begin to build the knowledge to calibrate their approaches to the varied needs of those affected[275] and better structure an effective intersectional response.

2. Analyzing How Power and Identity Interact.

It is not enough for schools to study vulnerabilities and how they intersect with identity. It is also critical for schools to chart how power[276] and identity intersect on their campuses for both complainants and respondents. Tracing how power works on their campuses will assist schools with moving from a simple individual analysis of cases to a broader systemic analysis of what structures protect and/or harm complainants and respondents.[277] These structures could even be ones that are implemented by the school itself, such as placing sexual assault resources in the Women’s Center, which sends the message to those who do not identify as women that there is not a place for them within the school.[278]

Under the traditional power-neutral perspective, the dominant discourse places alcohol,[279] male athletes,[280] and fraternities[281] at the center of sexual assault prevention and response. As a result, many schools’ prevention strategies focus on alcohol policies and the monitoring of athletes and fraternities.[282] While there are clear correlations between sexual assault, alcohol, and fraternities,[283] these approaches focus more on the symptoms than on the disease. They require us to focus on individual interactions instead of the larger perspective of how power is structured in the college community.[284] They fail to answer (or even ask) important questions such as who has power within the college ecosystem, who is recognized as a survivor, and who is likely to be believed (or not believed). “[T]he conversation on sexual violence must expand to include perspectives, identities, and histories that are rarely if ever explored in the discourses on sexual violence. Furthermore, this discourse must acknowledge and center power, privilege, and oppression.”[285]

Schools must study how systems of power and privilege interact with identity and affect students in their communities in order to craft effective responses, especially within their investigatory systems. Otherwise, any strategies to prevent or respond to sexual assault on college campuses will continue to privilege those who already have the most power.[286] Given the prevalence of sexual assault on college campuses and the disproportionate rates at which individuals with marginalized identities experience sexual assault, it is crucial to locate and address the often invisible and at times insurmountable barriers and power dynamics that keep marginalized students excluded from the very systems meant to help them.[287] This should include the possibility of creating an entirely different system.[288]

3. Creating Innovative Models.

Schools have historically followed, and OCR has not addressed their following, the traditional legal model of addressing discrimination in silos; in other words, they handle discrimination cases one identity at a time.[289] Take the example of a student at a college who has been discriminated against on the basis of race and sex. This student typically will have to make two separate complaints: one for race‑based discrimination and one for sex-based discrimination. These complaints typically will be handled separately, with the student having to participate in two different investigations and hearings.[290] This process forces students to literally carve up their identities to examine each fact that occurred and ascribe it either to sex or to race. It ignores the fact that individuals, including the hypothetical students in question, can experience discrimination based on how those identities interact with each other—as discrimination that is simultaneously racialized and gendered.[291] Students who believe that the discrimination is a combination of both their race and sex must grapple with overcoming the clear, structural bias from the institution—as reflected in the two different processes—that discrimination can only occur one identity at a time.[292]

The 2020 Rule exacerbates this intersectional conflict in two ways. First, when it comes to defining what constitutes a hostile environment, it inexplicably changes the traditional “severe, persistent, or pervasive” definition[293] to that of “severe, pervasive, and objectively offensive.”[294] In doing so, it fundamentally changes what is covered under Title IX sexual harassment claims[295] by imposing additional burdens on individuals alleging sexual harassment than on individuals alleging race-based harassment.[296] Second, the 2020 Rule permits schools to depart from a “preponderance of the evidence” standard for their disciplinary systems in sex-based discrimination cases[297] while continuing to require the “preponderance of the evidence” standard for other forms of discrimination, such as race-based discrimination.[298]

Therefore, in harassment cases, students who think that they have been discriminated against on the basis of sex and race have to not only carve up their identities in deciding what discriminatory acts ascribe to which identity but also have to satisfy different legal standards if they choose to move forward with both a sex-based discrimination claim and a race-based discrimination claim. As Nancy Chi Cantalupo explains:

[I]f a school has adopted different evidentiary standards for sexual and racial harassment, what happens when a woman of color is sexually and racially harassed? What standard will be used if she experiences racialized sexual harassment or sexualized racial harassment? Will she be a woman first or a person of color first? Which of her identities will the school declare to be the important one?[299]

Additionally, because such an individual would face a higher burden in proving her sex-based claim, she is incentivized to make a complaint based on race first or on race only. This will further disincentivize reporting sexual assault. The lack of reporting already impairs educational institutions’ ability to determine the contours of the sexual assault problem both nationally and in their institutions, and therefore this siloed approach, which is amplified by the 2020 Rule’s new standards, further hampers overall Title IX enforcement.

OCR should mandate that educational institutions create systems that allow individuals to make intersectional complaints based on their lived experiences. While the court system has been resistant to plaintiffs making combined-identity claims,[300] educational institutions are not under the same set of constraints and can be more flexible. OCR and schools can leverage current research on the intersections of identity, power, and sexual assault in order to craft investigatory systems that are responsive to the reality that students inhabit multiple identities. This should include moving beyond identity silos to build systems that can address, in the same process, the multiple forms of discrimination that a student might be facing.[301]

OCR’s Title IX guidance and enforcement should start to overtly recognize that as places of learning and research, schools should be expected to investigate, study, and develop systems that are responsive to the intersectional realities their students inhabit. In so doing they can leverage their skills and position to understand the problem of sexual assault in all its complexity on campus.[302] From there, education and prevention efforts can be developed that better address students’ particularized needs and vulnerabilities. The principles of intersectionality and the data that schools uncover must guide the work moving forward[303] so that they can effectuate Title IX’s promise for all who are affected by sex-based discrimination.

VI. Conclusion

Title IX is about ensuring equal access to education based on sex. In this moment of transition, the new Administration and key stakeholders should refocus on returning to the core aims and principles of Title IX, separate and apart from Title IX’s politicization. This requires a strong commitment to Title IX’s principles of equality and access. Critical examination of the role that identity has played in Title IX implementation and enforcement is a key component of effectuating the promise of Title IX in today’s reality.

Through the 2020 Rule, the DeVos DOE fundamentally altered the relationship between schools and their students when it comes to sexual harassment and Title IX. By incorporating mandatory quasi-criminal courtroom investigatory models into Title IX adjudication, the 2020 Rule forces schools to stray from their educational purpose and transforms classrooms into courtrooms. Relying on the due process distortion, the 2020 Rule imports quasi-criminal due process rights into the educational context, dissuading complainants from engaging in the Title IX disciplinary process and reducing the likelihood that complainants receive the remedies they need to retain their equal access to education.

At its core, it is critical for all interest groups—DOE, schools, complainants, respondents, and advocates—that the process that is used is one that is fair and that they can have confidence in. There is a mismatch between schools’ educational missions and the 2020 Rule’s quasi-criminal courtroom requirements. This is not to say that schools can use any process or abandon fairness. Rather, the process that is used should be one that is more appropriate for the educational environment and should leverage educational institutions’ strengths rather than require them to import legal courtroom systems. The mandatory quasi-criminal courtroom procedures for sexual assault cases pit schools in an adversarial position against students—even respondents, who are favored by the 2020 Rule. This is a sea change and an inappropriate reorientation of the school’s role regarding students.

Additionally, the 2020 Rule is rooted in notions of rape exceptionalism, which has swung the pendulum of Title IX rights towards respondents when the correct calibration is to provide a fair system, including one that gives equal rights to both sides. As a result of focusing on protecting allegedly wrongfully accused respondents and the unsupported belief that 90% of sexual accusations are highly problematic,[304] the 2020 Rule created a set of procedures that are out of step with the equality mandate of Title IX, the educational context in which Title IX is implemented, and the other civil rights laws enforced by DOE, including other forms of sex discrimination covered by Title IX.[305] While it may seem fairer to bolster Title IX procedures, merely substituting more process for fairness will not result in equality.

Instead of focusing on justifications rooted in the due process distortion and rape exceptionalism, the focus should be on calibrating the Title IX process used to the allegation and the specific school setting, thus allowing educational institutions the ability to determine, within Title IX limits, processes that align with their educational community.[306] “By carefully crafting disciplinary systems, educational institutions can effectuate the statutorily-based equality mandate of Title IX” in a way that is consistent with fairness and procedural due process.[307]

Title IX must depart from the traditional model of examining discrimination one identity at a time because it harms individuals who hold multiple marginalized identities by forcing them to separate their component identities into separate cognizable legal claims. Using an intersectional lens would allow educational institutions to craft more effective disciplinary systems. The lens of power, privilege, and oppression must be brought to bear on analyzing how sexual assault functions within educational institutions. While we are aware that models need to change, we do not yet have a ready set of well-studied policies on how to address sexual assault with an effective intersectional approach. The necessity to account for marginalized identities,[308] and how identity and sexual assault intersect, has not been recognized in any systematic way by DOE to date and must be a priority moving forward.

The challenge, as issued by Harris and Linder, is that “[w]e, as a field, must ground this issue in history, account for all identities and institutional types, and explore the influence of interlocking systems of domination in sexual violence across college campuses.”[309] Until we do so, Title IX will remain an unfulfilled promise. Moving forward, this focus must be a priority in DOE’s guidance documents, Title IX enforcement, and schools’ Title IX implementation.

  1. In this Article, I use the terms “schools,” “colleges,” “universities,” and “campuses” to refer to postsecondary educational institutions covered by Title IX.

  2. Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688.

  3. See Anemona Hartocollis, Columbia Settles a Complicated Sexual Assault Case, N.Y. Times, https://www.nytimes.com/2021/01/11/us/columbia-sexual-assault.html [https://perma.cc/FTE5-46F8] (Jan. 29, 2021).

  4. The school’s decision is not publicly available. These facts are drawn from the court’s recitation of facts in the case. See Feibleman v. Trs. of Columbia Univ. (Feibleman I), No. 19-CV-4327, 2020 WL 882429, at *7 (S.D.N.Y. Feb. 24, 2020) (“The panel reportedly found Feibleman responsible for three instances of sexual assault based on a preponderance of the evidence standard: (1) non-penetrative sexual contact atop the water tower, (2) digital penetration in Doe’s bedroom, and (3) non-penetrative sexual contact in Doe’s bedroom.” (first citing Compl. (Dkt. 57) ¶¶ 699, 760; and then citing Gender-Based Misconduct Policy (“GBMP”) (Dkt. 48-1) at 4, 7, 24, 27)). This court statement is consistent with Mr. Feibleman’s pleadings, which dispute Columbia’s finding that he was “‘responsible’ for sexual harassment and sexual assault.” Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Dismiss Complaint at 1, Feibleman I, 2020 WL 882429 (No. 19-CV-04327), 2019 WL 8165737.

  5. Feibleman I, 2020 WL 882429, at *1–2, *7.

  6. Feibleman v. Trs. of Columbia Univ. (Feibleman II), No. 19-CV-4327, 2020 WL 3871075, at *1 (S.D.N.Y. July 9, 2020). The court granted in part defendant Columbia University’s motion to dismiss, Feibleman I, 2020 WL 882429, at *8, and denied Mr. Feibleman’s subsequent motion to amend his complaint, Feibleman II, 2020 WL 3871075, at *1.

  7. See Kristine Solomon, Expelled Columbia Journalism Student Accused of Rape Sues University over ‘Anti-Male’ Bias, Yahoo! Life (May 15, 2019), https://www.yahoo.com/lifestyle/expelled-columbia-journalism-student-accused-rape-sues-university-anti-male-bias-162059965.html [https://perma.cc/83UJ-UTBV] (Feibleman’s attorney stated, “Columbia University grievously mishandled this case. Columbia discriminated against Mr. Feibleman on the basis of his gender in violation of Title IX”); Andrew Denney, Expelled Columbia Journalism Student Accused of Rape Is Victim of ‘Anti-Male’ Bias: Lawsuit, N.Y. Post (May 14, 2019, 10:14 PM), https://nypost.com/2019/05/14/expelled-columbia-journalism-student-accused-of-rape-is-victim-of-anti-male-bias-lawsuit/ [https://perma.cc/99L4-KMBB] (“It’s open season on men at Columbia University thanks to the Ivy League school’s handling of sexual-harassment allegations against male students, a new lawsuit charges.”).

  8. See Greta Anderson, Perpetrator or Victim?, Inside Higher Ed (Jan. 12, 2021), https://www.insidehighered.com/news/2021/01/12/columbia-u-settles-alumnus-accused-rape [https://perma.cc/J2XR-RF9B].

  9. Hartocollis, supra note 3 (referencing Columbia statement that the “disciplinary findings remain unchanged”).

  10. Anderson, supra note 8.

  11. Hartocollis, supra note 3.

  12. Id. (“That suit was settled after the Trump administration had adopted a regulation to give more due process protections to the accused, generally men, effective in August [2020].”) It’s hard to imagine that the new regulation did not impact the changed posture towards the case, even though it was not retroactive.

  13. See Nancy Chi Cantalupo, And Even More of Us Are Brave: Intersectionality & Sexual Harassment of Women Students of Color, 42 Harv. J.L. & Gender 1, 11–16 (2019) (describing the changes from the Obama Administration and how efforts to “criminalize” Title IX are in part a backlash to the Obama Administration’s “stepped-up enforcement of Title IX with regard to sexual harassment”); Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, Calif. L. Rev. 881, 900–01 (2016); Michelle J. Anderson, Campus Sexual Assault Adjudication and Resistance to Reform, 125 Yale L.J. 1940, 1973–76 (2016) (describing guidance and clarifications released in 2011 and 2014); Deborah L. Brake, Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard, 78 Mont. L. Rev. 109, 126 (2017) (describing how Office of Civil Rights in 2011 “requir[ed] colleges and universities to act independently of any criminal law enforcement processes, and to use the standard of proof for civil and not criminal cases”).

  14. In May 2014, OCR broke with its tradition of discreet investigations of schools and released a list of the universities under investigation that it continued to update until the end of the Obama Administration. See U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual Violence Investigations, U.S. Dep’t of Educ. (May 1, 2014), https://web.archive.org/web/20201101173534/https:/www.ed.gov/news/press-releases/us-department-education-releases-list-higher-education-institutions-open-title-i [https://perma.cc/RL5A-J427]; see also Jessica C. Harris & Chris Linder, Preface to Intersections of Identity and Sexual Violence on Campus xi, xi (Jessica C. Harris & Chris Linder eds., 2017) (“By April 2016, 178 institutions of higher education were under investigation by the OCR for mishandling sexual violence cases.”).

  15. 34 C.F.R. §§ 106.18, 106.30, 106.44, 106.45, 106.46, 106.62.

  16. For some of the critiques aimed at the Obama Administration’s rule, see, for example, Peter Berkowitz, College Rape Accusations and the Presumption of Male Guilt, Wall St. J. (Aug. 20, 2011), https://www.wsj.com/articles/SB10001424053111903596904576516232905230642 [https://perma.cc/YUR8-DJ82]; Ariel Kaminer, New Factor in Campus Assault Cases: Counsel for the Accused, N.Y. Times (Nov. 19, 2014), https://www.nytimes.com/2014/11/20/nyregion/new-factor-in-campus-sexual-assault-cases-counsel-for-the-accused.html [https://perma.cc/L27L-GCCA] (detailing the rise of attorneys assisting respondents in sexual assault disciplinary proceedings due to the perception that a “rush to judgment” is leading to unfair processes for respondents); Elizabeth Bartholet et al., Opinion, Rethink Harvard’s Sexual Harassment Policy, Bos. Globe (Oct. 14, 2014, 9:00 PM), https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html [https://perma.cc/NT9K-MEZL] (arguing that Harvard’s new sexual harassment policies “lack the most basic elements of fairness and due process”); Letter from Ann E. Green, Chair, Comm. on Women in the Acad. Pro., and Cary Nelson, President, Am. Ass’n of Univ. Professors, to Russlyn Ali, Assistant Sec’y for C.R., U.S. Dep’t of Educ. Off. for C.R. (Aug. 18, 2011), https://www.aaup.org/NR/rdonlyres/FCF5808A-999D-4A6F-BAF3-027886AF72CF/0/officeofcivilrightsletter.pdf [https://perma.cc/RDJ4-AZQY] (arguing that OCR’s decision to mandate use of the preponderance of the evidence standard will not adequately protect respondents); Aya Gruber, Anti-Rape Culture, 64 U. Kan. L. Rev. 1027, 1052–53 (2016) (“Campus sexual assault reform is still nascent, and now is the time to be self-reflective rather than unyielding and to take stock of what is going on before well-intentioned feminist strategies turn into authoritarian institutions.”).

  17. The student who brings a sexual assault complaint will be referred to as a complainant. This language is consistent with that used by OCR in its Title IX investigations. See Off. for C.R., U.S. Dep’t of Educ., Case Processing Manual (CPM) 5 & n.1 (2020) [hereinafter Off. for C.R., Case Processing Manual], https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf [https://perma.cc/EX4F-ANYB]. The student who is the subject of a sexual assault complaint will be referred to as a respondent. This language is consistent with that used by OCR in its Title IX investigations. See id. at 30 n.12.

  18. See infra notes 93–101 and accompanying text; see also Susan Svrluga, Transcript: Betsy DeVos’s Remarks on Campus Sexual Assault, Wash. Post (Sept. 7, 2017), https://www.washingtonpost.com/news/grade-point/wp/2017/09/07/transcript-betsy-devoss-remarks-on-campus-sexual-assault/ [https://perma.cc/T7AR-7W2B] (noting DeVos’s remarks in which she articulated the focus on accused students); Cantalupo, supra note 13, at 10–11 (detailing the various forms that the backlash against perceived unfairness in Title IX took, including legislation and aggressive defamation lawsuits).

  19. Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1250 (E.D. Mich. 1984), aff’d, 787 F.2d 590 (6th Cir. 1986) (“While a university cannot ignore its duty to treat its students fairly, neither is it required to transform its classrooms into courtrooms.”).

  20. Because it followed the requirements of the Administrative Procedure Act, the 2020 Rule will stay in place until it is revoked, which will be a lengthy process.

  21. Sage Carson & Sarah Nesbitt, Balancing the Scales: Student Survivors’ Interests and the Mathews Analysis, 43 Harv. J.L. & Gender 319, 333–34 (2020) (“Although ‘due process’ has become the battle cry of the respondents’ rights movement, the content of that battle cry does not match the meaning of due process as determined by the courts.” (footnotes omitted)); id. at 343 (“[C]ourts have grafted the Mathews two-party analysis directly onto sexual misconduct cases, accounting for respondents and institutions and all but erasing complainants.”). Other scholars have noted that procedural due process is sometimes defined in a different manner in the Title IX education context. See, e.g., Lesley Wexler, 2018 Symposium Lecture: #MeToo and Procedural Justice, 22 Rich. Pub. Int. L. Rev. 181, 182 (2019) (describing colloquial due process as “non-legal or colloquial invocation of due process” that attempts to root itself in notions of fairness).

  22. As detailed infra in sections IV.A and V.B, the intersections between identity and sexual assault have been understudied, not emphasized by OCR, and investigatory systems have largely failed to explicitly consider such intersections, instead focusing on one model for who sexual assault survivors are and what form of response will therefore be effective.

  23. 20 U.S.C. § 1681(a). While the text of Title IX says “sex,” per the decision in Bostock, the term “sex” should be read to include gender identity and sexual orientation. See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020) (reading the term “sex” in Title VII to include gender identity and sexual orientation). When talking about Title IX, I use the statutory language of “sex” but use it to be inclusive of gender identity and sexual orientation per Bostock.

  24. Title IX and Sex Discrimination, U.S. Dep’t of Educ.: Off. for C.R., https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html [https://perma.cc/SZ6N-UYTC] (last modified Aug. 20, 2021) (stating 17,600 local school districts and 5,000 postsecondary institutions are covered by Title IX). The term “receiving federal financial assistance” has been broadly interpreted and includes even the receipt of federal financial aid by students attending an educational institution. See Grove City Coll. v. Bell, 465 U.S. 555, 564 (1984) (Title IX “appears to encompass all forms of federal aid to education, direct or indirect” (quoting Grove City Coll. v. Bell, 687 F.2d 684, 691 (3d Cir. 1982))); Haffer v. Temple Univ., 688 F.2d 14, 17 (3d Cir. 1982) (finding that because the university “as a whole” received federal money, “its intercollegiate athletic department” was governed by Title IX).

  25. 20 U.S.C. § 1681(a); 34 C.F.R. § 106.1; Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026, 30,097 (May 19, 2020) (to be codified at 34 C.F.R. pt. 106) (“[T]he § 106.45 grievance process focuses on the purpose of Title IX: to give individuals protections against discriminatory practices and ensure that recipients provide victims of sexual harassment with remedies to help overcome the denial of equal access to education caused by sex discrimination in the form of sexual harassment.”); see also Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979).

  26. Paul M. Anderson, Title IX at Forty: An Introduction and Historical Review of Forty Legal Developments That Shaped Gender Equity Law, 22 Marq. Sports L. Rev. 325, 326 (2012).

  27. See 118 Cong. Rec. 5803 (1972).

  28. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280 (1998) (“The express statutory means of enforcement [for Title IX] is administrative . . . .”). “Congress enacted Title IX in 1972 with two principal objectives in mind: ‘[T]o avoid the use of federal resources to support discriminatory practices’ and ‘to provide individual citizens effective protection against those practices.’” Id. at 286 (alteration in original) (quoting Cannon, 441 U.S. at 704).

  29. Id. at 284–85 (“Because the private right of action under Title IX is judicially implied, we have a measure of latitude to shape a sensible remedial scheme that best comports with the statute.”); Katharine Silbaugh, Reactive to Proactive: Title IX’s Unrealized Capacity to Prevent Campus Sexual Assault, 95 B.U. L. Rev. 1049, 1058–60, 1062 (2015) (discussing how Title VII jurisprudence informed Title IX remedies in Gebser and in subsequent OCR Guidance).

  30. See 34 C.F.R. §§ 106.2(d)–.4(a) (giving Assistant Secretary authority to approve educational institutions for federal funding and determine remedial action for violating Title IX); see also Gebser, 524 U.S. at 292 (“Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate.”); Russlynn Ali, U.S. Dep’t of Educ. Off. for C.R., Dear Colleague Letter: Sexual Violence 1 n.1 (2011) [hereinafter Sexual Violence Letter], https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf [https://perma.cc/Y885-ZRUV] (describing Dear Colleague Letter as “policy guidance” to assist recipients to meet obligations and provide “the public with information about their rights” under laws and regulations giving rise to OCR’s legal authority). Title IX’s implementing regulations refer to educational institutions’ obligation to “eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance.” 34 C.F.R. § 106.1.

  31. Title IX and Sex Discrimination, supra note 24; An Overview of the U.S. Department of Education, U.S. Dep’t of Educ., https://www2.ed.gov/about/overview/focus/what.html [https://perma.cc/MSJ3-DLUN] (last modified May 14, 2018).

  32. These guidance documents come in various forms and include, among others, implementing regulations, guidances, dear colleague letters, question and answer documents, and resource guides. See, e.g., Request for Information Regarding the Nondiscriminatory Administration of School Discipline, 86 Fed. Reg. 30,449, 30,449–51 (June 8, 2021) (implementing regulations, dear colleague letters, guidances); Sexual Violence Letter, supra note 30 (dear colleague letter); Off. for C.R., U.S. Dep’t of Educ., OCR-000112, Questions & Answers on Racial Discrimination and School Discipline (2018) (question and answer document); Off. for C.R., U.S. Dep’t of Educ., OCR-000100, Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools (2016) (resource guide).

  33. Administrative Procedure Act, 5 U.S.C. §§ 551–559.

  34. See Letter from Catherine E. Lhamon, Assistant Sec’y for C.R., U.S. Dep’t of Educ., to the Hon. James Lankford, Chairman, U.S. Senate Subcomm. on Regul. Affs. & Fed. Mgmt. (Feb. 17, 2016), https://www.lankford.senate.gov/imo/media/doc/DEPT. of EDUCATION LANKFORD LETTER 2-17-16.pdf [https://perma.cc/BY7U-X2FK] (explaining that DOE views dear colleague letters, which have not gone through APA procedures, as “simply serv[ing] to advise the public” without “force and effect of law”); see also G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 718–19, 723, 732 (4th Cir. 2016) (school board banned transgender student from using the boy’s restroom), vacated, 137 S. Ct. 1239 (2017) (mem.); Complaint for Declaratory & Injunctive Relief at 2–3, Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (No. 16-cv-00054-O) (eleven states sued DOE arguing that the role of DOE is “to enforce the law of the land, and not rewrite it by administrative fiat”).

  35. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026, 30,029 n.11 (May 19, 2020) (to be codified at 34 C.F.R. pt. 106) (“OCR found numerous institutions in violation of Title IX for failing to adopt the preponderance of the evidence standard in its investigations of sexual harassment, even though the notion that the preponderance of the evidence standard is the only standard that might be applied under Title IX is set forth in the 2011 Dear Colleague Letter and not in the Title IX statute, current regulations, or other guidance.”).

  36. Off. for C.R., Case Processing Manual, supra note 17, at 20–21, 24–25 (“When post-Letter of Impending Enforcement Action negotiations do not result in a resolution agreement and OCR decides, within its discretion, to refer the matter to DOJ, it will issue a letter to the recipient stating that the case will be referred to DOJ within 10 calendar days of the date of the letter.”).

  37. See Silbaugh, supra note 29, at 1052–53 (“[W]hen Title VII and Title IX were passed, that sexual assault or harassment could be framed as sex discrimination wasn’t yet contemplated.”).

  38. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. at 30,028–30 (tracing how OCR’s guidance documents came to incorporate sexual harassment and the importance of its incorporation into the APA-compliant 2020 Rule).

  39. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).

  40. Id. at 1739, 1741; see also Exec. Order 13988, 86 Fed. Reg. 7,023 (Jan. 20, 2021) (“Under Bostock’s reasoning, laws that prohibit sex discrimination—including Title IX . . . —prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”).

  41. The type of notice the school needs has differed based on the Administration that is in power. Compare Off. for C.R., U.S. Dep’t of Educ., Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 12–13 (2001) [hereinafter Off. for C.R., 2001 Guidance] (referring to the obligation when a “school knows or reasonably should know”), with 34 C.F.R. § 106.30 (stating that notice requires actual knowledge).

  42. See 34 C.F.R. §§ 106.44(a)–.45(b)(1)(iii) (“A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent.”). In the past, this obligation has been described differently. See, e.g., Off. for C.R, 2001 Guidance, supra note 41, at 15 (“Once a school has notice . . . it should take immediate and appropriate steps to investigate . . . and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again.”).

  43. 34 C.F.R. § 106.45(b) (requiring dismissal of formal complaint if conduct “would not constitute sexual harassment” under 34 C.F.R § 106.30); Complaint for Declaratory & Injunctive Relief at 45, Victim Rts. L. Ctr. v. DeVos, (D. Mass. June 10, 2020) (No. 20-CV-11104) (stating that the requirement to dismiss certain complaints “conflicts with the plain language of Title IX” and “the statute [cannot] be reasonably read to prohibit schools from addressing any form of sex-based harassment”).

  44. See Silbaugh, supra note 29, at 1064–66.

  45. Id. at 1050.

  46. Id. at 1068, 1073.

  47. See, e.g., Jennifer S. Hirsch & Shamus Khan, Sexual Citizens 258 (2020) (arguing for a public health model as part of Title IX response); Nancy Chi Cantalupo & William C. Kidder, Mapping the Title IX Iceberg: Sexual Harassment (Mostly) in Graduate School by College Faculty, 66 J. Legal Educ. 850, 858 (2017).

  48. David Cantor et al., Ass’n of Am. Univs., Report on the AAU Campus Climate Survey on Sexual Assault and Misconduct vii (2020), https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Campus-Safety/Revised Aggregate report and appendices 1-7_(01-16-2020_FINAL).pdf [https://perma.cc/AZ3C-Q2MX] (“The overall rate of nonconsensual sexual contact by physical force or inability to consent since the student enrolled at the school was 13.0 percent . . . .”); see also Bonnie S. Fisher et al., U.S. Dep’t of Just., NCJ 182369, The Sexual Victimization of College Women 10 (2000) (finding a sexual assault rate of 27.7 per 1,000 female students); Christopher P. Krebs et al., The Campus Sexual Assault (CSA) Study xii (2007), https://www.ojp.gov/pdffiles1/nij/grants/221153.pdf [https://perma.cc/UN6N-36FB] (“Of the [surveyed] women, 28.5% reported having experienced an attempted or completed sexual assault either before or since entering college.”). See infra Section IV.A for an analysis of how those statistics have not adequately addressed facets of identity other than biological sex.

  49. Katharine K. Baker et al., Title IX & the Preponderance of the Evidence: A White Paper 1–3 (2017), http://www.feministlawprofessors.com/wp-content/uploads/2017/07/Title-IX-Preponderance-White-Paper-signed-7.18.17-2.pdf [https://perma.cc/C7P8-PFAX].

  50. Id. at 1–2.

  51. Dana Bolger, Gender Violence Costs: Schools’ Financial Obligations Under Title IX, 125 Yale L.J. 2106, 2118 (2016).

  52. See, e.g., Alexandra Svokos, How Activists Improved the Handling of Campus Sexual Assault This Year, Huffpost, https://www.huffpost.com/entry/campus-sexual-assault-progress_n_7470208 [https://perma.cc/H3VS-8C7F] (June 8, 2015) (detailing how activism of Alejandra Melgoza, Melissa Vasquez, and Lexi Weyrick led to reform of the University of California, Santa Barbara’s system); see also Brake, supra note 13, at 110, 117 (“Stories of survivors re-victimized by their institutions in the aftermath of reporting campus sexual assault have sparked a reenergized student activism which found a receptive audience in the Obama Administration.”).

  53. E-mail from Lexi Weyrick, Boston Univ. Sch. of L., to Naomi M. Mann, Clinical Assoc. Professor of L., Boston Univ. Sch. of L. (Oct. 12, 2021, 00:11 EDT) (on file with author).

  54. Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 Loy. U. Chi. L.J. 205, 216 (2011); Brake, supra note 13, at 114–15; Moore v. Regents of the Univ. of Cal., No. 15-CV-05779, 2016 WL 2961984, at *6 (N.D. Cal. May 23, 2016).

  55. See Cantalupo, supra note 54, at 215; Brake, supra note 13, at 131; see also Claire Lampen, Ask This Student How Her College Is Protecting Her Rapist, Mic (May 3, 2016), https://www.mic.com/articles/142089/ask-this-student-how-her-college-is-protecting-her-rapist [https://perma.cc/796R-5B2Z].

  56. Cantalupo, supra note 54, at 216; Brake, supra note 13, at 114–16; Carson & Nesbitt, supra note 21, at 353 (“Adverse educational experiences can directly implicate survivor’s financial wellbeing. When a survivor’s academic performance declines, they may lose scholarships, take semesters of leave, drop out, or even be removed from school like Wanjuki.”); see, e.g., Doe v. Erskine Coll., No. Civ.A. 04–23001RBH, 2006 WL 1473853, at *7 (D.S.C. May 25, 2006).

  57. See Cantalupo, supra note 54, at 215–16; see, e.g., Rouse v. Duke Univ., 869 F. Supp. 2d 674, 677–78 (M.D.N.C. 2012) (mem.); Erskine Coll., 2006 WL 1473853, at *7, *13.

  58. See Cantalupo, supra note 54, at 216; see, e.g., Sarah Brown, BYU Is Under Fire, Again, for Punishing Sex-Assault Victims, Chron. Higher Educ. (Aug. 6, 2018), https://www.chronicle.com/article/byu-is-under-fire-again-for-punishing-sex-assault-victims/ [https://perma.cc/UK88-8S2X]; Christina Cauterucci, BYU’s Honor Code Sometimes Punishes Survivors Who Report Their Rapes, Slate (Apr. 15, 2016, 1:05 PM), https://slate.com/human-interest/2016/04/byu-s-honor-code-sometimes-punishes-survivors-who-report-their-rapes.html [https://perma.cc/U3UU-544G].

  59. Brake, supra note 13, at 113; see, e.g., Erskine Coll., 2006 WL 1473853, at *7, *13; Tyler Kingkade, The Woman Behind #SurvivorPrivilege Was Kicked Out of School After Being Raped, HuffPost, https://www.huffpost.com/entry/survivor-privilege-wagatwe-wanjuki_n_5489170 [https://perma.cc/96XM-RVM2] (June 13, 2014); Phoebe Suy, Sexual Assault Survivors Share Testimonies, Experiences with Title IX, Baylor Lariat (Nov. 19, 2017), https://baylorlariat.com/2017/11/19/sexual-assault-survivors-share-testimonies-experiences-with-title-ix/ [https://perma.cc/CS4G-52H7]; Audrey Chu, I Dropped Out of College Because I Couldn’t Bear to See My Rapist on Campus, Vice (Sept. 26, 2017, 11:51 AM), https://www.vice.com/en_us/article/qvjzpd/i-dropped-out-of-college-because-i-couldn’t-bear-to-see-my-rapist-on-campus [https://perma.cc/8LLP-5F7N].

  60. By 2016, “[a]dministrators, policymakers, and the general public acknowledged that ‘sexual violence on campus ha[d] reached epidemic levels.’” Harris & Linder, supra note 14, at xii (quoting Kate B. Carey et al., Incapacitated and Forcible Rape of College Women: Prevalence Across the First Year, 56 J. Adolescent Health 678, 678 (2015)).

  61. Sexual Violence Letter, supra note 30, at 1.

  62. See id. at 2 & n.3 (citing 2007 report that about one in five women are victims of completed or attempted sexual assault in college); see also Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration 153 (2020) (describing how OCR’s Assistant Secretary was affected by the CPI Report on rates of sexual assault in schools).

  63. Robin Wilson, How a 20-Page Letter Changed the Way Higher Education Handles Sexual Assault, Chron. Higher Educ. (Feb. 8, 2017), https://www.chronicle.com/article/how-a-20-page-letter-changed-the-way-higher-education-handles-sexual-assault/ [https://perma.cc/JM7E-CCPA] (noting that the “legendary” letter “specif[ied] in fine detail how colleges should respond to reports of [sexual] assault”).

  64. Sexual Violence Letter, supra note 30, at 2.

  65. Gersen & Suk, supra note 13, at 900; see also Cantalupo, supra note 13, at 11.

  66. Max Larkin, The Obama Administration Remade Sexual Assault Enforcement on Campus. Could Trump Unmake It?, WBUR News (Nov. 25, 2016), https://www.wbur.org/2016/11/25/title-ix-obama-trump [https://perma.cc/LC7V-RRXH].

  67. See Anderson, supra note 13, at 1988 (“[C]olleges and universities do not always adjudicate allegations of sexual assault well. They have not been adjudicating these kinds of claims for very long. Since 2011, under the guidance of the Dear Colleague Letter, campuses have begun to tackle these issues in earnest.”).

  68. See supra notes 49–60 and accompanying text (discussing survivor movement and inequities they alleged); U.S. Senate Subcomm. on Fin. & Contracting Oversight, Sexual Violence on Campus: How Too Many Institutions of Higher Education Are Failing To Protect Students 2, 4, 9 (2014) (indicating only about 5% of those who were sexually assaulted reported it to law enforcement, and schools investigated only a small portion of the complaints that they received, which even further limited the number of sexual assaults addressed). These statistics are based on the binary of biological sex and do not divide by race or other identities, so they do not assist with determining how the rate could vary when other identities are included.