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 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.
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.
In this Article, I use the terms “schools,” “colleges,” “universities,” and “campuses” to refer to postsecondary educational institutions covered by Title IX.
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688.
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).
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.
Feibleman I, 2020 WL 882429, at *1–2, *7.
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.
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.”).
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].
Hartocollis, supra note 3 (referencing Columbia statement that the “disciplinary findings remain unchanged”).
Anderson, supra note 8.
Hartocollis, supra note 3.
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.
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”).
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.”).
34 C.F.R. §§ 106.18, 106.30, 106.44, 106.45, 106.46, 106.62.
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.”).
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.
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).
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.”).
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.
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).
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.
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.
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).
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).
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).
See 118 Cong. Rec. 5803 (1972).
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).
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).
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.
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).
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).
Administrative Procedure Act, 5 U.S.C. §§ 551–559.
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”).
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.”).
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.”).
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.”).
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).
Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
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.”).
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).
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.”).
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”).
See Silbaugh, supra note 29, at 1064–66.
Id. at 1050.
Id. at 1068, 1073.
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).
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.
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].
Id. at 1–2.
Dana Bolger, Gender Violence Costs: Schools’ Financial Obligations Under Title IX, 125 Yale L.J. 2106, 2118 (2016).
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.”).
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).
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).
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].
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).
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.
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].
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].
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)).
Sexual Violence Letter, supra note 30, at 1.
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).
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”).
Sexual Violence Letter, supra note 30, at 2.
Gersen & Suk, supra note 13, at 900; see also Cantalupo, supra note 13, at 11.
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].
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.”).
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.
Carly Parnitzke Smith & Jennifer J. Freyd, Institutional Betrayal, 69 Am. Psych. 575, 577 (2014) (“[W]e examine institutional action and inaction that exacerbate the impact of traumatic experiences—what we call institutional betrayal.”); David L. Stader & Jodi L. Williams-Cunningham, Campus Sexual Assault, Institutional Betrayal, and Title IX, 90 Clearing House 198, 198 (2017) (“In the context of campus sexual assault, institutional betrayal occurs when a college deliberately or unknowingly causes harm to an individual who trusts or depends on that institution to keep them safe and treat them fairly.”). Victims of sexual assault are often retraumatized when their schools discourage reporting, make reporting difficult, delay adjudication, and cover up sexual assault allegations. See Stader & Williams-Cunningham, supra, at 198–99. Although institutional betrayal is often indirect, “victims of institutional betrayal seem to experience the same physical and sexual ill effects as victims of interpersonal abuse.” Id. at 199.
Cantalupo, supra note 54, at 220 (“[S]chools have incentives not only to remain unaware of the general problem and specific instances of campus peer sexual violence, but also to actively avoid knowledge about both.”).
Sexual Violence Letter, supra note 30, at 1–2 (referring to disability in the context of capacity to consent and “the likelihood that a woman with intellectual disabilities will be sexually assaulted is estimated to be significantly higher than the general population”); see also Kelsey Scarlett & Lexi Weyrick, Transforming the Focus: An Intersectional Lens in School Response to Sex Discrimination, 57 Cal. W. L. Rev. 391, 403 (2021) (“Although the Obama administration’s guidance sought, in part, to remedy the history of lax sexual assault responses by schools, this guidance still failed to address the impacts of schools’ traditional focus on protecting white, cisgender, heterosexual male respondents on marginalized survivors, making it a limited approach.”).
See Sexual Violence Letter, supra note 30, at 10–11 (“The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). Like Title IX, Title VII prohibits discrimination on the basis of sex. OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX. OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings. Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).” (citation and footnotes omitted)); see also Baker et al., supra note 49, at 7 (“[M]ost college student disciplinary systems have used a preponderance of the evidence standard for years, and well before the 2011 DCL was released.”). A higher standard such as “clear and convincing” evidence would violate Title IX as it is “not equitable.” Sexual Violence Letter, supra note 30, at 11.
The 2014 Questions and Answers on the Title IX Regulations on Sexual Harassment made only a few references to identity and included a general note that all students can be affected without requiring or suggesting any framework to address these realities. Off. for C.R., U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence 5 (2014) [hereinafter 2014 Q&A] (noting high rates of sexual harassment and sexual violence for LGBT youth); id. at 6 (requiring “appropriate training about working with LGBT and gender-nonconforming students and same-sex violence”); id. at 5 (“Any student can experience sexual violence: . . . male and female students; straight, gay, lesbian, bisexual and transgender students; part-time and full-time students; students with and without disabilities; and students of different races and national origins.”).
See Brake, supra note 13, at 110–11 (“[Survivor] stories are increasingly being countered by oppositional narratives from men alleging that they have been unfairly accused and too harshly punished for conduct more akin to miscommunication than sexual assault.”).
Bartholet et al., supra note 16 (listing concerns by twenty-eight Harvard Law School faculty that Harvard’s procedures to respond to sexual misconduct allegations “lack the most basic elements of fairness and due process, [and] are overwhelmingly stacked against the accused”); Emily Yoffe, The College Rape Overcorrection, Slate: Double X (Dec. 7, 2014, 11:53 PM), http://www.slate.com/articles/double_x/doublex/2014/12/college_rape_campus_sexual_assault_is_a_serious_problem_but_the_efforts.html [https://perma.cc/L9CE-QCGK] (“Unfortunately, under the worthy mandate of protecting victims of sexual assault, procedures are being put in place at colleges that presume the guilt of the accused.”); see also Nancy Gertner, Complicated Process, 125 Yale L.J.F. 442, 443–45 (2016).
Carson & Nesbitt, supra note 21, at 333–34 (“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)).
Baker et al., supra note 49, at 10; Nancy Chi Cantalupo, Dog Whistles and Beachheads: The Trump Administration, Sexual Violence, and Student Discipline in Education, 54 Wake Forest L. Rev. 303, 312–13 (2019).
Compare Conor Friedersdorf, The ACLU Moves to Embrace Due Process on Title IX, Atlantic (Feb. 8, 2019), https://www.theatlantic.com/ideas/archive/2019/02/aclu-title-ix/582118/ [https://perma.cc/GLZ5-64E5] (describing support for DOE increasing due process rules), and Plummer v. Univ. of Hous., 860 F.3d 767, 783 (5th Cir. 2017) (Jones, J., dissenting) (“Elevating the standard of proof to clear and convincing, a rung below the criminal burden, would maximize the accuracy of factfinding.”), with New Poll Finds Broad, Deep Support for Existing Title IX Sexual Assault Protections, Even Among Trump Voters, Nat’l Women’s L. Ctr. (May 17, 2017), https://nwlc.org/press-releases/new-poll-finds-broad-deep-support-for-existing-title-ix-sexual-assault-protections-even-among-trump-voters/ [https://perma.cc/248N-MG2E] (finding support for keeping Title IX rules as they are), and Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016) (finding that the preponderance of the evidence standard is “not problematic, standing alone”). See generally Lee v. Univ. of N.M., 449 F. Supp. 3d 1071, 1130–31 (D.N.M. 2020) (discussing courts grappling with the standard of proof).
See David Lisak et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 1318, 1327–29 (2010) (determining 5.9% of sexual assaults reported to a major northeastern university over a ten-year period from 1998 to 2007 were false); Deborah Tuerkheimer, Incredible Women: Sexual Violence and the Credibility Discount, 166 U. Pa. L. Rev. 1, 8 & n.36, 17–20 (2017) (assessing three methodologies for determining incidences of false reporting to demonstrate figures—4.5%, 5.9%, and 6.8%, respectively—are significantly lower than estimates provided by law enforcement officers); see also Dara Lind, What We Know About False Rape Allegations, Vox (June 1, 2015, 8:20 AM), https://www.vox.com/2015/6/1/8687479/lie-rape-statistics [https://perma.cc/2K4S-LFE2] (“For one thing, research has finally nailed down a consistent range for how many reports of rape are false: somewhere between 2 and 8 percent, which is a lot narrower than the 1.5 percent to 90 percent range of the past.”). For a discussion of the key methodological issues in assessing incidences of false accusations of sexual assault, see generally Lisak et al., supra, at 1319–22 and Complaint for Declaratory & Injunctive Relief, supra note 43, at 6, 11–12.
Erica L. Green & Sheryl Gay Stolberg, Campus Rape Policies Get a New Look as the Accused Get DeVos’s Ear, N.Y. Times (July 12, 2017) (emphasis added), https://www.nytimes.com/2017/07/12/us/politics/campus-rape-betsy-devos-title-iv-education-trump-candice-jackson.html [https://perma.cc/CK5W-YSJC].
See infra Section IV.A.
The 2020 Rule sometimes arbitrarily defines the contours of courtroom rights, and therefore this chart is meant to be illustrative, rather than asserting that every right contained within it exactly replicates the contours of the rights afforded those in civil or criminal court. For example, the rules on admissible evidence do not precisely track those for courtroom rules where the witness is unavailable or does not answer questions. Compare 34 C.F.R. § 106.45(b)(6)(i) (“If a party or witness does not submit to cross‑examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility . . . .”), with Fed. R. Evid. 803 (stating exceptions to the rule against hearsay, including excited utterance; then-existing mental, emotional, or physical condition; and statements made for medical diagnosis or treatment).
§ 106.45(b)(6)(i) (“[P]ostsecondary institutions . . . must provide for a live hearing.”). K–12 schools have the option of choosing live hearings. Id. § 106.45(b)(6)(ii).
Id. § 106.45(b)(6)(i) (stating that postsecondary institutions “must provide for a live hearing” and “[s]uch cross-examination at the live hearing must be conducted directly, orally, and in real time”); cf. 2014 Q&A, supra note 73, at 31 (“OCR does not require that a school allow cross-examination of witnesses, including the parties, if they testify at the hearing. But if the school allows one party to cross-examine witnesses, it must do so equally for both parties.”).
See § 106.45(b)(1)(ii) (explaining that the grievance process must “[r]equire an objective evaluation of . . . inculpatory and exculpatory evidence”); § 106.45(b)(6)(i) (explaining that at the live hearing, “[o]nly relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant”).
§ 106.45(b)(6)(i) (“[For postsecondary schools], [i]f a party does not have an advisor present at the live hearing, the recipient must provide without fee or charge to that party, an advisor of the recipient’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.”); see also U.S. Dep’t of Educ., Off. for C.R., Questions and Answers on the Title IX Regulations on Sexual Harassment 21 (July 2021) [hereinafter 2021 Q&A], https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf [https://perma.cc/2EYV-D9E8] (referring to the obligation on postsecondary schools to provide advisors). It is not clear if such requirements apply to K–12 schools who choose the live hearing model.
In the criminal context, an attorney must be provided for an indigent defendant. 18 U.S.C. § 3006A(a). There is no comparable provision for the complaining witness. Susan Kling, Note, A Mandatory Right to Counsel for the Material Witness, 19 U. Mich. J.L. Reform 473, 478–79 (1986). Note that for the Title IX process, the advocate/attorney must only be provided for the live hearing for purposes of cross-examination and not at prior stages of the process. See 34 C.F.R. § 106.45(b)(5)(vi)–(vii), (6)(i) (referring to obligation to provide advocate or attorney for purposes of cross-examination at a live hearing).
§ 106.30(a)(3). “The term ‘sexual assault’ means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.” 20 U.S.C. § 1092(f)(1), (6)(A)(v) (stating the definition of sexual assault that applies to all schools). This definition will sharply exclude from Title IX coverage categories of sex discrimination that have long been covered by both OCR guidance and caselaw. For example, it only covers situations where the touching is for the sexual gratification of the respondent and not where it is, for instance, touching to show power or sexually humiliate. See, e.g., State v. DiPetrillo, 922 A.2d 124, 126, 135 (R.I. 2007) (referring to the “Burke analysis of psychological-pressure-on-a-vulnerable-victim” in an employer sexual assault case); Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1171 (9th Cir. 2003) (supervisor). See generally Michael Buchhandler-Raphael, Sexual Abuse of Power, 21 U. Fla. J.L. & Pub. Pol’y 77, 86, 117–18, 122 (2010); People v. Roa, 217 Cal. Rptr. 3d 604, 609 (2017) (stating that expert witness’s diagnosis of defendant’s sexual sadism was based on defendant’s “interest in sexually humiliating the victim rather than having sexual intercourse with her”).
Off. for C.R., 2001 Guidance, supra note 41, at 19 & 36–37 n.98 (explaining that since Title IX was passed, “[s]chools [have been] required by the Title IX regulations to adopt and publish a policy against sex discrimination and grievance procedures providing for prompt and equitable resolution of complaints of discrimination on the basis of sex”).
Id. at 20.
Id.
Naomi M. Mann, Taming Title IX Tensions, 20 U. Pa. J. Const. L. 631, 644–46 (2018) (detailing the general models that schools use).
34 C.F.R. § 106.30(a)(2) (describing the “severe, pervasive, and objectively offensive” standard).
See Off. for C.R., 2001 Guidance, supra note 41, at vi (referring to sexual harassment as “conduct of a sexual nature is sufficiently severe, persistent, or pervasive” (emphasis added) (quoting 62 Fed. Reg. 12,034, 12,041 (Mar. 13, 1997))); Off. for C.R., U.S. Dep’t of Educ., OCR-00056, Dear Colleague Letter: Harassment and Bullying 2 (2010) [hereinafter Harassment and Bullying Letter] (explaining that schools are required to respond to incidents of harassment based on sex, race, ethnicity, national origin, or disability when conduct is “severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services”).
See Harassment and Bullying Letter, supra note 94, at 5 (“In this example, school administrators should have recognized that the harassment was based on the students’ actual or perceived shared ancestry . . . .”).
See 34 C.F.R. § 106.44(a) (stating that the school must respond when it has “actual knowledge”); § 106.30(a) (defining what constitutes “actual knowledge”).
Off. for C.R., 2001 Guidance, supra note 41, at 12 (describing the school’s responsibility “if the school knows or reasonably should know about the harassment” (footnote omitted)); Sexual Violence Letter, supra note 30, at 4 (“If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”).
Race and National Origin Discrimination: Frequently Asked Questions, Off. for C.R., https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/race-origin.html [https://perma.cc/Z3NU-SCSU] (last modified Jan. 10, 2020) (explaining that an educational institution has a responsibility to take action “[w]hen [it] knows or reasonably should know of possible racial or national origin harassment”); see also Harassment and Bullying Letter, supra note 94, at 6 (“Because the school failed to recognize that the incidents created a hostile environment, it addressed each only in isolation, and therefore failed to take prompt and effective steps reasonably calculated to end the harassment and prevent its recurrence.”).
§ 106.44(a) (explaining that a school “must respond promptly in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances”).
Off. for C.R., 2001 Guidance, supra note 41, at 12 (“As long as the school, upon notice of the harassment, responds by taking prompt and effective action to end the harassment and prevent its recurrence, the school has carried out its responsibility under the Title IX regulations.”).
Race and National Origin Discrimination: Frequently Asked Questions, supra note 98 (“If an investigation reveals that the harassment created a hostile environment, the educational institution must take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”); Harassment and Bullying Letter, supra note 94, at 6.
See supra Section III.A. Other scholars have noted that procedural due process is sometimes defined in a different manner in the Title IX education context. See, e.g., Wexler, supra note 21, at 14–15 (describing the nonlegal invocation of due process as “colloquial due process”); Carson & Nesbitt, supra note 21, at 333–34 (arguing that procedural due process has been misapplied in the Title IX context).
See Brake, supra note 13, at 126; Gertner, supra note 75, at 444; Carson & Nesbitt, supra note 21, at 333–34 (describing critiques of the Obama changes).
See Anderson, supra note 13, at 1998 (referring to “procedural exceptionalism for campus sexual assault”); id. at 2000 (“[W]e should be skeptical of rape or sexual assault exceptionalism. The history of attempting to deter legitimate complaints of rape by imposing unique procedural hurdles is too clear to ignore.”); see also Gertner, supra note 75, at 447 (“Second, the HLS reforms do not represent a return to what Michelle Anderson has called rape exceptionalism, mirroring ‘the traditional special burdens placed on rape prosecutions in the criminal law.’” (footnote omitted)).
Anderson, supra note 13, at 1945–59 (describing the history of rape law requirements in the United States).
Id. at 1943, 1946–47.
This has also been referred to as the “credibility discount.” Carson & Nesbitt, supra note 21, at 350 (describing the credibility discount as “society’s baseline disbelief of women”). Per the style guide followed by the Houston Law Review, racial groups defined by color are capitalized. Manual on Usage & Style R. 3.01(a), 3.02 (Tex. L. Rev. eds., 15th ed. 2020); see also Kristen Mack & John Palfrey, Capitalizing Black and White: Grammatical Justice and Equity, MacArthur Found. (Aug. 26, 2020), https://www.macfound.org/press/perspectives/capitalizing-black-and-white-grammatical-justice-and-equity [https://perma.cc/F9N6-59ZA] (“Choosing to not capitalize White while capitalizing other racial and ethnic identifiers would implicitly affirm Whiteness as the standard and norm.”).
See Fisher et al., supra note 48, at 23–24 (finding that less than 5% of survivors of completed or attempted rapes were reported to law enforcement); see also Callie Rennison, U.S. Dep’t of Just., Criminal Victimization 2001: Changes 2000–01 with Trends 1993–2001 10 (2002), https://bjs.ojp.gov/content/pub/pdf/cv01.pdf [https://perma.cc/3VYN-3BTD] (illustrating the much lower reports of sexual assault in contrast to other crimes).
See Rape in the United States: The Chronic Failure to Report and Investigate Rape Cases: Hearing Before the Subcomm. on Crime & Drugs of the S. Comm. on the Judiciary, 111th Cong. 247–49 (2010) (statement of Carol E. Tracy, Executive Director, Women’s Law Project); Megan A. Alderden & Sarah E. Ullman, Creating a More Complete and Current Picture: Examining Police and Prosecutor Decision-Making When Processing Sexual Assault Cases, 18 Violence Against Women 525, 540 (2012); Kimberly A. Lonsway & Joanne Archambault, The “Justice Gap” for Sexual Assault Cases: Future Directions for Research and Reform, 18 Violence Against Women 145, 153–54 (2012).
Angela Onwuachi-Willig, What About #UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale L.J.F. 105, 111–12, 118–19 (2018) (describing marginalization and exclusion of women of color from the larger feminist movement in U.S. society and the #MeToo movement); Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1268 (1991) (describing marginalization of Black women’s sexualization and lack of media attention on rapes of women of color).
These identities affect how survivors’ vulnerability to, experiences with, and aftermath from sexual assault intersect in the sexual assault context in especially crucial ways and how these factors must also be included in a holistic Title IX solution. See generally Intersections of Identity and Sexual Violence on Campus, supra note 14 (analyzing the influence of racism, classism, homophobia, transphobia, ableism, and other forms of oppression on sexual violence prevention and response strategies); Scarlett & Weyrick, supra note 71.
Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 602 (1990) (“As in the dominant discourse, black women are relegated to the margins, ignored or extolled as ‘just like us, only more so.’ But ‘Black women are not white women with color.’”).
Id. at 588–89.
In using these race-based categories, I do not mean to essentialize any one of these identities or imply that everyone who is ascribed or self-identifies with any of these identities is the same. See Frequently Asked Questions: Racial Justice for BIWOC in the Workplace, Melanin Collective, https://www.themelanincollective.org/faq-racial-justice-for-biwoc-in-the-workplace [https://perma.cc/QEV5-HDE2] (last visited Aug. 19, 2021); see also Jessica C. Harris, Centering Women of Color in the Discourse on Sexual Violence on College Campuses, in Intersections of Identity and Sexual Violence on Campus, supra note 14, at 46, 46 (explaining use of the term “women of color,” despite risk of essentializing, given the importance of the term as a way to build solidarity: “[th]e term women of color grew out of a movement of resistance and a need for solidarity among a group of racially minoritized women in the United States” (citing S.M. Roshanravan, Passing-as-if: Model-Minority Subjectivity and Women of Color Identification, 10 Meridians, Oct. 2009, at 1, 1)).
Harris, supra note 112, at 601 (“Thus, the experience of rape for black women includes not only a vulnerability to rape and a lack of legal protection radically different from that experienced by white women, but also a unique ambivalence. Black women have simultaneously acknowledged their own victimization and the victimization of black men by a system that has consistently ignored violence against women while perpetrating it against men.”).
Onwuachi-Willig, supra note 110, at 118–19.
The decision to capitalize Black and other marginalized racial identities is a deliberate one. I capitalize Black and other marginalized racial identities to highlight that race is a social construct and emphasize how stereotypes about marginalized racial identities have historically functioned in a discriminatory manner. I also acknowledge that meanings of race have changed over time as a mechanism of power. See Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 8–9 (2d ed. 2012); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimization in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1332 n.2 (1988) (“When using ‘Black,’ I shall use an upper-case ‘B’ to reflect my view that Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.”). See also supra note 107, explaining that per the style guide followed by the Houston Law Review, its standard is to capitalize all racial groups defined by color. See Manual on Usage & Style R. 3.01(a), 3.02 (Tex. L. Rev. eds., 15th ed. 2020).
See supra note 114 and accompanying text.
See Jennifer Wriggins, Rape, Racism, and the Law, 6 Harv. Women’s L.J. 103, 106 (1983); Harris, supra note 112, at 598–99; Jason A. Gillmer, Base Wretches and Black Wenches: A Story of Sex and Race, Violence and Compassion, During Slavery Times, 59 Ala. L. Rev. 1501, 1532 n.221 (2008) (“There is not a single published appellate decision in the South in the years before the Civil War involving a white man being prosecuted for raping a black woman. Cf. George v. State, 37 Miss. 316, 317 (1859) (discussing whether it was a crime for a black man to rape a black woman and holding that it was not).”).
Dorothy Roberts, Killing the Black Body: Race, Reproduction and the Meaning of Liberty 22–31 (1997); Harris, supra note 112, at 598–601 (describing history of Black women’s vulnerability to rape and lack of legal protection from slavery to twentieth century); Karen A. Getman, Sexual Control in the Slaveholding South: The Implementation and Maintenance of a Racial Caste System, 7 Harv. Women’s L.J. 115, 142 (1984) (“Viewing rape as an institutional crime critical to the maintenance of slavery still does not present the full picture, for it does not speak to the Black woman’s daily experience of rape or the threat of rape.”).
See, e.g., Crenshaw, supra note 110, at 1243 n.5 (describing statistics about sexual violence among lesbians); Scarlett & Weyrick, supra note 71, at 410; Nat’l Council on Disability, Not on the Radar: Sexual Assault of College Students with Disabilities 17 (2018), https://ncd.gov/sites/default/files/NCD_Not_on_the_Radar_Accessible.pdf [https://perma.cc/M7XD-G3CN] (explaining that 31.6% of female undergraduate college students with disabilities report nonconsensual sexual contact involving physical force or incapacitation compared to 18.4% of female undergraduate students without disabilities); Robyn Powell, How Betsy DeVos’ Title IX Actions Will Hurt Students with Disabilities, Rewire News Grp. (Oct. 24, 2017, 12:57 PM), https://rewirenewsgroup.com/article/2017/10/24/betsy-devos-title-ix-actions-will-hurt-students-disabilities/ [https://perma.cc/P22Z-TSVH]; Adrienne Green & Alia Wong, LGBT Students and Campus Sexual Assault, Atlantic (Sept. 22, 2015), https://www.theatlantic.com/education/archive/2015/09/campus-sexual-assault-lgbt-students/406684/ [https://perma.cc/9FRV-W9ZG] (bisexual women experience “especially disproportionate rates of sexual ‘victimization’”); Laura J. Blauenstein, Sexual Consent: Perception of Ambiguous Sexual Encounters of LGBTQ+ and Cisgender, Heterosexual Individuals (Aug. 2018) (manuscript at 38) (M.S.W. thesis, University of Nevada, Reno), https://scholarworks.unr.edu/bitstream/handle/11714/4526/Blauenstein_unr_0139M_12663.pdf [https://perma.cc/5NQD-67H5].
See Nancy Chi Cantalupo, “I Think You Didn’t Get It Because They Misidentified You as Latina”: A Commentary on Multiracials and Civil Rights: Mixed-Race Stories of Discrimination, 34 J. C.R. & Econ. Dev. 39, 41 (2021) (reviewing Tanya Katerí Hernández, Multiracials and Civil Rights: Mixed Stories of Discrimination (2018)) (“[A] set of distressing, yet rarely discussed, statistics found in the National Intimate Partner and Sexual Violence Survey (“NISVS”), showing that an average of one-in-two multiracial women experiences intimate partner or sexual violence in her lifetime, a form of discrimination that targets multiracial women at higher rates than any other demographic group in the U.S.”); Cantalupo, supra note 13, at 9 (“[M]ultiracial women experience sexual harassment 4.8% to 32.2% more than other racial groups of cisgender men or women . . . .” (citing Matthew J. Breiding et al., Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization—National Intimate Partner and Sexual Violence Survey, United States, 2011, Morbidity & Mortality Wkly. Rep., Sept. 5, 2014, at 5, https://www.cdc.gov/mmwr/pdf/ss/ss6308.pdf [https://perma.cc/2UKB-FEMT])).
Laura Dorwart, The Hidden #MeToo Epidemic: Sexual Assault Against Bisexual Women, Medium (Dec. 3, 2017), https://medium.com/@lauramdorwart/the-hidden-metooepidemic-sexual-assault-against-bisexual-women-95fe76c3330a [https://perma.cc/3G95-KBMN] (stating bisexual women are three times more likely to be raped than heterosexual women and more likely to be raped than lesbian women); Leigh Ann Davis, Arc, People with Intellectual Disabilities and Sexual Violence 1–2 (2011), https://www.thearc.org/document.doc?id=3657 [https://perma.cc/4WQJ-SNWN] (“Any type of disability appears to contribute to higher risk of victimization but intellectual disabilities, communication disorders, and behavioral disorders appear to contribute to very high levels of risk, and having multiple disabilities (e.g., intellectual disabilities and behavior disorders) result in even higher risk levels.”).
Jessica C. Harris & Chris Linder, Introduction to Intersections of Identity and Sexual Violence on Campus, supra note 14, at 1, 1 (“[W]e examined literature about campus sexual violence in the United States and exposed large gaps in research and practice, specifically related to historically minoritized students.”); id. at 2 (“[N]o studies explored predictive factors associated with men’s or trans* students’ experiences with sexual violence.”); id. at 6–7 (“Few scholars address issues concerning women of color and sexual violence; moreover, the little that is known is inconclusive. . . . Finally, the literature, or lack thereof, also points to the dearth of knowledge concerning sexual violence for women of color who do not identify as (only) Black.”).
Id. at 5 (explaining that these studies have been problematic as they offer only the binary choice of “man” or “woman,” and it is unclear whether these categories are intended to encompass merely biological sex or include other facets such as gender identity).
See Cantor et al., supra note 48, at 80; cf. Harris & Linder, supra note 124, at 6 (“Although a plethora of research examines male students as perpetrators of sexual violence, minimal research has focused on male students as survivors of sexual violence.”).
Naddia Cherre Palacios & Karla L. Aguilar, An Empowerment-Based Model of Sexual Violence Intervention and Prevention on Campus (“[S]tudent victims who identify as transgender, genderqueer, nonconforming, and questioning (TGNQ) report the highest rates of sexual violence and intimate partner violence, especially those belonging to racial minorities.” (citation omitted)), in Intersections of Identity and Sexual Violence on Campus, supra note 14, at 194, 200.
The history and definitions of sexual assault must also broaden to recognize the vulnerabilities associated with identifying with or being viewed as a “woman” or as “feminine,” even for those who may or may not identify as such. See Sara Matsuzaka & David E. Koch, Trans Feminine Sexual Violence Experiences: The Intersection of Transphobia and Misogyny, 34 Affilia: J. Women & Soc. Work 28, 29 (2019) (defining terms along gender spectrum); see also Darren Lenard Hutchinson, Ignoring the Sexualization of Race: Heteronormativity, Critical Race Theory and Anti-Racist Politics, 47 Buff. L. Rev. 1, 92 (1999) (“In a patriarchal society where masculinity is a source of privilege, men who deviate from or who are perceived as transgressing from the norm of masculinity (e.g., gay men or effeminate men), are marginalized and subordinate.” (footnote omitted)).
See Onwuachi-Willig, supra note 110, at 111, 119.
See Harris, supra note 112, at 599; Amii Larkin Barnard, The Application of Critical Race Feminism to the Anti-Lynching Movement: Black Women’s Fight Against Race and Gender Ideology, 1892–1920, 3 UCLA Women’s L.J 1, 38 (1993); Chris Linder, Reexamining Our Roots: A History of Racism and Antirape Activism, in Intersections of Identity and Sexual Violence on Campus, supra note 14, at 63–64; Brittany C. Slatton & April L. Richard, Black Women’s Experiences of Sexual Assault and Disclosure: Insights from the Margins, 14 Socio. Compass, Mar. 12, 2020, at 4 (“Black women face unique scrutiny when they speak out about their experience(s) of rape. They are perceived as blameworthy more often than White victims, are ‘less likely to have their cases come to trial, and less likely to have their trials result in conviction.’” (citations omitted) (quoting Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment 147–48 (2d ed. 2000))).
Crenshaw, supra note 110, at 1269 (describing a study showing the average prison term for a man convicted of raping a Black woman was two years, a Latina woman was five years, and a White woman was ten years).
Angela Onwuachi-Willig & Anthony V. Alfieri, (Re)Framing Race in Civil Rights Lawyering, 130 Yale L.J. 2052, 2064 (2021) (reviewing Henry Louis Gates, Jr., Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (2019)) (“The first lesson is that the white supremacist tropes, narratives, and images of the postbellum periods of Redemption and Jim Crow segregation continue to frame our legal consciousness of race. . . . [T]hey also shape the roles, mediate the relationships, and organize the methods of the lawyering process in civil-rights, poverty-law, and criminal cases.”).
Roxanne Donovan & Michelle Williams, Living at the Intersection: The Effects of Racism and Sexism on Black Rape Survivors, 25 Women & Therapy, 2002, at 97 (citations omitted).
This is a brief discussion of the many stereotypes that have harmed BIPOC women in the sexual assault context. This discussion is not intended to essentialize any group of BIPOC women or to imply that any individual experience is captured by them.
Lisa Rosenthal et al., Content of, Sources of, and Responses to Sexual Stereotypes of Black and Latinx Women and Men in the United States: A Qualitative Intersectional Exploration, 76 J. Soc. Issues 921, 924 (2020) (“Ghavami and Peplau found that racially/ethnically diverse (but predominantly Asian and white) US undergraduates identified stereotypes of . . . Black women as well as Latinx women and men as ‘promiscuous.’” (citing N. Ghavami & L.A. Peplau, An Intersectional Analysis of Gender and Ethnic Stereotypes: Testing Three Hypotheses, 37 Psych. Women Q. 113 (2013))).
Harris, supra note 114, at 55 (“Once again, the narratives of women of color are central to identifying and exposing oppressive structures that affect their experiences, specifically with sexual violence.” (citation omitted)).
Many have written about the erasure of BIPOC women in movements for social change, even where BIPOC women have played a large role in creating that change. This was prominent in the #MeToo movement where Alyssa Milano, a White actress, at first was given credit for the #MeToo movement when in fact it had been created a decade earlier by activist Tarana Burke, a Black woman. See Alanna Vagianos, The ‘Me Too’ Campaign Was Created by a Black Women 10 Years Ago, Huff. Post (Oct. 17, 2017, 1:44 PM), http://www.huffingtonpost.com/entry/the-me-too-campaign-was-created-by-a-black-woman-10-years-ago_us_59e61a7fe4b02a215b336fee [https://perma.cc/NZ7F-T8FS]. For analysis into the marginalization of Black feminists in historical feminist movements, see Linder, supra note 130, at 66–67, describing how mainstream White feminists consistently ignore Black women’s sexual violence organizing in 1970s.
Katherine Giscombe, Sexual Harassment and Women of Color (Blog Post), Catalyst (Feb. 13, 2018), https://www.catalyst.org/2018/02/13/sexual-harassment-and-women-of-color [https://perma.cc/CY3P-82SN] (describing how history of European colonization of Latin America, U.S. occupation in Asian countries, and slavery gave rise to stereotypes of women of color).
Crenshaw, supra note 110, at 1279 (“Jurors were less likely to believe in a defendant’s guilt when the victim was [B]lack. . . . [J]urors . . . were influenced by stereotypes of [B]lack women as more likely to consent to sex or as more sexually experienced and hence less harmed by the assault.”); Donovan & Williams, supra note 133, at 97–98 (“The Jezebel image is typically projected onto women who are perceived to be sexually promiscuous, lustful, and immoral. This stereotype can potentially be applied to women of all ethnic backgrounds; however, when race is considered, this image is often associated with Black women.”). This stereotype has its roots in the oppression and violence against Black women during slavery. See Roberts, supra note 120, at 10–11 (noting that, “[f]rom the moment they set foot in this country as slaves, Black women have fallen outside the American ideal of womanhood,” and “[t]he myth of the lascivious Black woman was systematically perpetuated after slavery ended”); supra notes 119–20 and accompanying text (describing history of rape & slavery).
Alexandra (Sandi) Pierce, “Sexual Savages:” Christian Stereotypes and Violence Against North America’s Native Women, in Religion and Men’s Violence Against Women 63, 63 (Andy J. Johnson ed., 2015); Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 Kan. J.L. & Pub. Pol’y 121, 125 (2004) (noting history of treating Native-American women differently under law because of “view[] [of] Native women as immoral and therefore unworthy of protection”). These stereotypes emerged under the colonial system to define Native-American women as threats to order. See Pierce, supra, at 63. Discriminatory laws continue to hamper sexual assault prosecutions of rapes of Native‑American women. See U.S. Gov’t Accountability Off., GAO-11-167R, U.S. Department of Justice Declinations of Indian Country Criminal Matters 3 (2010) (finding that U.S. Attorneys Offices “declined to prosecute . . . 67 percent of sexual abuse and related matters” referred to their offices for prosecution from Native-American reservations), https://www.gao.gov/assets/100/97229.pdf [https://perma.cc/EMR5-6JJT]; Ronet Bachman et al., Violence Against American Indian and Alaska Native Women and the Criminal Justice Response: What is Known 38 (2008) (finding that 57% of rape and sexual assault victimization against American-Indian and Alaska-Native women was committed by White offenders in 1992–2005), www.ncjrs.gov/pdffiles1/nij/grants/223691.pdf [https://perma.cc/K5TL-RUPS].
See Sumi K. Cho, Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong, 1 J. Gender, Race & Just. 177, 191 (1997) (“Asian Pacific women suffer greater harassment exposure due to racialized ascriptions (for example, they are exotic, hyper-eroticized, masochistic, desirous of sexual domination, etc.).”); Rachel Kuo, How Rape Culture and Racism Combine to Hurt Asian Women, Everyday Feminism (Jan. 2, 2017), https://everydayfeminism.com/2017/01/rape-culture-racism-asian-women/ [https://perma.cc/57CF-P7XT] (“[S]tereotypes leveraged against East Asian women have been normalized, just like rape culture. These tropes can be found in representations in media, comments that harass us sexually and racially, and ways we’re constructed via laws and policy.”). These sexualized stereotypes of Asian women are further reinforced by the “model minority myth” of Asian Americans, which brings together blanket assumptions about groupwide assimilationist success and presumptions of “political passivity and submissiveness to authority.” Cho, supra, at 185. See generally Sunny Woan, White Sexual Imperialism: A Theory of Asian Feminist Jurisprudence, 14 Wash. & Lee J. C.R. & Soc. Just. 275 (2008) (examining how sexual violence by White men against Asian women results directly from legacy of Western imperialism in Asia).
Latina women may also be subject to different and compounded stereotypes based on their racial identification. Although the nuanced distinction between race and ethnicity deserves more attention, for purposes of this Article I include the Latinx community within discussions of racial minorities and Black, Indigenous, and People of Color (BIPOC).
Waleska Suero, Comment, “We Don’t Think of It as Sexual Harassment”: The Intersection of Gender & Ethnicity on Latinas’ Workplace Sexual Harassment Claims, 33 Chicana/o–Latina/o L. Rev. 129, 143 (2015); see Maria L. Ontiveros, Three Perspectives on Workplace Harassment of Women of Color, 23 Golden Gate U. L. Rev. 817, 820 (1993) (“[S]ociety considers Latinas naturally sexual . . . evoking the image of the ‘hot-blooded’ Latin.”). The history of violence and rape against Latina women traces back to the European colonization of Latin American countries. See Giscombe, supra note 138. Additionally, “Latina bodies have long been fetishized, ‘sexualized and eroticized’ in the United States and in Europe.” Suero, supra, at 142–43 (quoting Isabel Molina Guzmán & Angharad N. Valdivia, Brain, Brow, and Booty: Latina Iconicity in U.S. Popular Culture, 7 Commc’n Rev. 205, 211 (2004)).
Ontiveros, supra note 143, at 820. Within the Latinx community, Latina women are stereotyped as “sensual and sexually responsive” in order to “satisfy [their] hot-blooded, passionate [Latino] partner[s].” See Jenny Rivera, Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials, 14 B.C. Third World L.J. 231, 240–41 (1994).
Cantalupo, supra note 13, at 17.
Giscombe, supra note 138.
E-mail from Kelsey Scarlett, Boston Univ. Sch. of L., to Naomi M. Mann, Clinical Assoc. Professor of L., Boston Univ. Sch. of L. (Oct. 8, 2021, 16:35 EDT) (on file with author).
Gwen Aviles, Terry Crews: Black Men Not Recognized as Victim 'Until We’re Dead,’ NBC News (June 8, 2020, 10:22 AM), https://www.nbcnews.com/news/nbcblk/terry-crews-black-men-not-recognized-victims-until-we-re-n1225636 [https://perma.cc/YM24-WS7H] (discussing how Black men “[ha]ve always been seen as a threat” despite experiences of sexual assault and victimization).
Cantalupo, supra note 13, at 11 (noting that the criminal law model used in Title IX “has relied on racialized sex stereotyping of both women of color and African American men to a significant extent”). For analysis into gendered effects of sexualized stereotypes on different racial groups, see Hutchinson, supra note 128, at 79–80, stating, “While each marginalized racial group has a unique history of sexualized racial oppression, they share a similar history of racial hierarchy executed by sexual repression and violence. Furthermore, white supremacist culture has assigned a battery of sexual stereotypes to each marginalized racial group . . . .” and id. at 81–96, discussing sexualized stereotypes of Black, Latinx, and Asian American men and women.
Onwuachi-Willig, supra note 110, at 108–09 (“[R]ecognizing the multidimensional nature of discrimination and subordination is critical because solutions to one form of subordination cannot be provided ‘without analyzing how [the subordination] is affected and shaped by other systems of domination.’” (alteration in original) (quoting Darren Lenard Hutchinson, Identity Crisis: ‘Intersectionality,’ ‘Multidimensionality,’ and the Development of an Adequate Theory of Subordination, 6 Mich. J. Race & L. 285, 308 (2001))). It is important to consider the perpetrator’s race and how that impacts societal responses to sexual assault, as this country’s cultural and legal understanding of rape was influenced by a history of Black men who were lynched following false accusations of sexual harassment and violence against White women. See Maureen Downey, Opinion: Rolling Back Title IX Threatens Racial and Gender Justice, Atlanta J.-Const. (May 6, 2020), https://www.ajc.com/blog/get-schooled/opinion-rolling-back-title-threatens-racial-and-gender-justice/HLXwfxxBt4Xm9jyNKsUuDL/ [https://perma.cc/P7KZ-RHZ3]. However, 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].” Crenshaw, supra note 110, at 1277 (“Black women are considered victims of discrimination only to the extent that white men can rape them without fear of significant punishment. Rather than being viewed as victims of discrimination in their own right, they become merely the means by which discrimination against Black men can be recognized.”).
See Athena D. Mutua, Multidimensionality Is to Masculinities What Intersectionality Is to Feminism, 13 Nev. L.J. 341, 345–47, 355–56, 358–59 (2013) (describing the development of multidimensionality theory to analyze “partially privileged identities” as a response, in part, to perceived limitations of intersectionality). However, due to intersectionality as “a powerful metaphor and analytical framework that has matured and gone global” since its original theory, Mutua notes that “much of what can be analyzed by employing the multidimensionality framework can also be analyzed through intersectionality theory.” Id. at 342.
See Hutchinson, supra note 128, at 81–83 (“The sexualized oppression directed at blacks, given a patriarchal social structure, has produced gendered effects—creating different experiences for black men and black women.”).
Multidimensionality “is a framework that guides analysis of patterns and interactions between complex hierarchical systems ‘and the social identity categories around which social power and disempowerment are distributed.’” Mutua, supra note 151, at 354 (quoting Hutchinson, supra note 150, at 309). For discussion of the five tenets of multidimensionality as articulated by Mutua, see id. at 355 n.79. Ann C. McGinley and Frank Rudy Cooper further boil these five insights down into two principles: “(1) identities are co-constituted and (2) identities are context-dependent.” Ann C. McGinley & Frank Rudy Cooper, Identities Cubed: Perspectives on Multidimensional Masculinities Theory, 13 Nev. L.J. 326, 334 (2013) (“A multidimensional approach argues that since identities are co-constituted, race, gender, class, sexual orientation, and other discrete identities are actually intertwined within one another and cannot be understood in isolation. . . . A multidimensional approach also argues that the meanings of discrete identities, even when understood in light of their co-constituted nature, interact differently in different settings.”).
Onwuachi-Willig, supra note 110, at 108.
However, this narrative ignores those who do not fit the traditional category of “male.” See Hutchinson, supra note 128, at 92 (“In a patriarchal society where masculinity is a source of privilege, men who deviate from or who are perceived as transgressing from the norm of masculinity (e.g., gay men or effeminate men), are marginalized and subordinate.”); see also Mutua, supra note 151, at 345–46 (“[T]he interpretation of black men as privileged by gender and oppressed by race appeared incorrect in our observations of racial profiling . . . [and] did not capture the harsher treatment black men seemed to face, not only in the context of anonymous public space that often characterized racial profiling, but also in terms of higher rates of hyper incarceration, death by homicide and certain diseases, suicide rates, and high unemployment as compared to black women.”).
Onwuachi-Willig & Alfieri, supra note 132, at 2056–61 (describing the interaction between Philando Castile and Police Officer Yanez: “In the end, Yanez saw what society had taught him to see in black people and, in this instance, black men: danger. Yanez saw defiance and a disregard for the rules from a man known for his careful attention to instruction and directions. And, in turn, Yanez felt what society had shown him to feel in response: trepidation and fear.”); Hutchinson, supra note 128, at 81 (“In America’s racially hierarchical society, black men are constructed as promiscuous, threatening to white women and as possessing an unmatched sexual prowess.”); id. at 82–83 (describing how lynchings were justified by the view that Black male heterosexuality was a violent threat to white women, even where rape was not alleged).
Gates, supra note 132, at 146.
Cantalupo, supra note 13, at 16.
Id. (citing Christopher D. Maxwell et al., The Impact of Race on the Adjudication of Sexual Assault and Other Violent Crimes, 31 J. Crim. Just. 523, 526–27, 533–34 (2003)); see, e.g., Crenshaw, supra note 110, at 1275–76 (summarizing studies that found Black men accused of raping White women were treated more harshly than Black offenders accused of raping Black women).
Travis Riddle & Stacey Sinclair, Racial Disparities in School-Based Disciplinary Actions Are Associated with County-Level Rates of Racial Bias, 116 PNAS 8255, 8255 (2019) (“[B]lack students are more likely to be seen as problematic and more likely to be punished than white students are for the same offenses.”); Matthew C. Fadus et al., Racial Disparities in Elementary School Disciplinary Actions: Findings from the ABCD Study, 60 J. Am. Acad. Child & Adolescent Psychiatry 998, 1003 (2021) (“Systemic racism, as well as explicit individual racism and unconscious biases, likely play a role in the disciplinary process of children; studies have shown that Black children are more often incorrectly judged to be older and less innocent-appearing than peers, are misconceived as insubordinate and aggressive, and are therefore treated as though they require less comfort . . . .”).
Cantalupo, supra note 13, at 73 (discussing the lack of research regarding the race of male respondents in colleges); cf. Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nev. L.J. 107, 124, 127 (2017) (noting that colleges do not collect data on the intersections of discipline and race).
Brake, supra note 13, at 144–45 (“To date, there is no data on the racial impact of campus discipline for sexual assault, which is itself problematic.”); Cantalupo, supra note 77, at 309 (“In fact, the campus proceedings used to resolve complaints of sexual harassment are overwhelmingly nonpublic and therefore provide almost no actual data about the demographics of campus sexual harassment.”); Commonly Requested FERPA Records, Student Press L. Ctr., https://splc.org/commonly-requested-ferpa-records/ [https://perma.cc/2J83-ZJVE] (last visited Sept. 13, 2021) (explaining that while FERPA “expressly exempts and does not prohibit disclosure of the final results of disciplinary proceedings against students who committed serious crimes, including sex crimes[,]” educational institutions still use FERPA as a reason to deny the disclosure of student information regarding sexual assaults).
See Brake, supra note 13, at 144 (“The risk that OCR’s Title IX enforcement will over-police men of color is very real given that school discipline overall, like criminal law enforcement, is marred by racial disparities—a problem OCR itself has highlighted in its enforcement efforts under Title VI of the Civil Rights Act of 1964.”).
Athena D. Mutua, The Multidimensional Turn: Revisiting Progressive Black Masculinities, in Masculinities and the Law: A Multidimensional Approach 78, 80 (Frank Rudy Cooper & Ann C. McGinley eds., 2012) (describing the Progressive Black Masculinities project as inclusive of combatting patriarchy and sexism in addition to racism as it “rejects arrangements that depend on the subordination and oppression of others”).
See Ruth Lawlor, How the Trump Administration’s Title IX Proposals Threaten to Undo #MeToo, Wash. Post (Feb. 4, 2019), https://www.washingtonpost.com/outlook/2019/02/04/how-trump-administrations-title-ix-proposals-threaten-undo-metoo [https://perma.cc/6DZX-FP79] (“In reality, however, the changes simply roll back protections for sexual assault victims, while doing nothing to actually address the issue of racial bias in rape cases. This is because the proposed changes center on a false dichotomy, one that frames civil rights for men of color and protections for rape victims as a zero-sum game.”).
See, e.g., Cantalupo, supra note 77, at 319–21 (describing how the dominant narrative of the White female complainant and the Black male respondent serves to obfuscate the power dynamics in Title IX implementation, which privilege White male cisgender respondents and erase women of color as complainants); id. at 319 (“Because the narrative presents all complainants as white women and all accused students as black men, it treats women of color as invisible, even when women of color are actually complainants.”).
Crenshaw, supra note 110, at 1269.
Id. at 1277.
I do not intend to assert that all of those concerned about respondents’ rights have been prompted solely by concern about White respondents. Scholars have raised important concerns about how structural racism within college disciplinary systems would impact respondents of color. See, e.g., Aya Gruber, Rape Law Revisited, 13 Ohio St. J. Crim. L. 279, 296–97 (2016) (cautioning the increase of state carceral power and university disciplinary authority because of implications for marginalized individuals); I. Bennett Capers, The Unintentional Rapist, 87 Wash. U. L. Rev. 1345, 1367 (2010) (“[I]n attempting to eradicate sexism in rape laws, feminist scholars have entrenched an approach to analyzing rape allegations that is, if not overtly racist, very much racialized.”).
Brake, supra note 13, at 148; cf. Cantalupo, supra note 77, at 311 (describing how the due process focus in the DeVos DOE was “part of a campaign by a number of coordinated groups . . . to undermine the rights of not only harassment victims but also those accused students who are overwhelmingly African American. . . . [I]t seeks to convince the public that dismantling Title IX protections for sexual harassment victims will better protect students of color’s due process rights, while distracting attention from Trump officials’ quiet dismantling of Obama-era efforts to stop disproportionate school discipline of black students”).
See Cantalupo, supra note 77, at 320–21 (detailing how dominant narratives regarding complainant and respondent identities affect how they are treated by educational institutions in the Title IX context); Brake, supra note 13, at 139 (recognizing there is a “clash of narratives” between student survivors and accused students and “[w]hichever story is most salient and comes foremost to mind has an outsized power to shape public policy”); Harris & Linder, supra note 14, at xiii–xiv (discussing how archetypal survivors are seen as “[s]tereotypically pretty, apparently white, cisgender, heterosexual women” and “Black male athletes [are seen] as perpetrators”).
Green & Stolberg, supra note 80 (reporting that Candice Jackson referred to 90% of sexual assault accusations as being suspect); Alanna Vagianos, Devos: ‘I Don’t Know’ Whether Sexual Assaults Outnumber False Accusations, HuffPost, https://www.huffpost.com/entry/devos-i-dont-know-whether-sexual-assaults-outnumber-false-accusations_n_5aa67531e4b086698a9f9fa4 [https://perma.cc/6WFY-QQSP] (Mar. 13, 2018).
2021 Q&A, supra note 86, at 31 (“The 2020 amendments explain that the grievance process required for formal sexual harassment complaints does not apply to complaints alleging discrimination based on pregnancy, different treatment based on sex, or other forms of sex discrimination.” (citing 34 C.F.R. § 106.45 (which specifically refers to the processes as those for “formal complaints of sexual harassment”))).
See U.S. Const. amends. V, XIV (providing that neither the state nor the federal government shall deprive any person “of life, liberty, or property, without due process of law”). The Fourteenth Amendment’s due process clause applies only to state action, meaning that only state schools, and not private schools, are covered by its requirements. See Plummer v. Univ. of Hous., 860 F.3d 767, 773 (5th Cir. 2017) (explaining that “due process requires notice and some opportunity for hearing . . . at a tax-supported college” (quoting Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158 (5th Cir. 1961))).
See, e.g., J. Brad Reich, When Is Due Process Due?: Title IX, “The State,” and Public College and University Sexual Violence Procedures, 11 Charleston L. Rev. 1, 22 (2017) (describing sexual violence procedures at public colleges and universities as “different” from other disciplinary proceedings “because the information gathered in campus procedures may well be used against the alleged offender in the criminal justice system”).
It is important to note here some statistics about the formal Title IX process, including how many cases actually impose sanctions. Only about 25% of cases that are reported are adjudicated through the formal Title IX process. See Tara N. Richards, No Evidence of “Weaponized Title IX” Here: An Empirical Assessment of Sexual Misconduct Reporting, Case Processing, and Outcomes, 43 Law & Hum. Behav. 180, 187 (2019). Of those that are formally adjudicated, less than half resulted in a finding of responsibility, and less than half of adjudications resulting in findings of sexual misconduct resulted in suspension or expulsion for responsible party. Id. Of students found responsible for sexual misconduct, 28.57% were suspended and 18.49% were expelled. Id.; see also Tyler Kingkade, Fewer Than One-Third of Campus Sexual Assault Cases Result in Expulsion, HuffPost, https://www.huffpost.com/entry/campus-sexual-assault_n_5888742 [https://perma.cc/VFF2-DXC5] (Dec. 6, 2017) (“Students found responsible for sexual assault were expelled in 30 percent of cases and suspended in 47 percent of cases, according to The Huffington Post’s review of data collected from nearly three dozen colleges and universities.”); Nick Anderson, Colleges Often Reluctant to Expel for Sexual Violence—with U-Va. a Prime Example, Wash. Post (Dec. 15, 2014), https://www.washingtonpost.com/local/education/colleges-often-reluctant-to-expel-for-sexual-violence---with-u-va-a-prime-example/2014/12/15/307c5648-7b4e-11e4-b821-503cc7efed9e_story.html [https://perma.cc/9DX6-VYGQ].
Carson & Nesbitt, supra note 21, at 333 (“[T]he most severe outcome of a campus case is expulsion.”). Even when students are expelled, they may not face serious repercussions for their conduct. See Kenny Jacoby, A Football Star Was Expelled for Rape Twice. A Secret Deal Scrubbed It from His Transcript, USA Today, https://www.usatoday.com/in-depth/news/investigations/2019/12/12/oregon-ducks-player-accused-rape-plays-different-ncaa-school/4366387002/ [https://perma.cc/RD2U-CM4X] (Dec. 16, 2019, 11:09 AM) (noting how a student expelled for rape—twice—was then able to play NCAA football at another school because of a “confidential deal” facilitated by the DeVos DOE); Cantalupo, supra note 77, at 333 & n.143 (describing anecdotal evidence of cases where students found responsible for sexual assault were not expelled and were able to transfer schools).
Doe v. Univ. of Cincinnati, 872 F.3d 393, 399 (6th Cir. 2017) (“[A]llegations of sexual assault may ‘impugn [a student’s] reputation and integrity, thus implicating a protected liberty interest.’” (alteration in original) (quoting Doe v. Cummins, 662 F. App’x 437, 445 (6th Cir. 2016))); Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018) (“Being labeled a sex offender by a university has both an immediate and lasting impact on a student’s life. The student may be forced to withdraw from his classes and move out of his university housing. His personal relationships might suffer. And he could face difficulty obtaining educational and employment opportunities down the road, especially if he is expelled.” (citations omitted)).
See supra note 174 and accompanying text.
The right was not disputed in the K–12 context given the right to public education for those grade levels. See Goss v. Lopez, 419 U.S. 565, 573–74 (1975) (asserting that students “plainly had legitimate claims of entitlement to a public education” in the K–12 context as state statute provided it).
See, e.g., Doe v. Univ. of Conn., No. 20CV92, 2020 WL 406356, at *3 (D. Conn. Jan. 23, 2020); Doe v. Rector of George Mason Univ., 132 F. Supp. 3d 712, 723–24 (E.D. Va. 2015); Doe v. Alger, 175 F. Supp. 3d 646, 657–60 (W.D. Va. 2016) (finding liberty and property interests); Plummer v. Univ. of Hous., 860 F.3d 767, 773 (5th Cir. 2017); Univ. of Cincinnati, 872 F.3d at 399.
See, e.g., Doe v. Pa. State Univ., 336 F. Supp. 3d 441, 446–47 (M.D. Pa. 2018); Messeri v. Univ. of Colo., No. 18-CV-2658, 2019 WL 4597875, at *9 (D. Colo. Sept. 23, 2019).
Mann, supra note 92, at 646, 667–68.
Id. at 652; Carson & Nesbitt, supra note 21, at 333 (“Whereas the most severe outcome of a campus case is expulsion, the deprivation of a property and a minimal liberty interest, criminal cases can result in a complete loss of liberty through incarceration.”).
These rights have often been asserted in popular discourse as applicable to private educational institutions. See Bartholet et al., supra note 16 (stating that the then‑existing policies at Harvard, a private educational institution, lack “the most basic elements of fairness and due process”). However, federal constitutional procedural due process protections do not attach where there is no state actor. Cf. Plummer, 860 F.3d at 773.
Mann, supra note 92, at 652; see also Carson & Nesbitt, supra note 21, at 333 (“Whereas the most severe outcome of a campus case is expulsion, the deprivation of a property and a minimal liberty interest, criminal cases can result in a complete loss of liberty through incarceration.” (citations omitted)).
Mann, supra note 92, at 634.
Letter from Ted Mitchell, President, Am. Council on Educ., to Suzanne B. Goldberg, Acting Assistant Sec’y, Off. for C.R. 3 (June 10, 2021) [hereinafter ACE Letter], https://www.acenet.edu/Documents/Comments-ED-OCR-Title-IX-Hearing-061021.pdf [https://perma.cc/AT8N-U8DR].
See, e.g., Nancy Chi Cantalupo, Keynote Speech, Title IX & the Civil Rights Approach to Sexual Harassment in Education, 25 Roger Williams U. L. Rev. 225, 228 (2020) (noting that quasi-criminalization of Title IX undermines protection for victims because it shifts “focus from the rights of the discrimination victim to the rights of the accused harasser”); Cantalupo, supra note 77, at 325 (arguing that criminalization of civil rights law impedes its equality function because the goals of the criminal justice system conflict with civil rights goals). This Article focuses on the harms related to this analysis of the 2020 Rule.
Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L.J.F. 281, 284 (2016).
See, e.g., Cantalupo, supra note 77, at 331 (“Those seeking to criminalize Title IX insist that only the criminal standards of proof are fair to accused students, an argument showing in and of itself that criminalization proponents are not concerned about the rights of all students but simply with those of accused students. However, if one considers all students, then it quickly becomes clear that the . . . preponderance standard comes closest to treating both parties equally.” (emphasis omitted)).
See Cantalupo, supra note 77, at 228.
See supra Section III.A on procedural due process for a fuller analysis of this point.
Cantalupo, supra note 190, at 284–85 (“[T]he criminal system is primarily focused on the defendant’s, not the victim’s, rights.”).
Brake, supra note 13, at 133–34 (arguing that raising the standard of proof in Title IX adjudications from preponderance of the evidence to clear and convincing evidence “expresses skepticism of complainants’ stories by insisting on extra assurance that the presumptively unexpected outcome is the truthful one”).
See Sexual Violence Letter, supra note 30, at 10–11 (explaining why preponderance of the evidence is consistent with discrimination practice and that a higher standard such as clear and convincing evidence would violate Title IX as it is “not equitable”); see also Baker et al., supra note 49, at 9–10 (explaining why preponderance of the evidence is the only equitable standard).
See Carson & Nesbitt, supra note 21, at 333; Mann, supra note 92, at 667.
See supra note 176 and accompanying text; Carson & Nesbitt, supra note 21, at 333.
See supra note 162 and accompanying text. Employment applications, licensures, and housing applications, to name a few, often inquire about criminal records.
See supra Section III.A.
See sources cited supra note 178.
Whiting v. Univ. of S. Miss., 451 F.3d 339, 344 (5th Cir. 2006) (“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” (quoting Bd. of Regents v. Roth, 408 U.S. 564, 566–67 (1972))); Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018) (“Being labeled a sex offender by a university has both an immediate and lasting impact on a student’s life. The student may be forced to withdraw from his classes and move out of his university housing. His personal relationships might suffer. And he could face difficulty obtaining educational and employment opportunities down the road, especially if he is expelled.”).
See supra note 178 and accompanying text; Michael Powell, Trump Overhaul of Campus Sex Assault Rules Wins Surprising Support, N.Y. Times (June 25, 2020), https://www.nytimes.com/2020/06/25/us/college-sex-assault-rules.html [https://perma.cc/Q4SL-8UU6].
See Cauterucci, supra note 58 (explaining how BYU’s policy marginalized and retaliated against survivors); Carson & Nesbitt, supra note 21, at 322 (survivors face a multitude of harms as a result of campus sexual assault); see, e.g., Doe v. Erskine Coll., No. 8:04–23001RBH, 2006 WL 1473853, at *7, *11 (D.S.C. May 25, 2006) (where school’s internal investigation determined male perpetrator was “very bright, very intelligent, and going places,” survivor of sexual assault suffered significant reputational harm when she became known as “rape girl” on campus and subsequently attempted to commit suicide).
See Messeri v. Univ. of Colo., No. 18-CV-2658, 2019 WL 4597875, at *20–21 (D. Colo. Sept. 23, 2019); Winter v. Pa. State Univ., 172 F. Supp. 3d 756, 765–66 (M.D. Pa. 2016); Doe v. Rector of George Mason Univ., 132 F. Supp. 3d 712, 722 (E.D. Va. 2015).
Paul v. Davis, 424 U.S. 693, 701 (1976) (the caselaw “does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause”).
Doe v. Alger, 175 F. Supp. 3d 646, 655 (W.D. Va. 2016) (plaintiff “allege[d] that he ha[d] a constitutionally protected liberty interest in his good name”).
Id. (plaintiff argued that the notation would “substantially limit or foreclose both future educational and employment opportunities”).
Id. at 660.
See, e.g., Mann, supra note 92, at 670–72; Nancy Chi Cantalupo, Civil Rights Investigations and Comprehensive Prevention of Sexual Misconduct, in Adjudicating Campus Sexual Misconduct and Assault: Controversies and Challenges 91, 94–95, 97 (Claire M. Renzetti & Diane R. Follingstad eds., 2019).
Anderson, supra note 13, at 1985–86.
Id. at 1986 & n.254.
Id. at 1985–86.
See id. at 2000 (“The history of attempting to deter legitimate complaints of rape by imposing unique procedural hurdles is too clear to ignore.”).
Doe v. Univ. of Cincinnati, 872 F.3d 393, 400 (6th Cir. 2017) (the university “is not required to ‘transform its classrooms into courtrooms’ in pursuit of a more reliable disciplinary outcome” (quoting Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1250 (E.D. Mich. 1984))).
See, e.g., ACE Letter, supra note 188, at 2–3 (describing the negative impacts of the 2020 Rule on schools’ ability to meet Title IX); McKenzie Javorka & Rebecca Campbell, “This Isn’t Just a Police Issue”: Tensions Between Criminal Justice and University Responses to Sexual Assault Among College Students, 67 Am. J. Cmty. Psych. 152, 158 (2021) (“As a result of this emphasis on criminal justice responses, participants noted that universities may be failing to protect the civil and educational rights of survivors . . . .”).
ACE Letter, supra note 188, at 3 (“These legalistic and counterintuitive requirements have made it more difficult for campuses to prevent and address sexual assault, protect survivors, and treat both parties fairly and equitably.”).
Id. (“[T]he Regulations are antithetical to the fundamental educational nature and objectives of campus student disciplinary processes. Campuses can best respond to allegations of sexual assault by using processes that are part of, or at least align with, their institutional student codes of conduct. These codes do not, as a first priority, seek to punish.” (emphasis omitted)).
Id. (noting that the 2020 Rule impedes the objectives of campus student disciplinary processes, which includes protecting survivors).
Id. at 2 (“Colleges and universities are not civil or criminal courts, nor should they be.”).
Carson & Nesbitt, supra note 21, at 333 (“Campus codes of conduct allow schools to adjudicate cases of arson, assault, and theft because, as courts have long recognized, schools have the right to discipline conduct—including conduct constituting a crime—that interferes with the educational environment or undercuts the institution’s legitimate pedagogical goals.”); ACE Letter, supra note 188, at 1 (“Higher education institutions understand that they have a clear, unambiguous responsibility under Title IX to promptly and effectively respond to allegations of sexual harassment, including sexual assault.”).
Mann, supra note 92, at 650 (footnotes omitted).
Goss v. Lopez, 419 U.S. 565, 583 (1975); see also Raul Romero, Comment, An Erroneous Shift in Perspective: How Cross-Examinations Forsake Constitutional Jurisprudence and the Purpose of Title IX, 53 Tex. Tech L. Rev. 377, 412 (2021) (“Due to the cost and administrative challenges schools will face in implementing, not only cross-examination, but all the procedural protections that come with a trial, this proposition would be almost unrealistic.”).
ACE Letter, supra note 188, at 3 (“These legalistic and counterintuitive requirements have made it more difficult for campuses to prevent and address sexual assault, protect survivors, and treat both parties fairly and equitably.”); cf. Letter from Nat’l Educ. Ass’n to Brittany Bull, U.S. Dep’t of Educ. 1 (Jan. 30, 2019), https://downloads.regulations.gov/ED-2018-OCR-0064-17760/attachment_1.pdf [https://perma.cc/QDZ5-Y6E4] (arguing that, in the K–12 context, the then-proposed Rule would “drastically scale back schools’ ability to address sexual harassment”).
In the civil context, the potential remedy is usually monetary, which does not address or remedy the harm the survivor has experienced or enable them to keep accessing their education on an equal basis. See Alexandra Willingham, Note, Opening the Door: Expanding Civil Redress for Sexual Assault Through Fraternity Insurance, 72 Stan. L. Rev. 1717, 1727–28 (2020) (discussing civil remedies). In the criminal context, it is society, not the survivor, who is seen as the plaintiff/victim and the remedy is focused on punishing the respondent, which again does not provide the survivor with what they need to continue to equally access their education. See Carson & Nesbitt, supra note 21, at 333; Why Schools Handle Sexual Violence Reports, Know Your IX, https://www.knowyourix.org/issues/schools-handle-sexual-violence-reports/ [https://perma.cc/DLW3-UTNA] (last visited Sept. 15, 2021); Kelly Alison Behre, Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims’ Attorneys, 65 Drake L. Rev. 293, 326 (2017) (“Victims of sexual assault often do not define justice in the way that aligns with the criminal justice system.”).
Mann, supra note 92, at 640. Under the 2020 Rule, any measures that affect the respondent may be instituted by the school only after a finding under the grievance process. 34 C.F.R. § 106.44(a); Judith Lewis Herman, Justice from the Victim’s Perspective, 11 Violence Against Women 571, 574 (2005) (“The wishes and needs of victims are often diametrically opposed to the requirements of legal proceedings. Victims need social acknowledgement and support; the court requires them to endure a public challenge to their credibility. Victims need to establish a sense of power and control over their lives; the court requires them to submit to a complex set of rules and bureaucratic procedures that they may not understand and over which they have no control. Victims need an opportunity to tell their stories in their own way, in a setting of their choice; the court requires them to respond to a set of yes-or-no questions that a break down any personal attempt to construct a coherent and meaningful narrative.”).
ACE Letter, supra note 188, at 3 (explaining that the purpose of codes of conduct are not to punish but rather to focus on a fair resolution and the impact on the community); All. for Safety & Just., Crime Survivors Speak 24 (2016), https://allianceforsafetyandjustice.org/wp-content/uploads/documents/Crime Survivors Speak Report.pdf [https://perma.cc/927X-U23C] (displaying data that serious crime survivors would prefer prosecutors to focus on solving community problems rather than focusing on convictions).
Carson & Nesbitt, supra note 21, at 333 (“Campus codes of conduct allow schools to adjudicate cases of arson, assault, and theft because, as courts have long recognized, schools have the right to discipline conduct—including conduct constituting a crime—that interferes with the educational environment or undercuts the institution’s legitimate pedagogical goals.” (footnote omitted)); Sexual Violence Letter, supra note 30, at 8 (“Therefore, a recipient may use student disciplinary procedures or other separate procedures to resolve such complaints. . . . Grievance procedures generally may include voluntary informal mechanisms (e.g., mediation) for resolving some types of sexual harassment complaints.”).
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 leaves recipients with wide discretion to utilize informal resolution processes.”).
Mann, supra note 92, at 640. Under the 2020 Rule, schools cannot take measures that affect the respondent until the conclusion of the grievance process. See 34 C.F.R. § 106.45(b)(1)(i) (schools must follow “a grievance process that complies with this section before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent”).
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. at 30,274 (“The final regulations revise another provision, § 106.45(b)(1)(i), to specify that remedies designed to restore or preserve equal access to the recipient’s education program or activity may include the same individualized services described in § 106.30 ‘supportive measures,’ but that remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.”).
ACE Letter, supra note 188, at 1 (“Higher education institutions understand that they have a clear, unambiguous responsibility under Title IX to promptly and effectively respond to allegations of sexual harassment, including sexual assault. . . . Doing so requires policies and procedures that are appropriate for the particular institution . . . .”); see also 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 20 (2001) (“[Grievance] [p]rocedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience.”).
34 C.F.R. § 106.45(b).
Id. § 106.45(b)(6)(i).
ACE Letter, supra note 188, at 1–3.
Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1250 (E.D. Mich. 1984) (“While a university cannot ignore its duty to treat its students fairly, neither is it required to transform its classrooms into courtrooms.”).
See, e.g., ACE Letter, supra note 188, at 2 (“[The Rule] transforms institutional disciplinary processes into complex and expensive prosecutorial proceedings . . . . Colleges and universities are not civil or criminal courts, nor should they be. The notion that they should establish a parallel judicial structure to accomplish what the judicial system is already responsible for makes no sense.”); Erica L. Green, DeVos’s Rules Bolster Rights of Students Accused of Sexual Misconduct, N.Y. Times, https://www.nytimes.com/2020/05/06/us/politics/campus-sexual-misconduct-betsy-devos.html [https://perma.cc/CY8Y-VTDW] (Sept. 22, 2020) (“The new regulations . . . require colleges to hold live hearings during which accusers and accused can be cross-examined to challenge their credibility.”).
See ACE Letter, supra note 188, at 7 (“Given the trial-like complexity of the processes mandated by the Regulations, campuses also must continually spend significant time and money training new staff, and refreshing existing staff, on these new procedures, as well as hiring outside counsel to advise them on compliance with these requirements.”).
Maryam Ahranjani et al., Comment on Proposed Rule Concerning Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (Feb. 15, 2019), https://harvardjlg.com/wp-content/uploads/sites/19/2020/03/93-Law-Professor-Comment-on-Title-IX-Questions-as-Filed.pdf [https://perma.cc/BEU5-6KET].
Id.
ACE Letter, supra note 188, at 3; Dep’t of Educ., Summary of Major Provisions of the Department of Education’s Title IX Final Rule 7, https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf [https://perma.cc/B5MY-6572].
ACE Letter, supra note 188, at 3–4 (“[The] ‘live hearing’ with direct cross‑examination . . . . raises serious equity concerns, as it can tip the scales in favor of a party who is able and motivated to pay for a high-priced litigator, while the other may not be willing or motivated to do so.”).
See id. at 7 (describing the varied costs the new regulation imposes on schools); R. Shep Melnick, Analyzing the Department of Education’s Final Title IX Rules on Sexual Misconduct, Brookings (June 11, 2020), https://www.brookings.edu/research/analyzing-the-department-of-educations-final-title-ix-rules-on-sexual-misconduct/ [https://perma.cc/V5ZK-N3CL].
See Mann, supra note 92, at 644–46. For a review of the models that schools have used in Title IX adjudication, see id.
Ahranjani et al., supra note 239 (pointing out eighty areas of confusion in the proposed rule).
Anderson, supra note 13, at 2000 (“We should learn from that history and oppose efforts to provide respondents accused of sexual misconduct on campus with special procedural protections that would not be provided to them if they were accused of plagiarism, nonsexual assault, burglary, or even, occasionally, homicide on campus.”).
Id. at 1985, 2000; see also Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026, 30,264 (May 19, 2020) (to be codified at 34 C.F.R. pt. 106) (“Commenters asserted that currently there is no presumption of non-responsibility for respondents in other student misconduct proceedings, such as theft, cheating, plagiarism, and even physical assault. Commenters argued that if the Department believes such a presumption is important in sexual misconduct cases, then it should require the presumption in all student misconduct cases for the sake of uniformity.”).
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. at 30,264; see Anderson, supra note 13, at 1985, 1998 (“It would be unfair to single out sexual assault cases among all crimes committed on campus and push them to the criminal courts. It would harm the learning environment, deprive victims of equal educational opportunities, and violate students’ civil rights under Title IX.”).
See, e.g., Scarlett & Weyrick, supra note 71, at 394, 429, 432.
See Anderson, supra note 13, at 1985–86 (noting—correctly—that those who advocate for increased due process protection “must make the case for why respondents in campus sexual assault cases should enjoy uniquely favorable rights—or make the case for increased process rights for all students accused of misconduct—neither of which, so far, they have done”).
Mann, supra note 92, at 670–74; Cantalupo, supra note 210.
For the criminal lens, see, for example, Javorka & Campbell, supra note 216, at 152, 158 (analyzing results of a qualitative study that “indicated that criminal justice concepts and goals are indeed being conflated with and influencing university Title IX proceedings”). For the procedural due process lens, see Carson & Nesbitt, supra note 21, at 333–34, stating “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.” (footnote omitted).
See, e.g., Javorka & Campbell, supra note 216, at 158; see also Complaint for Declaratory and Injunctive Relief at 81–82, Victim Rts. L. Ctr. v. Rosenfelt, 988 F.3d 556 (1st Cir. 2021) (No. 20-1748).
Harris & Linder, supra note 14, at xii.
Devon W. Carbado & Kimberlé W. Crenshaw, An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection, 129 Yale L.J.F. 108, 128 (2019) (describing a “single-axis” framework as an approach to antidiscrimination law that requires choosing race or gender, but not both, and recognizing that “[a]dvocates and stakeholders within discursive communities . . . routinely reproduce precisely the ‘single‑axis’ frameworks that privilege and foreground group members whose narratives of injustice fit the either/or parameters of equality claims”); see Harris, supra note 114, at 42 (“[T]he unilateral focus on white women obscures other student populations’ experiences with sexual violence.”).
Harris, supra note 114, at 42 (citing Kelle Barrick et al., Intimate Partner Violence Victimization Among Undergraduate Women at Historically Black Colleges and Universities (HBCUs), 19 Violence Against Women 1014 (2013)); Wagatwe Wanjuki, College Rape: Does the Media Focus Only on White Survivors?, Mic (Apr. 29, 2013), https://www.mic.com/articles/38363/college-rape-does-the-media-focus-only-on-white-survivors [https://perma.cc/L5QN-TZFV].
Chris Linder & Jess S. Myers, Intersectionality, Power, Privilege, and Campus-Based Sexual Violence Activism, in Intersections of Identity and Sexual Violence on Campus, supra note 14, at 175, 176.
Id.
See Scarlett & Weyrick, supra note 71, at 410. Harris, supra note 112, at 601 (“[T]he experience of rape for black women includes not only a vulnerability to rape and a lack of legal protection radically different from that experienced by white women, but also a unique ambivalence. Black women have simultaneously acknowledged their own victimization and the victimization of black men by a system that has consistently ignored violence against women while perpetrating it against men.”).
Amelia Roskin-Frazee, Protections for Marginalised Women in University Sexual Violence Policies, 9 Int’l J. for Crime, Just. & Soc. Democracy, Mar. 2020, at 13, 18 (examining the inverse linkage between coordinated school-law enforcement response and effective intersectional approaches); Cantalupo, supra note 189, at 231 (noting victims of color may be suspicious of criminal justice actors like police); Gruber, supra note 169, at 604 (“To the extent that feminism is as much for women of color as for white women and it condemns racial hierarchy, it should regard as intolerable legal changes that elevate the already insufferable level of racial injustice in the criminal system and society.”).
Linder & Myers, supra note 257, at 176.
Id.; Scarlett & Weyrick, supra note 71, at 410.
Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020); see also Exec. Order No. 13,988, 86 Fed. Reg. 7023, 7023 (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.” (citation omitted)).
“Research suggests that male survivor disclosure rates are lower than female disclosure rates, because male survivors of sexual violence feel isolated because of the common misconception that men are not victims.” Palacios & Aguilar, supra note 127, at 200–01. Educational institutions’ materials about sexual assault are often heteronormative and genderist, sending the message to students that only certain types of sexual assault are seen within the institution. Id. at 200; see also Cantalupo, supra note 13, at 60, 66 n.390.
Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 149 (“This apparent contradiction is but another manifestation of the conceptual limitations of the single-issue analyses that intersectionality challenges. The point is that Black women can experience discrimination in any number of ways and that the contradiction arises from our assumptions that their claims of exclusion must be unidirectional.”).
Jane Coaston, The Intersectionality Wars, Vox, https://www.vox.com/the-highlight/2019/5/20/18542843/intersectionality-conservatism-law-race [https://perma.cc/BB8G-KJUQ] (May 28, 2019, 9:09 AM).
Crenshaw, supra note 265, at 140.
Cantalupo, supra note 13, at 79; Harris & Linder, supra note 14, at xiv.
See Brake, supra note 13, at 137 (“[I]n the debate over the [preponderance of the evidence] standard, race has entered into the discussion only in terms of the effect on men of color, and African-American men in particular, who are accused of sexual misconduct. . . . Women of color are often invisible in the analysis even when they are complainants.”). See generally Intersections of Identity and Sexual Violence on Campus, supra note 14.
See Cantalupo, supra note 13, at 72–73 (recognizing the importance of researching female students of color’s experiences of sexual harassment, including the race of the alleged harassers); Harris, supra note 114, at 42; Trachtenberg, supra note 161, at 158 (arguing DOE should require schools to “collect demographic data (including race/ethnicity, sex, disability status, and income) for all students receiving suspension and expulsion[] . . . disaggregated by offense”). See generally Intersections of Identity and Sexual Violence on Campus, supra note 14.
Cantalupo, supra note 13, at 42–44; Scarlett & Weyrick, supra note 71, at 412.
Cantalupo, supra note 13, at 20.
Robert W.S. Coulter & Susan R. Rankin, College Sexual Assault and Campus Climate for Sexual- and Gender-Minority Undergraduate Students, 35 J. Interpersonal Violence 1351, 1352 (2020) (“With sexual- and gender-minority students (e.g., lesbian, gay, bisexual, and transgender [LGBT] people) comprising a substantial size of the undergraduate population . . . sexual assault among these populations is a substantial public health concern worthy of further research.”).
It is increasingly common to have diversity, equity, and inclusion (DEI) offices, officers, or both, deans, and directors at educational institutions. See Caitlyn Clauson & John McKnight, Welcome to Campus: Planning for Diversity, Inclusion, and Equity, Plan. for Higher Educ. J., Oct.–Dec. 2018, at 39, 40–41 (discussing growth in chief diversity officer positions in higher education and institutionalization of equity and diversity work).
Jason C. Garvey et. al, Queer-Spectrum Student Sexual Violence, in Intersections of Identity and Sexual Violence on Campus, supra note 14, at 155, 164–65.
Power has many manifestations, including authoritative and social power. Social power exists in individual and larger group contexts. As authors Paula Popovich and Michael Warren note, “‘Power’ can be defined in a general way as ‘the ability to act or produce an effect,’ as well as more specifically, the ‘possession of control, authority or influence over others.’ In psychology, the discussion of social power usually involves a reference to ‘influence,’ although the words are not completely synonymous.” Paula M. Popovich & Michael A. Warren, The Role of Power in Sexual Harassment as a Counterproductive Behavior in Organizations, 20 Hum. Res. Mgmt. Rev. 45, 47, 49 (2010) (citation omitted) (quoting Power, Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/power [https://perma.cc/68CE-5NCV] (March 16, 2009)); see also Elizabeth Bernstein, Power’s Role in Sexual Harassment, Wall St. J., https://www.wsj.com/articles/powers-role-in-sexual-harassment-1517844769 [https://perma.cc/2F4G-HBNQ] (Feb. 5, 2018, 10:33 AM).
Inequity is produced at the structural level and is affected by narrative. See, e.g., Nicola Phillips, Power and Inequality in the Global Political Economy, 93 Int’l Affs. 429, 440 (2017); Brett Davidson, The Role of Narrative Change in Influencing Policy, On Think Tanks (July 20, 2016), https://onthinktanks.org/articles/the-role-of-narrative-change-in-influencing-policy/ [https://perma.cc/K63R-SXZ3].
Palacios & Aguilar, supra note 127, at 200–01.
Harris & Linder, supra note 124, at 1, 5 (“Researchers and educators have placed a heavy focus on addressing alcohol consumption rather than power, privilege, and domination.”).
Athletes often hold powerful social capital on campus through the important roles that sports play, including financially, for schools. See Brake, supra note 13, at 117–19 (“Some of the most egregious stories of institutional failure and the re-victimization of complainants involve reports of sexual assault by male athletes, particularly elite male athletes who are highly valued members of big-time university athletic programs.”). When analyzing the power dynamics sports membership plays on campus, it is important to acknowledge the racialization of the male athlete. See id. at 145–46 (charting the role that race plays in public perceptions of male athletes and reporting on sexual assaults at schools).
Harris & Linder, supra note 124, at 10 (“For instance, the proposal to ban women from fraternity houses at the University of Missouri negates the root causes of sexual violence. This policy places the responsibility to avoid rape on women students; if they stay out of specific spaces they will be safe from sexual violence. Yet by placing the onus on women and not the privileged and dominating environments of fraternities, this policy overlooks the history and embeddedness of patriarchy, power, and male privilege that contribute to sexual violence in this particular setting.”).
See id.
See id. at 4–5 (citing studies on the connection between alcohol and sexual assault).
Jessica C. Harris, Women of Color Undergraduate Students’ Experiences with Campus Sexual Assault: An Intersectional Analysis, 44 Rev. Higher Educ. 1, 3–4 (2020) (“[T]his study exhibits how intersecting systems of domination embedded throughout institutions, and not only individual behaviors, such as students’ alcohol consumption, contribute to the perpetuation of violence against Women of Color on campus.”).
Harris & Linder, supra note 14, at xii; see also Margaret Drew, It’s Not Complicated: Containing Criminal Law’s Influence on the Title IX Process, 6 Tenn. J. Race, Gender, & Soc. Just. 191, 212–13 (2017) (describing how when an observer lacks a trauma-informed lens, a survivor’s response that does not match the “mythical norm” may seem to deplete his or her credibility, which can complicate the investigation and prosecution—an effect that is “compounded” if a “survivor is gay, transgender, a person of color, or belongs to another marginalized group”).
See Brake, supra note 13, at 139 (recognizing “complainants with the least social privilege” are negatively impacted the most because they are less likely to report, less trusting of the criminal justice system, and “do not match up with cultural stereotypes about ‘real’ (e.g., credible) victims of sexual assault”); Harris & Linder, supra note 14, at xiv (“As a society and as educators, we fail to understand the complexities of power, privilege, and entitlement related to sexual violence. Relying on stereotypes about race, gender, and sexual orientation allows the dominant perpetrator—an economically privileged, straight, cisgender white man—to continue to commit sexual violence because we do not see them as perpetrators.”); Roskin-Frazee, supra note 260, at 16 (“[C]urrent school practices appear to disenfranchise survivors with marginalised identities when schools lack cultural competency training, accessible health care, and reporting mechanisms that are separate from law enforcement.”).
Harris & Linder, supra note 124, at 10 (“[C]atchall [ahistorical] policies not only negate students’ intersectional identities and multiple systems of domination but also obscure how a history [of] colinization [sic], terrorization, and domination continue to influence sexual violence in higher education.”).
Scarlett & Weyrick, supra note 71, at 438–49 (describing how transformative justice can be an effective alternative to the classic Title IX models).
See Crenshaw, supra note 265, at 140; Suero, supra note 143, at 140–41 (examining through the lens of Latina & Latino Critical Legal Theory how the courts treat Latina’s claims of sexual harassment in the workplace one identity at a time).
See, e.g., Harvard College, Student Handbook: Academic Year 2021–2022 50 (2021), https://handbook.college.harvard.edu/files/collegehandbook/files/harvardcollege_studenthandbook_2021_2022.pdf [https://perma.cc/Y6RT-YRXM].
See Onwuachi-Willig, supra note 110, at 116 (“To be exact, [harassment of Black actress Leslie Jones] constituted intersectional race and sex harassment because it relied on both racial and gendered stereotypes of black women and involved racialized sexism against a black woman.”); Cho, supra note 141, at 209 (“[N]ew frameworks that integrate race and gender should be developed to account for the multi-dimensional character of harassment that occurs and is challenged across races, social classes, and borders. The law’s current dichotomous categorization of racial discrimination and sexual harassment (to name only two) as separate spheres of injury is inadequate to respond to racialized sexual harassment.” (footnote omitted)).
Suero, supra note 143, at 138–39; see also Carbado & Crenshaw, supra note 255, at 121–22.
See Off. for C.R., 2001 Guidance, supra note 41, at vi (referring to sexual harassment as “conduct of a sexual nature is sufficiently severe, persistent, or pervasive” (emphasis added) (quoting 62 Fed. Reg. 12,034, 12,041 (Mar. 13, 1997))).
This standard comes from Davis v. Monroe County Board of Education, where the Supreme Court found an implied private right of action in Title IX, and, therefore, concomitantly heightened the standard of proof to find a violation. See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 639–40, 651–52 (1999) (“This Court has indeed recognized an implied private right of action under Title IX . . . .”).
The 2020 Rule’s definition removes from protection a range of situations that would be covered under both school conduct codes for sexual harassment and Title IX jurisprudence. In the sexual assault context, the new definition arguably does not even cover one instance of sexual assault, as one instance cannot satisfy the “pervasive” standard. See, e.g., Francoeur v. D.L., No. 15cv953, 2017 WL 4247385, at *6–7 (D. Conn. Sept. 25, 2017) (“The instant case involves conduct which, while undoubtedly embarrassing, degrading, and offensive to A.F., was a one-time occurrence and thus not pervasive.”); GP ex rel. JP v. Lee Cnty. Sch. Bd., 737 F. App’x 910, 915 (11th Cir. 2018) (“The battery of November 22, 2013 was certainly severe, but it was a single incident and thus was unlikely to have the systemic effect of depriving [the plaintiff] of an educational benefit.”).
Baker et al., supra note 49, at 4 (“Other educational civil rights statutes like Title VI of the Civil Rights Act of 1964, which prohibits race discrimination by educational institutions and is also enforced by OCR, use a preponderance of the evidence standard.”); id. at 6 (“Tolerating a different standard from the preponderance standard in cases involving sexual violence or other forms of gender-based harassment would allow schools to provide less legal protection to student victims of sexual harassment than the vast majority of comparable populations involved in civil, civil rights and student disciplinary proceedings, all of which overwhelmingly use the preponderance standard.”).
34 C.F.R. § 106.45(b)(1)(vii).
Complaint for Declaratory and Injunctive Relief at 1–2, Know Your IX v. DeVos, (D. Md. Oct. 20, 2020) (No. RBD-20-01224) (“Until now, [the Department of Education] has imposed the same responsibilities on recipients to respond to harassment based on sex that it imposes on them to respond to harassment based on race, national origin, and disability.”).
Cantalupo, supra note 13, at 6 (footnote omitted).
Carbado & Crenshaw, supra note 255, at 114, 120–21 (discussing the lack of intersectionality in a gender discrimination case and an affirmative-action case); see also Degraffenreid v. Gen. Motors Assembly Div., 413 F. Supp. 142, 143 (E.D. Mo. 1976) (applying a single-axis race or gender approach in a discrimination suit brought by Black women to establish that they could bring separate causes of action for racism or sexism, “but not a combination of both”).
While schools have not traditionally developed intersectional systems, they are not prohibited from doing so. The 2010 Dear Colleague Letter on Bullying is one example of how an intersectional lens can be used. See Harassment and Bullying Letter, supra note 94, at 3 (allowing for an inquiry that covers multiple axes of discrimination when discussing how schools should address bullying, stating that “if the abusive behavior is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR”).
See, e.g., Donna Coker, Restorative Responses to Campus Sexual Harm: Promising Practices and Challenges, 1 Int’l J. Restorative Just. 385, 386, 388–89 (2018) (recommending restorative justice as a tool for a public-health approach to changing the campus climate and responding to sexual assault that is uniquely available at the university-level).
Cantalupo, supra note 13, at 9 (recommending steps to “put women students of color’s experiences at the center of our legal responses to sexual harassment”).
See Green & Stolberg, supra note 80.
See, e.g., 2021 Q&A, supra note 86, at 31 (“The 2020 amendments explain that the grievance process required for formal sexual harassment complaints does not apply to complaints alleging discrimination based on pregnancy, different treatment based on sex, or other forms of sex discrimination.” (citing 34 C.F.R. §§ 106.8(c), 106.45 (referring to the same grievance process as for “formal complaints of sexual harassment”))).
See, e.g., 2014 Q&A, supra note 73, at 24 (“The specific steps in a school’s Title IX investigation will vary depending on the nature of the allegation, the age of the student or students involved, the size and administrative structure of the school, state or local legal requirements (including mandatory reporting requirements for schools working with minors), and what it has learned from past experiences.”).
See Mann, supra note 92, at 670–75 (recommending a way schools can craft such a policy).
See supra Section V.B.1 (explaining why I focus on the identity of race in this Article). There are many marginalized identities that an intersectional approach to Title IX must account for in order to fully address sex discrimination in higher education. For an extensive discussion of identities and Title IX, see generally Chris Linder, Reexamining Our Roots, in Intersections of Identity and Sexual Violence on Campus, supra note 14, at 60, 60–78. See also Scarlett & Weyrick, supra note 71, at 428.
Harris & Linder, supra note 14, at xiii.