(WOMENSENEWS)–It’s Sexual Assault Awareness Month and for the first time since President Barack Obama took office, I’m celebrating his administration for finally doing something about violence against women.
After a whole lot of nothing for three years, Vice President Joe Biden last week announced a new "advisory" under Title IX, the federal law that prohibits gender discrimination, including sexual assault, in education. This makes Title IX far more than a sports-equity law.
The advisory is meant to compel university officials to do a better job responding to sex crimes on campus; an important concern given that 1-in-5 students is victimized while in college.
Amid reports that Yale is under investigation by the Office for Civil Rights at the Department of Education for allegedly violating Title IX, Biden explained that schools are mandated by federal law to redress sexual violence "promptly and effectively."
I take special interest in all this because the advisory directly addresses concerns I’ve expressed about other schools, including Harvard Law School, Hofstra and the University of Virginia, each of which is also under investigation by the Office for Civil Rights.
Harvard Law School and the University of Virginia are in trouble for requiring sexual-assault victims to prove their allegations by "clear and convincing evidence" (about 80 percent proof), rather than the less rigorous "preponderance of evidence" standard (about 51 percent proof). The new advisory makes it crystal clear that both schools have been violating women’s civil rights by applying the higher standard.
Harvard Law School is also under investigation for having a policy of delaying sexual assault hearings on campus until outside law enforcement officials complete their investigation.
‘Clock-Running’ Violations
This tactic–known as "running out the clock"–is used by many schools to avoid oversight by the Office for Civil Rights. When a school puts off resolving a case until the students involved are on the verge of graduation, violations of Title IX cannot be remedied in any meaningful way.
Clock-running is one of the most serious violations of Title IX because it profoundly interferes with a victim’s education by forcing her to endure an unresolved controversy and the presence of her attacker on campus throughout her college (or graduate school) education. In some cases, including at Harvard, school employees purporting to have expertise in this area have literally "advised" victims that it’s a good idea to wait until the district attorney completes his investigation. Such caring "advisors" know full well that there will be no criminal prosecution and that they are violating Title IX by helping the administration delay on-campus justice for the victim. The new advisory makes it abundantly clear that this disdainful practice will not be tolerated.
Harvard Law School will no doubt change its policies before the Office for Civil Rights completes its investigation, after which the civil rights agency will issue a ruling praising Harvard for complying with Title IX. This is how the Office for Civil Rights works.
It’s not that the agency prefers carrots to sticks, it’s that the investigation is the stick that whacks schools into compliance. Schools hate to be investigated and that’s why they do all sorts of things to discourage victims from even knowing about their rights under Title IX. But that’s going to stop now, too, because while Title IX has long been considered a sports-equity rule, the new advisory mandates that students be informed in writing that the law also applies to sexual assault.
Best News since 1972
That the Office for Civil Rights had the courage to open an investigation against the alma mater of the president of the United States is, itself, impressive. One needn’t be a cynic to appreciate how easy it is for power to trump justice.
There’s something to be said for an administration that has no problem holding two of the world’s most powerful institutions accountable for failing to respect women’s civil rights. And make no mistake, when schools of the magnitude of Harvard and Yale are put in their place everyone else lines up behind them. It’s the best news for women in education since Title IX was enacted in 1972.
Here are a few additional points about Title IX, made clear in the new advisory:
- A single act of sexual assault is enough to constitute actionable "sexual harassment" under Title IX.
- Schools must provide redress for sexual assault and sexual harassment even if the behavior occurs off-campus or in cyber-space, so long as the effects are felt on campus such that they interfere with a student’s equal access to education.
- All rights accorded accused students must also be given to victims. A school’s disciplinary system is not akin to a criminal prosecution. The victim and the accused stand on equal footing and are entitled to equal rights at every stage of the process.
- Schools must provide clear timeframes so that students understand when each stage of the investigation and final resolution of a complaint will be completed.
- Schools must ensure that the well-being of victims is protected before, during and after a disciplinary decision is rendered, and to prevent a retaliatory hostile environment from developing.
It’s been a long time coming but Title IX has finally obtained its rightful seat at the anti-discrimination table. And our president, who I’d said didn’t have it in him to do the right thing on this issue, proved me wrong.
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Wendy Murphy is an adjunct professor at New England Law/Boston where she teaches a seminar on sexual violence. She’s a former sex crimes prosecutor and author of "And Justice For Some." An impact litigator who specializes in violence against women, Murphy consults and lectures widely on sex crimes, violence against women and children and criminal justice policy.
