New Title IX Rules Directly Hit Harvard and Yale

Thursday, April 14, 2011

It's hard to exaggerate the importance of the new advisory that the White House put out last week about the application of Title IX to tougher college standards on sex assault. A sports-equity law can now be used to combat sexual violence.

Wendy Murphy(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.

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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.

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As the Associate Director of a campus counseling center, I am concerned about protecting the confidentiality rights of students who disclose in their counseling session of a sexual assault incident but do not want it to be reported. Does this advisory mean college counselors will now be mandated reporters of sexual assault/harassment, much like suspected child abuse & neglect?

I believe that Stanford has these same stringent requirements too. These schools care more about protecting their rep for "not having rapists" than they do about the women and future women who will be harmed by these rapists.