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History and Background: Sexual Assault & Title IX

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance.”

Those succinct 37 words of Title IX of the 1972 Education Amendments have done more to advance women’s educational rights than any other legislation, experts say. The story of why they were needed, and how they’ve impacted education over their nearly 50-year history is a tale of battles over injustice, political pendulum swings, and a vast improvement in educational opportunities for women.

Before Title IX

Educational opportunities for women were extremely limited through most of American history. Girls and women in all levels of schools had fewer opportunities and faced many more barriers than did male students. 

Many schools and colleges barred females from entrance until the 1970s or made entrance requirements more difficult than for males, and gave females fewer extracurricular options.. Girls had a fraction of the athletic opportunities and support offered to men, often having to hold bake sales to pay for uniforms, equipment and travel while many men’s programs were fully funded by schools. Pre-Title IX, women were discouraged by or outright excluded from many elite private educational institutions and scholarship programs. Even in public co-ed schools and colleges, discriminatory rules or attitudes often prevented them from classes – ranging from “shop” to science, math, engineering and law – that were deemed more appropriate for males. 

Worse: sexual harassment was common, and, for the most part, legal. Allegations of assault were often simply shrugged off by authorities. 

And the civil rights movement of the 1960s accomplished little in this area. The landmark 1964 Civil Rights Act, while offering women some protection in the job market, only banned discrimination in education based on race, religion, color or national origin. Notably, not gender.

As a result, millions of women continued to be effectively shut out of education. As late as 1970, for example, only 8% of women aged 19 and older were college graduates, compared with 14% of men.

So women’s rights activists rallied to enact more legal protections, and in 1972,  Rep. Patsy Mink, of Hawaii, introduced what would become Title IX.

1970s: A Slow Start

The impact was slow to be felt. It wasn’t until 1975 that the first rules went into effect implementing Title IX. And schools were given until 1978 to come into compliance. 

By then, however, the impact of the amendment was evident. The number of girls participating in school sports rose from 300,000 in 1972 to about 2 million by 1978. (Though that was still less than half the number of boys involved in sports.) And more academic programs and elite schools were also made available to women. 

Inclusion of Sexual Harassment and Assault

The word “harassment” does not appear in the original Title IX text. But starting in 1978, court decisions and federal rules began to broaden the interpretation of Title IX to prohibit, for example, persistent unwanted sexual advances, or other kinds of harassment. This legal evolution has proven especially contentious, says R. Shep Melnick, the Thomas P. O’Neill Jr. Professor of American Politics at Boston College and author of “The Transformation of Title IX: Regulating Gender Equality in Education.”

The 1978 case of Alexander v. Yale was the watershed: Several female Yale students alleged that some professors had demanded sexual favors in return for good grades, and that this harassment constituted illegal discrimination under Title IX. The court agreed in principle. (But it  dismissed their cases, in part because most of the students had already graduated by the time of the decision.)  

Additional court cases involving students at all levels of schooling solidified Title IX’s protections against harassment, requiring schools to provide a safe environment for students and to address sexual harassment by both teachers and students, said Dr. Nan D. Stein, senior research scientist with Wellesley College Center for Research on Women, and who serves as an expert witness in Title IX cases. 

Among many important follow-up cases were:

Ping-Ponging Rules and Politics 

Despite the legal advances against harassment, victims of sexual assault and violence were still being routinely ignored by schools and colleges. And over the last 20 years or so, efforts to find a way to protect women from violence and punish those who victimize women, while maintaining due legal process and fair legal procedures, have been caught up in partisan politics.

“In 2011, because schools were still responding terribly to sexual violence – oftentimes ignoring it and punishing survivors for coming forward – students, survivors, law professors and other advocates started essentially demanding the Department of Education treat this issue seriously,” says Shiwali Patel, Director of Justice for Student Survivors and Senior Counsel for the National Women’s Law Center.

So in 2011, the Obama administration issued a “Dear Colleague” letter to college administrators around the country declaring a broad swath of actions – including student activity off a school’s grounds – as illegal harassment that the school must “promptly investigate” whenever  anyone files an allegation or complaint. The Obama administration followed up with additional guidance. Its 2014 Q&A explained schools’ responsibility to take immediate and effective steps to end sexual harassment and sexual violence through Title IX investigations. The investigations must be “prompt, thorough, and impartial,” and use the “preponderance of evidence” standard, meaning culpability could be assigned if the evidence showed it was ”more likely than not” that sexual harassment or violence occurred.

Perhaps encouraged by the possibility they would be investigated, the number of school-based sexual assault reports increased. But so did claims of unfairness by the accused, says Emily Yoffe, contributing writer to The Atlantic, who has covered Title IX issues for nearly a decade. More than 500 such lawsuits were filed between 2011-2019, she noted.  

One of the first was Doe v. Brandeis University in 2016, in which U.S. District Court Judge Dennis Saylor found Brandeis had “substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

The election of Donald Trump as president represented a repudiation of much of the Obama era, including the interpretation of Title IX. In 2017, Betsy DeVos, President Trump’s education secretary, revoked the Obama rules and created a new set of guidelines that became known as the DeVos rules. They went into effect Aug. 14, 2020. 

The new rules make Title IX investigations for sexual assault or sexual harassment a more judicial process. Some of the major changes included:

  • Requiring schools’ investigations to include live hearings with cross-examination 
     
  • Prohibiting schools from having the same person involved in both investigation and decision-making
     
  • Limiting schools’ responsibility to sexual assaults that happen in the U.S.
     
  • Allowing schools to choose which standard of proof is needed to find liability: either a “preponderance of the evidence” or the much stricter “clear and convincing” evidence standard
     
  • Allowing schools to offer mediation as an option for resolution

Some experts, such as Melnick, many attorneys and even a group of feminist law professors, had critiqued the Obama rules as shortchanging due process for the accused. 

But the DeVos rules drew ire from sexual assault survivors and advocates, saying the rules weighed too heavily in favor of the accused, Patel says. And her group, among others, have pursued lawsuits to chip away at some of its provisions.

The political pendulum swung again in fall 2020 with the election of Joe Biden. In an effort to thread the needle between providing protections for women and for anyone unjustly accused, the Biden administration vowed to rewrite the rules yet again, with a target date of May 2022.

In the meantime, the NWLC and other groups continue to pursue their court cases and their lobbying efforts. In July  2021, for example, they won a lawsuit against the Department of Education and forced schools to stop using  DeVos’ “exclusionary rule.” This means that complainants no longer have to participate in direct, live cross-examination under Title IX, says Patel.

The Big Impact

While aspects of Title IX continue to generate court battles, political ire, and public protests, there is little doubt the law has dramatically improved women’s educational opportunities. Female participation in high school sports increased by more than 1,000% since 1972. And women’s enrollment in college now surpasses that of men. In 2020, 38% of women had graduated college, vs. nearly 37% of men. 

In 1970, 91% of all law students were men. But in 2020, 54.1% of all students at American Bar Association-accredited law schools were women. For the 2020-21 academic year, 61,949 J.D. students were women, and 52,339 were men.

The same trajectory for women is found in medicine. While in 1970 women made up only 11% of medical school students in the U.S., in 2019, for the first time, the majority of medical students in the U.S. were women – at 50.5%, according to the Association of American Medical Colleges. 

“If you look at the before and after figures on college attendance, college graduation and above all graduate school attendance, it’s just a remarkable change,” Melnick said.

 

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