By Dr. Ann Olivarius, Guest Writer
Content warning: sexual assault
As Americans celebrate the 50th anniversary of Title IX, I am reminded of why I fought alongside other brave Yale undergraduates in 1977 to make sure Title IX’s definition of gender discrimination was extended to cover predatory faculty targeting female students.
Title IX guarantees educational equality regardless of sex. We brought a lawsuit seeking to establish that achieving this equality required universities to rein in professors who pressure young women for sexual favors in exchange for grades and academic advancement. That principle became established in federal law. Since then, women have made a lot of progress in education.
But a recent case at Bryn Mawr shows the problem of harassment remains real and pungent. A suit is pending against the College and David Barreto, a Spanish teacher who allegedly sexually assaulted a student in 2019. According to the Haverford Clerk, multiple students had reported Barreto to the college leadership, but he was allowed to continue teaching. Unfortunately, this happens far too often with Title IX cases. The law has other weaknesses. After decades as an attorney specializing in cases of discrimination, sexual harassment, and online abuse, I know that Title IX needs an update.
How it all started: Alexander v Yale
The Civil Rights Act of 1964 barred discrimination based on “race, color, religion, or national origin.” It was a much-needed step to cleanse the nation of its painful legacy of racism. But it didn’t include sex. That’s why Title IX, passed in 1972, was so important. It bars sex discrimination in educational programs that receive federal funds (more than $70 billion this coming year plus another $235 billion in student loans, grants, and work-study) which includes almost every university, college, and public K-12 school in the country.
Title IX requires women to receive the same opportunities as men, from athletics and clubs to coursework and faculty office hours. But I could see that clearly wasn’t true at Yale in 1974, so I helped found the Undergraduate Women’s Caucus. After hearing about faculty groping, propositioning, and even raping women students, we pressed the university to implement a grievance procedure. The administration refused, stalled, and even threatened to have me arrested on the morning of my graduation.
I sued, along with several other female students and one professor, contending that the permissive climate toward sexual harassment denied women an equal education and thus violated Title IX. The case is known as Alexander v Yale.
Our loss, your victory
One of my sister plaintiffs was raped by her music instructor; another rebuffed her professor’s advances and was given a lower final grade in retaliation. Most of our suit was dismissed because we had already graduated, which the judge said invalidated our complaints (which no longer holds).
But the judge also affirmed our central argument, ruling that “academic advancement conditioned upon submission to sexual demands constitutes sex discrimination.” We lost the case, but we won for students who came after us on a campus that is supposed to be free from predatory professors.
We did not ask for monetary damages in our lawsuit but only that Yale establish a central mechanism for hearing reports of sexual harassment. Here, again, we won. The university set up procedures, and so did other schools around the country and world. Bryn Mawr, too, established procedures for addressing sexual assault, including its current online reporting forms and the Title IX Hearing Panel, all intended to ensure that students today do not suffer the humiliations and discrimination rampant at Yale in the 1970s.
Reset
Unfortunately, sexual harassment and assault remain widespread, and by some measures are getting worse. Title IX cases are multiplying – more than 1500 are pending. After 50 years, Title IX needs a system upgrade. The Biden administration – shortly to release its guidelines – has already taken useful steps to protect trans students. Here’s what else it should do.
Duty of Care
The basic problem with Title IX that I constantly encounter as a litigator is that schools are not held accountable for mishandling investigations. There are no penalties for bungling evidence, lost files, or failing to respond promptly and seriously to complaints. Title IX is called into play only when schools are “deliberately indifferent” to student complaints. This forbidding standard disadvantages survivors. One might also say that it incentivizes schools to make “mistakes.” A more appropriate standard would be the lower bar of “negligence,” which is commonly used in comparable areas of the law, such as when the actions (or inactions) of an employer harm an employee.
Similarly, schools today are liable only for misconduct that plaintiffs can prove was definitively known to administrators. The guidelines should include misconduct administrators should have reasonably known about.
Another problem is that Trump’s Secretary of Education, Betsy DeVos, weakened regulations, making it tougher for survivors to bring cases. Schools are now not accountable for assaults that happen in study abroad programs or any activity or place over which the school does not exercise “substantial control,” including some frat houses and off-campus residences. Yet fewer than one-quarter of undergraduates now live in dorms. The rules should cover them, too, and any event or location connected to a university-related program.
Independent Title IX Offices
When a student files a Title IX complaint, the investigation is conducted by school employees. Understandably, they are torn between concern for students and their own job security. They are often pressured to soften their fact-finding punches, an issue in the recent lawsuit against Harvard. To debug this system, the government should fund objective, third-party Title IX offices.
Heed Survivors
The Trump administration pushed a requirement that victims and their evidence undergo live cross-examination. Thankfully, the courts pushed back. We need to be sure that due process does not intimidate victims from coming forward, increase their trauma, and imply that sexual assault accusations are largely lies fabricated by women.
Another change during the DeVos era that needs to be stricken is permitting schools to require that Title IX cases be settled by “clear and convincing” evidence – a high burden, one notch down from the bar used in criminal court. A more appropriate standard is the “preponderance of the evidence,” which not only applies to civil cases but is also typically used for campus discipline.
Proactive policies
Like many Bryn Mawr students, I also want to see a shift in the attitude of schools. They generally ask, “what is the minimum I must do to avoid getting sued?” They should instead be required to answer the question, “What steps can we take to make students safer?” The Obama administration urged “proactive measures” to address sexual harassment. During his presidential campaign, Joe Biden similarly promised more training for students and faculty, requiring schools to liaise with rape crisis and domestic violence centers, Title IX advisory networks, and funding for student-led prevention programs. All this needs to happen now.
Let‘s also see the passage of the Gender Equity in Education Act of 2021, which would establish a new Office of Gender Equity that could spearhead these efforts. It could also issue periodic report cards on how each school is preventing sexual misconduct. Students are graded on their performance; why not schools?
Trauma-informed policies
Last, a new operating system for Title IX should fine-tune reporting procedures and require all students, staff, faculty, and administrators to undergo victim-centered, trauma-informed training, including how the consequences of sexual harassment impact the victim’s memory. I say this as a lawyer, and also as a survivor of rape and sexual harassment during my own college years.
The Next 50 Years
Today, 50 years on from the passage of Title IX, I look back with mixed feelings. The law empowered women to speak out and hold the guilty to account. But it pains me to see female students and faculty continue to suffer from a campus culture that often looks little different to what I experienced years ago. We thought back then that Title IX and Alexander v Yale would make women equal. We still have a long way to go.
Image credit: University of Miami
