Case Study Title Ix Law

Often, the conversation about how colleges enforce Title IX with regard to sexual assault and harassment allegations quickly devolves into standard political muck-throwing — squabbles about whether liberals are too easily triggered, or why conservatives care so little about sexual assault victims, and so on. That’s unfortunate, because by now there is an abundance of evidence that the manner in which many schools and universities are enforcing the law is deeply broken.

The scholar Laura Kipnis’s 2015 essay, “My Title IX Inquisition,” should have made that clear — Kipnis, the controversy over her subsequent book notwithstanding, dealt with an incredibly opaque, Kafkaesque disciplinary process after a student claimed that an essay she had written had created a hostile environment for her. The problem isn’t exactly the law itself, but rather the guidance the Barack Obama administration gave to schools about how to enforce it. To make a long and complicated story short, schools were instructed, under penalty of potentially losing federal funds, to take a very aggressive approach to investigating alleged assaults and harassment, and were told to adopt a significantly lower evidentiary threshold than what is used in criminal and civil proceedings.

Kipnis’s case was far from the only example of the government’s enforcement guidelines producing deeply weird and troubling unintended consequences. On many campuses, Title IX bureaucracies have quickly grown bloated, and as a rule bloated bureaucracies work to to justify their existence, so it’s perhaps unsurprising that many universities spend huge amounts of time and energy “investigating” things that a reasonable person, given the facts, would conclude did not warrant an in-depth investigation.

The organization the Foundation for Individual Rights in Education does a good job tracking these cases, and many of them would be hilarious if they didn’t involve real damage to real people’s academic or professional careers. In one instance, a student was hit with five conduct charges for jokingly yelling “I hit it first” from a balcony at a couple she didn’t know; in another, a law professor was punished, following a 16-month investigation, because an exam question he wrote involving a bikini wax was deemed to have created an unsafe environment after a student “allegedly believed the question’s premise somehow required her to reveal to the class whether she’d had a Brazilian wax,” according to FIRE.

The latest case to garner significant attention, though, is in some ways the weirdest of them all. It involves USC football kicker Matt Boermeester, who has been the subject of a Title IX investigation as a result of allegations he assaulted his girlfriend, USC tennis player Zoe Katz.
A Los Angeles Timesreport by Zach Helfand from last week, drawing heavily on a statement Katz’s attorney sent the paper, explains what happened: It started in February, when a neighbor saw Boermeester shove Katz during what Katz has said was playful roughhousing between the two athletes. “The neighbor told his roommate, who told a coach in USC’s athletic department that Boermeester was abusing Katz,” writes Helfand. “The coach then reported the incident to the Title IX office.”

At that point, the bureaucracy kicked in and things got weird, according to Katz:

Katz said she was summoned to a mandatory meeting with Title IX officials, where she told investigators that the two were playing around. Katz was subsequently told that she “must be afraid of Matt,” she said. She told officials she was not. Boermeester has not been arrested or charged with a crime.

“When I told the truth about Matt, in repeated interrogations, I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled,” Katz said. “I understand that domestic violence is a terrible problem, but in no way does that apply to Matt and me.”

Katz said that she has “never been abused, assaulted or otherwise mistreated by Matt.”

USC and its athletic department decided to ignore Katz’s assurance that she was not, in fact, a victim, and Boermeester “was suspended from USC, then barred from campus and from meeting with USC’s athletic trainers or members of the football team,” or with Katz herself. “In the statement,” notes Helfand, “Katz said she is coming forward now to clear Boermeester’s name and lobby for change in the Title IX office’s investigative procedures.”

Now, there are of course situations in which abuse victims fail to realize they are being abused, are coerced into silence, and so forth. But at a certain point, if an adult woman states repeatedly and consistently that there has been a misunderstanding and she does not feel endangered by her boyfriend, the common feminist refrain Listen to women should apply as it would in any other situation involving an alleged assault. Katz wasn’t listened to, and as a result, she said in the statement, she feels “misled, harassed, threatened and discriminated against” by her own school’s Title IX investigators.

Setting aside the very real harm done to Katz and Boermeester here, it shouldn’t come as a shock that political conservatives feast on these cases to score points in the broader culture war. “The war on men on college campuses rages on …” intoned the subhed of the Daily Wire’s coverage. But these cases aren’t really about ideology, per se. Rather, they’re the predictable result of the past administration’s guidance, which put schools in a position where they quite reasonably inferred that if they didn’t pursue even questionable or flimsy cases aggressively, they risked running afoul of the government. Big, risk-averse, corporate-style bureaucracies created to handle what is perceived as a crisis are not going to make sage decisions about this sort of thing, and the confusing federal-enforcement climate has only exacerbated the problem. Things are so tangled that at one point in 2016, the Justice Department told universities that in some cases they could be in Title IX violation if they didn’t investigate certain types of constitutionally protected speech (courts have ruled that public but not private universities need to adhere to the First Amendment in their dealings with students). If universities are simultaneously being told by the government they need to respect students’ free speech, but also that they need to investigate protected speech in other instances, something is seriously wrong.

The Obama guidelines came from a place of genuine concern: It is important that anyone making an accusation of sexual assault or harassment be taken seriously and have their rights protected, and there have been an endless number of nightmare situations, both on-campus and off-, in which victims haven’t gotten the justice they deserved. But what’s going on with Title IX at the moment clearly isn’t working, and it shouldn’t take an example as crazy as USC forcing one of its students to be a victim to make people realize that.

Sources

Los Angeles Times

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Landmark Title IX cases in history
1972Congress enacts Title IX of The Educational Amendments of 1972
20 U.S.C. ß 1681 et seq.
Signed into law by President Richard Nixon, June 23, 1972. Prohibits sex discrimination in any education program or activity, within an institution receiving any type of Federal financial assistance.
1974“Tower Amendment” proposed and rejected.May 20, 1974, Senator Tower introduced an amendment to exempt revenue-producing sports from being tabulated when determining Title IX compliance. The amendment was rejected.
1974“Javits Amendment” enacted & included in the Education AmendmentsJuly 1974, Senator Javits proposed, in lieu of proposed Tower Amendment, a proposal stating HEW must issue Title IX regulation including “with respect to intercollegiate athletic activities, reasonable provisions considering the nature of particular sports.” (e.g., event-management needs, etc.)
1975 & 1977Two bills attempt to alter Title IX coverage in athletics; both die in committees before reaching House or Senate floors.• June 1975, Rep. O’Hara introduced House Bill (H.R. 8394), proposing to use sports revenues first to offset cost of that sport, then to support other sports.
• July 15, 1977, Senators Tower, Bartlett, & Hruska introduced Senate Bill (S. 2106), proposing to exclude revenue-producing sports from Title IX coverage.
1975HEW issues final Title IX regulation
34 C.F.R. Part 106
Signed into law by President Gerald Ford, effective July 21, 1975. Includes provisions prohibiting sex discrimination in athletics and establishes a three-year window for educational institutions to comply.
1975Congress reviews and approves Title IX regulations and rejects resolutions disapproving them.• June 4,1975:The present Title IX regulation was transmitted to Congress.
• June 5, 1975, Senator Helms (S. Con. Res. 46), and June 17, 1975, Rep. Martin (H. Con. Res. 310): disapproving entire Title IX legislation
• June 17, 1975, Rep. Martin (H. Con. Res. 311), disapproving Title IX legislation only as it has to do with intercollegiate athletics
• July 16, 1975, Senators Laxalt, Curtis & Fannin (S. Con. Res. 52), disapproving application of Title IX to intercollegiate athletics
1975 & 1977Senate refuses to act on bills to curtail Title IX enforcement.• July 21, 1975, Senator Helms introduced S. 2146 in an attempt to prohibit the application of Title IX regulations to athletics where participation in those athletic activities are not a required part of the educational institution’s curriculum.
• January 31, 1977, Senator Helms re-introduced S. 2146 as S. 535..
1978HEW issues proposed policy “Title IX and Intercollegiate Athletics” for notice and commentPresumption of compliance based on substantially equal average per capita expenditures for men and women athletes and future expansion of opportunity and participation for women.
1979HEW issues final policy interpretation on “Title IX and Intercollegiate Athletics”
44 Fed. Reg. 71413 et seq.
December 11, 1979: Rather than relying exclusively on presumption of compliance standard, final policy focuses on institution’s obligation to provide equal opportunity and details the factors to be considered in assessing actual compliance. (Currently referred to as the 3-Prong-Test)
1980Department of Education is established.DOE was given oversight of Title IX through the Office for Civil Rights (OCR).
1984Grove City vs. Bell DecisionRemoved the applicability of Title IX in athletics programs by stating that only those programs or activities which receive direct Federal financial assistance be held under the umbrella of Title IX.
1988Civil Rights Restoration ActBecomes law on 3/22/88 after overriding a Presidential veto by President Ronald Reagan. Overrides Grove City vs. Bell, and mandates that all educational institutions which receive any type of Federal financial assistance, whether it be direct or indirect, be bound by Title IX legislation.
1990Title IX Investigation ManualApril 2, 1990: OCR, of the U.S. Dept. of Education, publishes manual. Authored by Valerie M. Bonnette and Lamar Daniel.
1992Franklin vs. Gwinnett County Public SchoolsFebruary 2, 1992: Supreme Court rules unanimously that plaintiff’s filing Title IX lawsuits are entitled to receive punitive damages when intentional action to avoid Title IX compliance is established.
1992NCAA Gender Equity StudyShortly after Franklin decision, NCAA completes and publishes a landmark Gender-Equity study of its member institutions.
1994Equity in Athletics Disclosure Act (EADA)
Section 360B of Publ.L. 103-382
34 CFR Part 668.41-668-48
Fed. Reg. 11/29/95 p. 61424
• September 1993: Sponsored by Senator Mosley-Braun (S. 1468) and Rep. Collins (H.R. 921)
• States that any coeducational institution of higher education that participates in any Federal student financial aid program and has an intercollegiate athletics program must disclose certain information concerning that intercollegiate athletics program.
• Annual reports required; first disclosure report is to be available no later than October 1, 1996.
1996Policy ClarificationJanuary 16, 1996: OCR issues clarifications of three-part “Effective Accommodation Test”
1996First EADA report dueOctober 1, 1996: All institutions must have available to all who inquire, specific information on their intercollegiate athletics department as required by the Equity in Athletics Disclosure Act

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