WHAT’S REALLY BEHIND THE BACKLASH TO WOMEN SEEKING TITLE IX PROTECTION TODAY?

By: Irwin Zalkin

To address the question of why we are seeing a backlash against women seeking Title IX protection on college campuses we must understand some fundamental truths.  First, to this day women are treated as an underclass in academia and in the workplace.  This, despite civil rights legislation that was passed in the 1970s to foster equal access and equal pay for women in the job market (Title VII), and equal access to academic opportunities in education (Title IX). The idea was to eliminate covert or overt hostility to women that served to impede the ability or the desire of women to compete equally with men for the fundamental right to an education and to a good job at a fair and equal wage.

As a society, we have failed women in both settings.  The failure in academia operates as a gateway to discrimination in the work place.  For this reason, it is vitally important that we understand the failings of institutions of higher learning in this country to promote gender equality, and to provide women with equal and safe access to educational opportunities.  Correcting this historical problem is not as difficult as one might believe.  The blueprint has been provided by the federal Department of Education for almost two decades.

Since the election of the current President and the appointment of Betsy Devos as Education Secretary and the head of the U.S. Department of Education, there have been challenges and recriminations by a crescendo of voices suggesting that those accused of sexual misconduct towards women students have been and are being discriminated against in favor of an attitude that presumes the accusations to be true and a bias towards coddling the accuser at the cost of due process.  The problem is that this backlash is focused on the “wrong syllable.”  The real issue is not that universities aren’t getting it right in a debate over he said- she said.  They haven’t been getting it right, because they have systematically ignored the guidance given to them by the Office for Civil Rights (OCR), the arm of the Department of Education (DOE) responsible for implementing and enforcing Title IX.

Title IX is funding legislation.  It simply provides that no academic institution that receives federal funds can discriminate based on gender.  In 2001 the OCR issued a Guidance Document on how schools, secondary and higher education, that receive federal funds, are to address sexual harassment.  A “Guidance Document” is a kind of rules of the contract between the funding source (federal government) and the funding recipient.  These are the rules the funding recipient school must abide by or the funding source can pull the plug.  The original 2001 Guidance document was revised in 2001 and the OCR issued a supplemental letter known as the Revised Sexual Harassment Guidance.  The idea was to provide uniform policies and procedures for eliminating a hostile campus climate that inhibited women from achieving their full academic potential.  The problem is schools didn’t pay attention, ignored the OCR Guidance, and continued with a hodgepodge of disparate policies that were by and large wholly ineffective and non-complaint with OCR Guidance.

The consequences started to come to a head after public disclosure by the DOE in 2009 that showed in that year alone there were 3,300 incidents of forcible rapes reported on college campuses, and during the 2007-2008 school year there were 800 reported rapes and attempted rapes, and 3,900 sexual batteries reported in public high schools.   And those are only what was reported by the victim or the school.  Studies show that most acts of sexual violence go unreported.

In 2011, the OCR issued what is referred to as a “Significant Guidance Document” known as the Dear Colleague Letter (DCL) to federal funding recipient schools which addresses in detail the history of the problem of campus sexual violence, abuse and harassment and lays out an exhaustive process for how to respond to reports of sexual harassment and violence.  It requires schools to respond immediately to notice of such a claim by initiating an investigation.  It provides instructions on how to conduct such an investigation which includes giving both the victim and the accused a formal hearing with every opportunity to provide evidence, witnesses, and even to have attorneys represent them if both sides agree. It provides with interim measures that schools can use to protect the victim from further harassment without necessarily pre-judging the allegation as true or unfairly burdening someone who is accused before any findings have been made substantiating the claim.

If only schools would have adopted these measures we very well might not be having the current debate.  Unfortunately, and for a variety of reasons, recipient institutions as before, largely ignored the DCL.  One of the reasons is the mandatory reporting of such crimes to the DOE under what is known as the Cleary Act.  The Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act (Clery Act).  Under the Clery Act, schools must report crime statistics to the DOE that are publicly disclosed so people can make a judgment of how safe a school is.

The last thing colleges want is to be known as an unsafe school.  To avoid Clery reporting, many schools took the position that they only had to report “substantiated” claims of sexual violence.  Others assumed that if they could resolve the claim through “an early resolution process” instead of a formal due process hearing, then it was not required to be reported.  Rather that operating to incentivize schools to put a stop to sexual violence, schools focused more on how to avoid the mandate to report sexual crimes.

Once women began to take a stand, whether through activism, lawsuits, or documentary films, the DOE and specifically the OCR decided to do what it should have been doing and investigate what has been going on.  There are currently approximately 200 colleges under investigation.   What will come of those investigations given the views of the current administration is uncertain, but it doesn’t look good.

If these schools, and many more, had taken the DCL seriously, and engaged in efforts to deter a hostile environment to begin with, as well as implemented the procedures provided by the OCR for affording all parties due process, we might not be facing a “backlash” from those who believe that victims received preferential treatment.   Notwithstanding, there can be no question that the culture on school campuses, and indeed worldwide, that degrades and demeans women, needs a serious overhaul, starting at the top of the current administration.