I. INTRODUCTION
On June 23, 1972, President Richard Nixon signed Title IX of the Education Amendments of 1972 (“Title IX”) into law. Title IX is a comprehensive federal prohibition of sex discrimination in any federally funded educational institution. One of the purposes of Title IX is to avoid the use of federal money to support sex discrimination in education institutions and to provide individual citizens effective protection against those practices. Title IX affects about 16,500 school districts, 7,000 postsecondary educational institutions, charter schools, for-profit schools, libraries, museums, vocational rehabilitation agencies and education agencies in the 50 states, the District of Columbia, and American territories.
The U.S. Department of Education’s Office for Civil Rights (“OCR”) enforces Title IX for educational institutions that receive federal funds. OCR resolves complaints of discrimination against educational institutions that receive federal funding and conducts its own agency-initiated compliance reviews of educational institutions.
This paper will explore issues with the enforcement and requirements of Title IX and provide resolutions for improving its enforcement and requirements for sexual misconduct complaints. The resolutions will focus on providing survivors of sexual misconduct (“survivors”) with a greater voice throughout the Title IX process and to prevent future Title IX violations.
II. ISSUES WITH ENFORCEMENT AND REQUIREMENTS OF TITLE IX
i. Absence of Age and School Size Appropriate Title IX Requirements
Currently, the Title IX requirements for grievance procedures are too vague and do not provide substantive guidance to educational institutions. OCR’s Dear Colleague Letter states that a school’s grievance procedures and practices will vary in detail, specificity, and components due to differences in the age of its students, school size, administrative structure, and state or local legal requirements. This provides too much discretion to educational institutions and may lead to future Title IX violations as educational institutions create their own grievance procedures that they believe fulfill their legal obligations. Further, it is difficult for a survivor to win a discrimination case against an educational institution as there are no detailed requirements concerning how an educational institution must respond to a sexual misconduct complaint.
ii. Educational Institutions Train Their Own Title IX Coordinators
OCR has noted in its own studies that improper training of Title IX Coordinators leads to the most harmful Title IX violations. Currently, educational institutions train its Title IX Coordinators, which results in a spectrum of highly trained Title IX Coordinators to poorly trained Title IX Coordinators. Title IX Coordinators play an important role in an educational institution’s grievance procedure. They are the person of contact for survivors who file a sexual misconduct complaint, thus poorly trained Title IX Coordinators can lead to a survivor changing their mind or believing that there is no relief to be gained after filing a complaint. A Title IX Coordinator is responsible for ensuring an educational institution complies with Title IX, thus a poorly trained Title IX Coordinator will severely impact the educational institution’s ability to prevent and fairly resolve sexual misconduct complaints.
iii. Survivors Cannot Provide Direct Feedback to Educational Institutions About Title IX Experience
Currently, there is no formal avenue for survivors to submit anonymous feedback to the educational institution about the survivor’s Title IX experience. The only avenues of redress available for survivors is entering the legal system and filing a complaint with the OCR, which have enormous repercussions for the educational institution and the survivor. Further, those avenues require a survivor to identify themselves to authorities. A survivor may want to avoid identifying themselves while reporting a Title IX violation in fear of retaliation. They may not want to address the issue through OCR or the legal system because they only want to be heard. They may not want the educational institution to receive any punishment or public backlash for the flaws in their grievance procedure. Providing survivors with a formal avenue will allow educational institutions to address any issues. The threat of potential future litigation or an OCR investigation may incentive universities to address the issue solely based on feedback from the survivors.
III. PROPOSED RESOLUTIONS
i. OCR Should Provide Age- and School Size-Appropriate Title IX Requirements
In a Dear Colleague Letter, it can describe how elementary schools, middle schools, high school, and universities of varying size must handle sexual misconduct complaints. Because there will be differences in administrative structure, and state or local requirements, the requirements should be flexible enough to take these factors into account. As it has done with requirements for Title IX Coordinators, OCR can provide generalized descriptions of each stage of the grievance procedure without dictating who needs to do what in the process. OCR can describe in greater detail what is required from the educational institution while providing the educational institution discretion in determining which employee performs which task throughout their grievance procedure. For example, OCR can require that universities hold hearings where both parties can present their case while allowing universities to decide who will oversee these hearings. Thus, the guidance will be more directive without being too stringent.
Creating clear guidelines will make it easier for OCR to review complaints more efficiently and it will provide universities with a clearer understanding of their Title IX obligations. It will also allow for more effective litigation as survivors can easily prove Title IX violations by pointing to comply with the clear guidelines.
ii. OCR Should Train Title IX Coordinators or Provide Training Materials to Educational Institutions
Given the importance of preventing these harmful violations from reoccurring, OCR provide training materials that educational institutions must use in training their Title IX Coordinator or train those who become Title IX Coordinators. OCR should be responsible because it is the government entity in charge of ensuring compliance with Title IX. OCR well-versed in the federal requirements and duties of Title IX Coordinators and provide guidance to educational institutions. Because OCR may know more about Title IX and its requirements than educational institutions, it is the entity in the best position to train Title IX Coordinators.
It would be unrealistic for every educational institution that receives federal funding to send their Title IX Coordinators to the OCR office for training or for OCR to send its employees to each educational institution to train the Title IX Coordinator. Given the advent of technology, OCR could create a computer-based training program. It would augment or completely replace the educational institution’s current training program for its Title IX Coordinators. This training program could be similar to the ones used to train employees on sexual misconduct or it may be best to create a whole new system to address the responsibilities of Title IX Coordinators. The computer-based training program would at least ensure that every Title IX Coordinator knows what Title IX requires of them. Even if the educational institution’s training is lacking in some aspect, the computer-based training program will fill in that gap. If a computer-based training program is too burdensome, OCR should at least provide each educational institution with the relevant literature. This would educate the educational institution on the appropriate level of discretion to provide Title IX Coordinators and it would ensure that the educational institution and its employees know the expectations and duties for their respective roles in the educational institution’s grievance procedure.
Uniform training of Title IX Coordinators would lead to consistent service and prevent some of the most harmful Title IX violations. Further, it may lead to more efficient and fair outcomes when resolving a sexual misconduct complaint.
iii. Survivors Should Provide Direct Feedback to Educational Institutions About Title IX Experience
After a survivor files a Title IX complaint with the educational institution, the Title IX Coordinator should let the survivor know that they can provide anonymous feedback throughout the complaint process and after the educational institution resolves the complaint. The feedback should not be sent to the Title IX Coordinator, who may be able to identify the survivor based on the details they provide in their feedback or may be the issue the survivor identifies. It should be sent to someone who supervises the Title IX Coordinator or is in a position to address the issues in the complaint. This individual will differ based on the school’s administrative structure. The educational institution should also be required to disclose the feedback to OCR. While OCR will be unable to review the complaint through its complaint review process, the data provided should guide OCR’s decision to perform a compliance review of an educational institution.
The feedback should be given through an online forum. Requiring survivors to go to a specified location may impact their ability to remain anonymous. The questions in the feedback form should be broad enough to allow survivors to write their narrative. This allows survivors to provide as much detail as they feel comfortable disclosing and this ensures that the educational institutions will not need to contact the survivor for more details. The feedback should be kept in the educational institution’s system and OCR should be able to gain access to the feedback if they decide to perform a compliance review. During its compliance review, OCR can determine if the educational institution responded appropriately to survivors’ feedback.
IV. CONCLUSION
President Nixon passed Title IX to protect individuals from sexual discrimination, including sexual misconduct, in any federally funded educational institution. Given the continued prevalence of sexual misconduct in all grade levels and the grave consequences for survivors, there must be changes to Title IX to improve its enforcement and effectiveness.
Current Title IX requirements are too vague to be helpful to educational institutions and gives educational institutions too much discretion. To prevent future Title IX violations, OCR should create age- and school size-appropriate requirements so that each educational institution knows what is required of them under Title IX.
Some of the most harmful Title IX violations stem from poorly trained Title IX Coordinators. To prevent future violations, OCR should train Title IX Coordinators or provide the training materials for educational institutions to train their own Title IX Coordinators. Uniform training will lead to less cases of poor training.
Currently, survivors can only enter the legal system or file a complaint with OCR to report Title IX violations. In order to allow educational institutions an opportunity to self-correct any issues in their grievance procedure, educational institutions should create formal avenue for survivors to submit anonymous feedback to the educational institution. This would lessen the burden on OCR and possibly prevent future harm.
