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No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Those 37 words embedded in the Education Amendments of 1972 created a regulatory standard for colleges that receive federal funding to guarantee that women have equal opportunities while at college. Those opportunities included equal admissions, recruitment, financial assistance, academic programs, counseling and guidance, and treatment of pregnant and parenting students.
Title IX also had a significant impact on women in college sports by requiring educational institutions to provide equal opportunities for female athletes in terms of funding, resources, facilities, and overall support, leading to the growth and development of women's sports programs across the country.
Title IX also mandated that colleges provide women a safe and inclusive environment by preventing sexual harassment. Though the term harassment indicates a recurring activity, for Title IX purposes it can mean one incident so severe that it creates a hostile environment thereby preventing the complainant from equal access to a safe and inclusive educational environment. Therefore, sexual harassment can take many forms including:
- Verbal or written harassment
- Sexual assault, including rape and other unwanted sexual touching
- Stalking (when done based on sex)
- Dating or domestic violence
- Discrimination based on the status of being pregnant or a parent
The mandate to provide a hostile free environment for women applies to every college that receives federal funding and is enforced in two ways. First with the threat of withholding those funds for violations. This so-called nuclear option allows the department of education to take away funding from the college for violations of its promulgated rules and regulations. Because colleges receive hundreds of millions of dollars in federal funding, the threat to withhold those funds serves as a powerful incentive to colleges to ensure they are not in violation of the requirements set out by the Department of Education. The second and most useful way the department of education oversees and enforces its laws stems from a supreme court decision that allows individual college students to file lawsuits directly against the college for damages and injunctive relief. This created the teeth to enforcement that the department of education needed to incentivize their requirements. Those requirements include having policies and procedures in place for handling sexual harassment complaints and to take prompt and effective action to address and prevent such behavior. This includes conducting investigations, providing support for victims, implementing measures and imposing sanctions to prevent future occurrences of sexual harassment. Failure to do so means a school could risk losing federal funding.
These measures are a righteous effort to address the serious matter of sexual harassment that occurs on campuses. However, because the mandates are backed by the threat of financially crippling a college and private lawsuits on behalf of the complaining student, universities have implemented policies and procedures that are designed to err on the side of complainants by providing almost no safeguards for the accused college student.
Imagine the scenario wherein a college student has alleged another college student has sexually harassed her. She wants to remain on campus and wants the other student to be removed. You are an educational institution, for example let us say you are Harvard, which receives over 600 million dollars annually from the federal government. You must create and implement a process to determine the result of this complaint. Will you create a system that makes it difficult to remove the accused student from campus leaving the possibility that the female student will have to coexist with her alleged perpetrator and have the power to file suit against you? Or will you create a system that makes it easy to remove the accused student and thereby not come close to violating the federal law and risk losing financial funding on which you depend and or have to deal with a federal lawsuit filed by the complaining student?
This is the reason that in the United States, most colleges do not have a presumption of innocence for the accused student. This is the reason that colleges do not give you the right to have a lawyer participate in proceedings. This is the reason you cannot cross examine your accuser at hearings. I could go on, but the point of the matter is this is the reason our college campuses and the laws dictated by title IX do not provide you the due process rights that everywhere else in the US guarantees. The justification given is and always has been that these are administrative proceedings and therefore you should not be afforded the due process rights you have when facing criminal punishments. This suggests that what is at stake for the accused is not as important as what is at stake in a criminal proceeding. While in many respects this might be true, does that justify removing the procedures our system has created for finding truth? What is at stake for the accused is the loss of a right to pursue the life they want to live. To provide less than adequate procedural safeguards for college students accused, out of fear of losing financial aid, or face a federal lawsuit by a student seems to lack the principle of equal treatment, on which Title IX was founded.