NCPA - National Center for Policy Analysis

Title IX: From Athletics to Assault

October 24, 2014

How did a federal law aimed at improving opportunities for college women to participate in athletics become a vehicle for extensive federal involvement in schools' sexual assault programs?

David Wilezol, co-author of "Is College Worth It?" with former Education Secretary William Bennett, explains how Title IX has become unrecognizable. In 1972, Congress passed the Education Amendments, which included a section that forbade federally-funded colleges from excluding women from activities on the basis of sex: "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."

That section -- known as Title IX -- was meant to improve athletic opportunities for women. But in 1977, Yale law student Catherine McKinnon insisted that sexual harassment was a limit on educational opportunity. She and a group of friends filed a lawsuit on that basis against Yale. The suit was dismissed on standing grounds, but Yale began to create grievance processes for harassment cases, as did other schools.

Wilezol explains that there was no federal mandate that sexual assault cases be considered Title IX violations -- the Supreme Court had never addressed the issue. Terry Pell, who served in the Reagan Department of Education's Civil Rights division, said that his department considered sexual harassment and assault the fault of the student perpetrators, not the fault of the schools. However, a rape and murder at Lehigh University in 1986 prompted new legislation in 1990, from which point the federal government grew more and more involved in sexual assault on campus. Wilezol explains:

  • In 1990, Congress passed the Clery Act and required that schools report on-campus crimes to the federal government. The Department of Education is in charge of compliance, and schools are charged for failing to report incidents.
  • In 1992, Congress required that any schools receiving federal funding develop sexual assault policies and grievance procedures. The Department of Education also monitored compliance with the law, and grants were given to schools for providing sexual assault training.
  • In 1997, the Department of Education -- and the Bush Administration in 2001 -- said that schools should deal with sexual assault under Title IX.

Recently, the role of the federal government in sexual assault on campus has become even larger. Wilezol writes that in 2011, the Obama administration required sexual assault claims to be handled through Title IX. It also discouraged schools from allowing accused parties to cross examine their accusers, encouraging schools to apply a "preponderance of the evidence" standard when determining an accused's guilt, rather than using a "beyond the reasonable doubt standard."

Wilezol warns that schools are going to find themselves under even greater scrutiny in coming years, thanks to the new guidelines from the Education Department. He encourages schools to challenge the new procedures but fears that such challenges are unlikely.

Source: David Wilezol, "How the Education Department Warped Title IX," Minding the Campus, October 22, 2014. 


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