Categories
Campus Title IX

How the New Title IX Regulation Benefits Sexual Assault Complainants

How the New Title IX Regulation Benefits Sexual Assault Complainants

SAVE

December 12, 2020

Opponents of the U.S. Department of Education’s impending new Title IX regulation fear a huge setback in complainant’s rights. The National Women’s Law Center, a survivor advocacy organization, views the proposed regulation as radically weakening the department’s enforcement of Title IX protections against sexual assault and other forms of sexual harassment in schools. (1)

A strong argument can be made that the new Title IX regulation will benefit sexual assault complainants. (2) Accusers will have far more power to choose alternative paths of resolution, not be bound by their institutions’ rigid rules. Definitions of sexual harassment and supportive measures will be clear and reasonable. Complainants will be able to challenge the credibility of the respondent’s version of events via cross-examination.

In the spirit of empowering complaints with confidence, here are some of the ways the new Title IX regulation will benefit all complainants, the majority of which are women:

  1. Available remedies
    • Remedial action
      • Complainants will be assured if they are not satisfied with the actions of their institution, they can file a complaint with OCR, and if OCR finds the institution has violated these regulations, OCR will mandate remedial action.
  2. Effect of other requirements and preservation of rights
    • Constitutional protections
      • Complainants’ Constitutional rights are protected, including all rights under the First, Fifth, and Fourteenth Amendments.
  3. Designation of coordinator, dissemination of policy, and adoption of grievance procedures
    • Designation of coordinator
      • Complainants will know the identity and contact information of their institution’s Title IX Coordinator.
    • Adoption of grievance procedures
      • Complainants will be assured of a prompt and equitable response to and timely resolution of their complaints.
  4. Definitions
    • Formal complaint
      • Complainants will sign a document upon filing a formal complaint. This will be evidence that they initiated a formal complaint, in case they choose to file a complaint with OCR for institutional negligence or non-compliance with the regulation.
    • Sexual harassment
      • Complainants will be assured of protection against sexual harassment by faculty and staff.
      • Complainants will be assured that sexual conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution.
    • Supportive measures:
      • Complainants will receive free supportive measures before or after filing of a formal complaint, or even when no formal complaint is filed.
  5. Recipient’s response to sexual harassment
    • General
      • Complainants will be assured their institution will respond to a formal complaint. No more deliberate indifference by institutions.
    • Specific circumstances
      • Complainants will be assured that complaints about serial perpetrators will be investigated.
      • In cases where the complainant chooses not to file an initial formal complaint, but takes advantage of supportive measures, the complainant reserves the right to file a formal complaint at a later time.
    • Emergency removal
      • Complainants will be assured that respondents that are deemed an immediate threat to safety will be removed from campus.
  6. Grievance procedures for formal complaints of sexual harassment
    • Basic requirements for grievance procedures
      • Complainants will be assured they have the right to see all evidence and that all relevant evidence will be evaluated.
      • Complainants will be assured of no conflict of interest or bias in persons involved with evaluating the formal complaint, and that all parties involved will be properly trained.
      • Complainants will be assured of a reasonably prompt conclusion of the grievance process, which still allows for delays for good cause.
      • Complainants will be properly informed of the appeal process.
      • Complainants will understand the range of available supportive measures.
    • Investigations of a formal complaint
      • Complainants will not be responsible for proving perpetrator’s responsibility.
      • Complainants will be allowed to present witnesses and inculpatory and exculpatory evidence.
      • Complainants will not be restricted from discussing the allegation.
      • Complainants may have an advisor of their choice, and the advisor may participate in the proceedings per recipient restrictions equal to each party.
      • Complainants will be allowed to cross-examine their alleged perpetrator, and challenge the alleged perpetrator’s credibility.
      • Complainants’ previous sexual behavior or predisposition is not allowable evidence.
      • Complainants do not need to be in the same room as the alleged perpetrator.
      • Complainants will get a copy of the full investigative report at least 10 days prior to a hearing or determination regarding responsibility.
    • Determination regarding responsibility
      • Complainants will be assured a neutral party will be the decision-maker.
      • Complainants will have written documentation of all steps taken in the adjudication process, in the event they choose to file an OCR complaint or lawsuit.
      • Complainants will be assured the determination will be based on facts with a clear rationale for the institution’s actions, and that remedies provided will be designed to restore or preserve access to their education.
    • Appeals
      • Complainants have the right to appeal, if that right is available to the respondent.
      • Complainants will be assured the appeal decision-maker has not been previously involved in the case.
    • Informal resolution
      • Complainants can seek an informal resolution if desired.
    • Recordkeeping
      • Complainants will be assured relevant records will be maintained in the event they choose to file an OCR complaint or lawsuit.

Survivor advocacy organizations should embrace and endorse the benefits of the new Title IX regulation. They should focus on complainants’ empowerment upon implementation of the new rule.

 Citations:

  1. https://nwlc.org/press-releases/nwlc-responds-to-the-department-of-educations-attempt-to-weaken-protections-against-sexual-assault/
  2. https://thehill.com/opinion/civil-rights/423710-the-new-title-ix-regulation-helps-women
Categories
Law & Justice Legal Scholarships Title IX

Single-sex scholarships singled out

2 state colleges’ awards for women face U.S. bias inquiries

by EMILY WALKENHORST ARKANSAS DEMOCRAT-GAZETTE | December 6, 2020 at 3:43 a.m.

story.lead_photo.caption
FILE – The campus of the University of Central Arkansas in Conway is shown Oct. 27, 2008. (AP Photo/Danny Johnston)

Two Arkansas universities have joined the fast-growing ranks of institutions under federal investigation for offering “single-sex scholarships” — namely, scholarships for women.

The U.S. Department of Education this year has opened at least 120 Title IX investigations into colleges and universities for offering “single-sex scholarships.” Two of those investigations were at the University of Central Arkansas and the University of Arkansas at Little Rock.

The number of investigations of “single-sex scholarships” opened in 2020 and still active top the number of active investigations filed this year in every other Title IX category, including investigations into sexual violence and sexual harassment. Those categories combine for only 103 investigations opened this year and still active, according to federal data analyzed by the Arkansas Democrat-Gazette.

The increase in the scholarships investigations is largely because of complaints filed by a single person, said Brett Sokolow, president of the Association of Title IX Administrators. Mark Perry, a finance professor at the University of Michigan-Flint, has filed numerous complaints alleging unfairness to men. In blog posts and letters, Perry has likened his fight against single-sex academic programs, such as science summer camps for girls, as an effort to “end gender discrimination” and to end “gender apartheid.”

In many cases, the investigations have pressured colleges to either discontinue their women-only scholarship programs or make them available to men, as well. If successful in Arkansas, about a dozen privately funded scholarships would have to change.

O p p o n e n t s of t h o s e changes contend that the female-only scholarships and programs are critical to encouraging greater representation of women in certain academic fields dominated by men, such as science and engineering.

While 127 investigations into single-sex scholarships and 69 investigations into single-sex programs remain open, Sokolow acknowledged female-targeted scholarships and programs are ubiquitous. He said hundreds or thousands of schools could have such programs or scholarships.

“It’s pretty widespread,” he said.

Under Title IX, Sokolow said, academic institutional scholarships, whether provided by the institution or its foundation, must be distributed roughly 50-50 to women and men. That’s regardless of the student-body makeup.

In contrast, in athletics, the distribution must be proportional to the gender makeup of the student body. If 60% of students are women, roughly 60% of the school’s athletes should be women and roughly 60% of the dollar amount of athletic scholarships awarded should go to women.

Federal Equity in Athletics Disclosure Act data, examined by the newspaper, show that proportional distribution of athletic scholarships is not followed almost anywhere in Arkansas. Most student-athletes are male, and they receive most of the scholarship money. The scholarship money, however, is often distributed proportionally to the gender makeup of the student-athlete populations.

The idea behind those rules assumed that more men would play sports and that student bodies would be about 50-50 men and women, Sokolow said.

Only one of those assumptions proved to be true in the long run. Once outnumbered, more women now attend college than men, nationwide and in Arkansas.

Data provided by a handful of Arkansas universities show that most institutional academic scholarship money, not including foundation-provided scholarships, goes toward women. In most years, on average, however, female students received less in aid than the average male student.

The Arkansas Democrat-Gazette requested the information from all 10 of Arkansas’ traditional four-year public universities and many said they did not track it or did not respond. The newspaper obtained data outside of athletics from only five.

Colleges and universities commonly fail to track academic scholarship distribution data by race or gender, Sokolow said. But the investigations are causing many to start paying attention, he said.

The federal education department is investigating the University of Central Arkansas and the University of Arkansas at Little Rock for women-only academic scholarships financed by their foundations.

The Arkansas Democrat-Gazette obtained investigative records so far in each case. The complaints weren’t included and the complainants’ identities have been redacted.

The federal education department is investigating seven scholarships awarded to UCA students and at least three awarded to UALR students.

Many of the scholarships target academic programs in which women are less represented, such as science. Some are for business students.

Neither university offers scholarships for only men.

UALR also is under investigation for a single-sex program, based on a complaint from a person who was denied admission into a program.

The investigations have sought data on scholarships awarded, which the universities told the newspaper they have complied with.

The investigations remain open, though many colleges have attempted to resolve the complaints prior to any formal findings, by ending the scholarship programs or opening the scholarships up to more than women.

Sokolow often advises schools to do that. That’s easier when schools are the sponsors of the scholarships, he said. If the scholarships are provided through the foundation, the benefactor must agree to change the terms of the gift.

Others argue the schools shouldn’t have to do those things and the complaints should be tossed.

Earlier this year, the National Women’s Law Center, which has spoken out against the single-sex scholarship complaints, published a guide arguing that academic programs and scholarships targeting a single gender are allowed under Title IX. The guide notes the law states that schools can “take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex.”

“For example … a school can provide targeted programming to women in science, technology, engineering, and math (STEM) because women are underrepresented in these fields,” the law center contends. “Schools use affirmative action to promote diversity and to ensure that past discrimination and exclusion do not perpetuate ongoing exclusion.”