Govt Tells Court Title IX Rules Under Review, To Be Changed

A George Washington University Law School public interest law professor says that the Department of Education is making moves to require post-secondary institutions to confront allegations of date rape and other sexual assaults by following stated procedures, and that changes could come within the next month and a half.

According to Professor John Banzhaf, government lawyers said that Title IX, a challenged part of the Education Amendments Act of 1972, is what’s causing some of the issues regarding date rape and sexual assault on campus. Government lawyers stated that “in light of the change in administrations, the Department of Education’s Office for Civil Rights is reviewing the 2011 Dear Colleague Letter challenged in this case.”

Title IX states in part that “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 is the part that has been most frequently argued in the media and in courts, as under the Trump administration, it’s been argued that protections for transgender students have been removed because the 2016 “Dear Colleague” letter put out under the Obama administration was rescinded.

However, there’s another part of Title IX that’s also getting a fair degree of attention with the current concerns over a rape culture brewing on college campuses across the United States.

The 2011 “Dear Colleague” letter from the Department of Education states that under Title IX, students are to be protected from sexual harassment and sexual violence in all school related programs and activities. In addition, as far as next steps upon learning of the harassment or violence are concerned, schools are to do everything they can to eliminate the harassment or violence, address its effects and do what they can to prevent it from occurring again. An investigation into the harassment or violence also needs to promptly occur.

It would appear, though, that these required “prompt” investigations aren’t occurring, and an article in the Yale Law Journal suggests that victims of campus sexual harassment and assault are feeling abandoned by their post-secondary institutions as a result. In “A Better Balance: Providing Survivors of Sexual Violence with “Effective Protection” Against Sex Discrimination Through Title IX Complaints,” authors Alyssa Peterson and Olivia Ortiz argue that the Office of Civil Rights seems to be focusing on only one part of the dual purpose of Title IX over the other.

“Title IX…has two statutory aims: to “avoid the use of federal resources to support discriminatory practices” in education programs, and “to provide individual citizens effective protection against those practices.” OCR’s current approach focuses disproportionately on achieving the former at the expense of the latter,” the authors state.

Title IX Court

It would also appear that the investigative process into sexual assaults on college campuses is taking increasingly longer. Over the course of six years, the Office of Civil Rights registered nine complaints of sexual violence with a 379 day average investigation in 2009 to 164 complaints and an average of 1,032 days to investigate in 2016.

Banzhaf suggests that in order to perhaps pave the way to make a policy change easier regarding how Title IX sexual assault cases are handled, the 2011 “Dear Colleague” letter could simply be rescinded. Banzhaf has also suggested another alternative which could also remove any potential conflicts of interest. According to a recent press release, Banzhaf believes that at the post-secondary level, college staffs are often ill-equipped to handle sexual assault allegations themselves, and so, complaints could be brought forward to a regional consortium.

In The College Fix, Banzhaf suggests that campus security is also not quite the right department to handle sexual assault cases as well.

Banzhaf suggests that “most campus cops are not very well trained” and lack the “sensitivity to handle a felony involving sex.”

As such, Banzhaf suggests that a regional consortium be created to deal with allegations of sexual assaults at the college level. Such a move would also preclude the possibility of there being any sort of conflicts of interests, as any involved professors would not be a part of the investigation unless they themselves were questioned.

Title IX Court

Banzhaf also notes that alcohol is causing an increasing problem as far as the campus rape crisis is concerned. He suggests that although intoxication might be an issue in many cases, incapacitation might not be, and he believes that these two terms might often be confused in these sexual assault cases.

“Incapacitated means she literally can’t communicate, but if she talks even though she is slurring her speech, she is intoxicated and it isn’t rape,” he says.

He is advocating for the creation of an anti-rape mobile phone app. A pre-programmed list of friends could be sent “alerts of varying urgency” if the person with the app is feeling unsafe. The user’s location would also be sent with these alerts.

There are already a few “personal safety” apps being promoted. According to Google Play, Chilla is the first mobile app to be able to detect a woman’s scream, while Safety Siren works as a “rape whistle” simply by being shaken or activated. For $5.99 monthly, Panic Guard can be downloaded to your mobile device, guaranteeing that should you find yourself in a situation where you could be a victim of sexual violence, a video of your attacker could be taken. Circle of Six is likely the closest type of app to what Banzhaf proposes, as an alert could be sent to six friends when you’re feeling ill at ease with someone at a party. My Force sends a message to a security team that will notify the police of your GPS coordinates if you’re in trouble, but at $119 annually, some might find the cost high.

While the Title IX changes regarding sexual assault and violence have yet to be announced, it would seem that there are several parties lobbying for change.

[Featured Image By Elise Amendola/AP Images]