How a Gender Equity Law Evolved into a Sexual Assault Protection Tool

One in five women is sexually assaulted while in college, often by someone she knows. So says the first report of the White House Task Force to Protect Students from Sexual Assault, which was published in April 2014. Other data from the U.S. Department of Education reported 5,000 instances of forcible sex offenses on college campuses in 2013, but the true number is estimated to be six times higher.

A month after the task force released its report, the Department of Education’s Office of Civil Rights (OCR) announced that 55 colleges and universities were under investigation for mishandling sexual assault and harassment cases under Title IX of the Education Amendments of 1972, creating a sense of urgency around the issue on college campuses.

For most people, the gender equity law, Title IX, applies to women in collegiate sports, but the legislation was never that specific. Title IX merely states that no one shall, on the basis of sex, be denied access to an education program or activity that receives federal financial aid.

Following the release of the list of schools under investigation, federally funded colleges and universities have stepped up efforts to address sexual violence on their campuses and comply with Title IX for fear of losing funding. And since May 2014, the number of schools under investigation by the OCR has more than doubled, many for failing to comply with Title IX as outlined in a 2011 Dear Colleague Letter (DCL) from the OCR.

The OCR occasionally disseminates DCLs to provide clarity to institutions on federal guidelines and regulations. Its 2011 DCL outlined exactly what schools need to do to comply with sexual assault and harassment cases under Title IX: disseminate a nondiscrimination statement to students, parents, and employees; designate a Title IX coordinator; offer a transparent grievance process for Title IX complaints; and be proactive in prevention and training.

Indiana Sen. Birch Bayh — who co-authored the Title IX legislation — exercises with female athletes at Purdue University in the 1970s. (Photo source: Wikipedia)
Indiana Sen. Birch Bayh — who co-authored the Title IX legislation — exercises with female athletes at Purdue University in the 1970s. (Photo source: Wikipedia)

The 2011 DCL was mostly overlooked, though, until the list of schools was released. The scrutiny finally catalyzed universities to try and make sense of what Nelia Viveiros at the University of Colorado (UC) Denver says can be “murky” legal territory.

Viveiros is special assistant to the provost and acting Title IX coordinator for UC Denver and its Anschutz Medical Campus. She is responsible for overseeing investigations and ensuring due process, building awareness on campus, and providing training. She even helped revamp the reporting website.

Viveiros sees the OCR’s investigation as an opportunity for improvement, not a cause for concern.

“OCR audits can be scary, but they’ve become a good thing for a lot of schools,” Viveiros says. “The OCR comes in, and you [learn] what they are looking for.”

Eighteen higher education institutions have received federal grants for programs to reduce sexual assault, domestic violence, dating violence, and stalking on campus. But Viveiros says the money for UC Denver’s program has been funded by the university itself, and she believes the steps schools are taking are about more than just following the law.

“I can’t believe there’s anyone who just wants to check off a compliance box,” she says. “I believe schools do care about the greater good and the human element.”

From Athletic Equity to Sexual Violence Protection
Sarah Fields, a UC Denver professor of communication whose research focuses on sports and the law, says the 37 words of Title IX legislation — buried deep within the 147-page long Education Amendments of 1972 — were never intended to be specifically about sports.

“Title IX was originally enacted to get women into college,” she says. “The people who drafted the legislation didn’t think it would apply to sports, but the press focused on that, and now everyone thinks it only relates to sports.”

Before Title IX was enacted, women in higher education were openly discriminated against. Fields says the University of North Carolina solicited applications from “exceptionally well-qualified women,” for example, with no parallel restrictions or prerequisites for men. Additionally, women weren’t receiving as much financial aid, and the environment was generally hostile for them.

The women’s basketball team at Baylor University during a practice game in the 1970s (Photo source: flickr, The Texas Collection, Baylor University)
The women’s basketball team at Baylor University during a practice game in the 1970s (Photo source: flickr, The Texas Collection, Baylor University)

Women were barred access to the University of Virginia’s College of Arts and Sciences until 1970, and in 1966, President Lyndon B. Johnson’s daughter was denied re-enrollment at Georgetown University’s School of Nursing after her wedding, as married women were not allowed to attend the school.

Sexual harassment was not part of the social vernacular in the 1970s and thus was not considered a part of Title IX at the time. But in 1997, the OCR released guidelines on sexual harassment and individuals’ protection from it under Title IX, noting that when harassment is severe enough, it can prevent a student from full and equal participation in education — which Title IX protects.

But Fields says sexual assault cases under Title IX stayed mostly under the radar, until what she calls “a series of bad behavior by college athletes,” including an incident at the University of Colorado at Boulder. In 2001, a group of football players and recruits at the university were alleged to have raped two women at a party. The university eventually paid $2.5 million in damages to the women in 2007.

Despite the increased focus on campus sexual assault, Fields says there are still many instances of Title IX complaints in sports, especially regarding unequal access to facilities. Following a recent Title IX complaint, a high school boys’ baseball team tore down an equipment shed rather than build an equal facility for the girls’ softball team.

“There’s still a huge irrationality about sports in America,” Fields says.

Congress Proposes Campus Accountability Legislation
Title IX is not the only legislation that protects against sexual violence on college campuses, and it may not be the last. The Clery Act and the Campus Sexual Violence Elimination Act (SaVE Act) provision of the Violence Against Women Reauthorization Act (VAWA) work in conjunction with Title IX to protect all students.

The Clery Act requires colleges and universities to make public any reports of crimes on campus, including when and where they occurred. The SaVE Act adds incidents of domestic violence, dating violence, and stalking to the crimes that must be reported.

A bill introduced in Congress this past March would place even more responsibility on universities to protect students from sexual violence. Led by Sens. Claire McCaskill, D-Mo., and Kirsten Gillebrand, D-N.Y. — and supported by 30 other senators from both parties — the proposed Campus Accountability and Safety Act (CASA) outlines steps to combat sexual violence on campus through enforcement and reporting.

Flags representing sexual assault survivors at the University of Oregon (Photo source: flickr)
Flags representing sexual assault survivors at the University of Oregon (Photo source: flickr)

CASA would require schools to conduct campus climate surveys every two years and ask specific questions relating to students’ experiences with sexual assault and harassment on campus, the results of which would be published on their websites. The bill would also codify the OCR’s guidance on Title IX, place heavy fines on universities for noncompliance, and require schools to use a standard disciplinary process when handling cases.

Whether or not new legislation is passed, the buzz around campus sexual assault is already causing a shift. This May, the office of Sen. Barbara Boxer released a report by the Department of Education showing that the rate of reported on-campus sex offenses nearly doubled in five years, from 3,357 in 2009 to 6,073 in 2013.

With the increasing number of reported cases and growing awareness of sexual assault on college campuses, universities can no longer afford to ignore the issue. Title IX, along with other legislation, will continue to shape the way institutions of higher education address women’s rights and safety on college campuses.●

Rebecca Prinster is a senior staff writer for INSIGHT Into Diversity.