Blog

enforcement

A Checklist for Title IX Employee Training
Posted by On Thursday, May 15, 2014
A Checklist for Title IX Employee Training

Campus Climate Surveys and the “Information Problem”
Posted by On Wednesday, November 6, 2013

Education surveys are nothing new. In fact, the Department of Education was established in 1867 to collect “such statistics and facts … as shall … promote the cause of education throughout the United States.”1 In his 1860 education treatise, Herbert Spencer said that asking people how they “think, feel, and act under given circumstances” to solve social problems was a self-evident conclusion: “Society is made up of individuals … and therefore, in individual actions only can be found the solutions of social phenomena.”2

Fast forward to the 21st century and schools are using student surveys to help them address the epidemic of sexual assault affecting college women. In a previous post we talked about the University of Montana’s “rape-tolerant campus” and its agreement with the U.S. Department of Education to take steps to change the campus climate.

On October 29, 2013, the University of Montana used Amazon gift cards to entice students to complete an annual safe campus survey on their knowledge, attitudes, program use, and experiences. The survey will help UM develop “effective programs and [create] positive change in sexual and interpersonal violence,” said UM psychology professor Christine Fiore. This annual survey is part of the “blueprint” for Title IX compliance that resulted from UM’s settlement agreement with the ED. The blueprint also includes educating students, faculty, and staff on what is sexual misconduct and how to file complaints.

Other investigations by the ED’s Office of Civil Rights call for annual student surveys. The State University of New York reached a settlement agreement with ED on October 31, 2013, and will begin conducting annual campus climate assessments to help improve sexual misconduct policies and procedures at its twenty-nine campuses. In May 2013, the Yale News reported that the school’s second “campus climate assessment” found, based on feedback from more than 300 students, it was making progress in addressing sexual misconduct issues.

In addition to a federal investigation, there is the risk of expensive Title IX liability to victims. When schools are faced with six- and seven-figure settlements, why does it take a federal investigation to get to the root of the problem? One possible explanation is what legal scholar Nancy Chi Cantalupo calls an “information problem” about sexual assault and how that impacts a school’s reputation for safety.

According to Cantalupo, many schools are reluctant to confront the problem of sexual violence precisely because helping victims and punishing perpetrators requires reporting. Increased reporting drives crime statistics up and makes the school look like a dangerous place to send your children. On the other hand, when victims are discouraged from reporting crimes statistics go down, making the school look safer. Thus, schools have an incentive to discourage reporting to protect their reputations.

However, sociologists and criminologists who study campus violence suggest that ignoring the problem feeds a rape-tolerant culture that leads to higher rates of sexual assault.3 Fortunately, these tragic consequences are turning into stricter enforcement and grassroots action: federal complaints by sexual assault victims are increasing, Title IX enforcement is being taken more seriously,4 and student organizations like Know Your IX are focusing national attention on the problem.

Cantalupo argues that annual student surveys provide more accurate information on the incidence of sexual violence, which helps schools turn their policies, procedures, and education programs into meaningful change. Therefore, Cantalupo recommends that all schools require students to respond to a campus climate survey before they can graduate or register for classes.

Tucker Reed has filed two federal complaints over the University of Southern California’s handling of her sexual assault complaint. She agrees that exit surveys of graduating seniors would not only be a better way to find out how many students were sexually assaulted while in college, but could also “pinpoint which programs are working and which aren’t.”

Student surveys provide a direct source of data that inform a school’s Campus SaVE Act education programs, and confront the sexual assault problem with a targeted approach to reducing the rate of sexual violence in all schools, not just those featured in the latest headlines for another federal investigation.


1. The History and Origins of Survey Items for the Integrated Postsecondary Education Data System. Report of the National Postsecondary Education Cooperative (2011).
2. Spencer, H. Education: Intellectual, Moral, and Physical, p. 70 (London: D. Appleton and Company 1860).
3. Cantalupo, N. Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence (2011) 43 Loyola Univ. Chicago L.J. 205, 218.
4. Cantalupo says, “In fiscal year 2009, OCR had 582 full-time staffers—fewer than at any time since its creation. And it received 6,364 complaints, an increase of 27% since 2002,” citing Lax Enforcement of Title IX in Campus Sexual Assault Cases: Feeble Watchdog Leaves Students at Risk, Critics Say, Center For Public Integrity (Feb. 25, 2010).

Talk About It!Share on Google+Tweet about this on TwitterShare on FacebookShare on LinkedInShare on TumblrEmail this to someone

Court Rejects Ban on Alcohol Advertising in College Papers
Posted by On Friday, September 27, 2013

Until the U.S. Court of Appeals for the Fourth Circuit’s recent decision limited its reach, the Virginia Alcoholic Beverage Control Board’s (ABC) regulations banned all college newspapers from running alcohol advertising. The ban is part of a comprehensive strategy aimed at reducing underage drinking.

Many colleges and universities take a similar “environmental” or “community-level” approach to combat high-risk drinking. These interventions often enlist retailers and advertisers as allies in prevention efforts. 

But in 2006 two college newspapers affected by the regulation, The University of Virginia’s Cavalier Daily and Virginia Tech’s Collegiate Daily, sued the ABC, claiming the ban violated their First Amendment free speech rights.

The newspapers pointed out that a majority of their readership were over 21 (59-60% of the Collegiate Times‘ and 64% of The Cavalier Daily‘s readers). Therefore, while Virginia had a government interest in preventing underage drinking, the papers’ wide distribution to people over 21 meant that the scope of the regulation was too broad.

In its decision, the Court sided with the college newspapers, acknowledging the state’s interest but rejecting the regulation’s overbroad reach.

“While commercial speech is protected by the First Amendment, there is a ‘commonsense distinction’ between commercial speech and other varieties of speech…[therefore] a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest.”

Under this analysis, the Court concluded, “the challenged regulation fails…because it prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume…Accordingly, the challenged regulation is unconstitutionally overbroad.”

The court also rejected the ABC’s rejoinder that the regulation was justified by the state’s more general interest in combatting abusive drinking, whether by underage or of-age drinkers. The Court cited a previous case that determined “states may not ‘seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, non-misleading advertisements.’”

The ruling, however, did not overturn the regulation itself. It only rejected the regulation as applied to these four-year college newspapers. As commentators have pointed out, where a paper’s underage readership is the majority of its readership, the ban might still apply. A paper at two-year college, for instance, might still be subject to the regulation.

Critics of the ban have lauded the decision as a victory for free speech. Indeed, because school papers operate under tight budgets, the ban had a significant impact on the papers’ finances and thus affected their primary mission of news reporting. According to estimates in The Cavalier Daily, lifting the prohibition would raise advertising revenue by 5 to 8%.

And while harm-reduction specialists may lament the loss of another valuable tool, the research is still divided on the effects of advertising on alcohol consumption. 

Talk About It!Share on Google+Tweet about this on TwitterShare on FacebookShare on LinkedInShare on TumblrEmail this to someone

New Developments in Title IX and Transgender Students
Posted by On Tuesday, August 20, 2013

A recent settlement in California suggests schools will need to be more proactive in accommodating transgender students under Title IX.

In July, the Department of Justice (DoJ) and the Arcadia Unified School District in California reached a resolution agreement based on a complaint that the district violated Title IX by denying a transgender student equal access to education programs and facilities.

The student, whose birth sex was female, has identified as a boy since a young age. With his family’s support, he began transitioning from female to male in the fifth grade. He asked to be called by masculine pronouns, adopted a traditionally male first name, and wore male clothes. The student’s classmates quickly accepted his transition to male.

The school district, however, was less accommodating. It wouldn’t let the student use the boy’s bathroom or locker room. When changing for gym class, he had to use the school’s health offices, even though he had used the same boys’ locker room — without incident — during a summer camp held at the middle school.

And when the boy’s class went on an overnight field trip, the district forced the student to stay in his own cabin with a parent while other students shared cabins. The student had requested several other boys as cabin mates, and indeed, several boys had requested him.

After the student filed complaints claiming the school district was violating Title IX, the district reached a resolution agreement with the DoJ. They agreed to permit the student to use male-designated facilities and “otherwise treat the Student as a boy in all respects.”

On the heels of this agreement, California passed a law to protect transgender students from sex discrimination and clarify existing protections.

In language that recalls the situation at Arcadia, the bill requires that “a pupil be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.” The California bill is the first of its kind in the US.

Accommodating Transgender Students

Both the agreement and the new California law indicate a growing understanding among lawmakers and regulators that schools are responsible for accommodating transgender students.

As the resolution agreement between Arcadia and the DoJ states, “All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX.”

The Arcadia agreement suggests the Department of Education and DoJ’s greater willingness to enforce these aspects of Title IX. Erin Buzuvis wrote at Title IX blog that the Arcadia case “represents the first time that the Department of Education has considered under its jurisdiction to enforce Title IX a claim involving discrimination on the basis of transgender gender identity.”

Universities and colleges should review their policies and procedures to make sure they have the proper policies and procedures to work with transgender students.

Indeed, in the past few years many universities and colleges have already been experimenting with ways to better accommodate transgender students. Here are a few examples worth considering:

  • Some colleges allow students to include their preferred names and pronouns on a class roster instead of their legal names, so students don’t have to ‘out’ themselves as transgender by correcting a professor in front of a full classroom.
  • The University of Arkansas at Fort Smith agreed to allow a transgender student who identified as female to use women’s restrooms. Previously, she had been restricted to using gender-neutral restrooms.
  • Oxford University in the UK changed its dress code so students don’t have to wear ceremonial clothing specific to their gender.
  • Smith College clarified its statement on gender identity and expression to address transgender students at the all-women’s school.

Despite these promising developments, there is still considerable debate on some campuses about what constitutes reasonable accommodations for transgender students.

For instance, this August, the UNC Board of Governors halted a plan by its Chapel Hill campus to offer gender-neutral housing, which allows students of different genders to share apartments and suites, sidestepping problems with single-sex housing for transgender students and providing them a safe space on campus.

Schools can expect these debates about gender-neutral housing and access to single-sex facilities to start playing a larger role in discussions about Title IX.

Talk About It!Share on Google+Tweet about this on TwitterShare on FacebookShare on LinkedInShare on TumblrEmail this to someone

Clery Act: Stricter Enforcement and New Requirements
Posted by On Monday, July 22, 2013

After Jeanne Clery was raped and murdered in her Lehigh University dorm room in 1986, her parents fought to give other families access to information about campus safety, which they hoped would help prevent violence at colleges and universities. Out of their efforts grew the Clery Act, requiring colleges and universities to disclose statistics about crimes that occur on and around their campuses in an Annual Security Report (ASR).

Schools began submitting ASRs in 1992, but enforcement of the act has been lax. According to a 2005 National Institute of Justice report, only 37 percent of schools reported statistics in a manner consistent with federal laws. Yet Senator Arlen Specter claimed in a 2006 Senate hearing that the Department of Education (ED) had imposed only three fines in 20 years.

Now it looks like ED is getting serious about the issue of campus safety and is no longer issuing free passes to noncompliant colleges and universities.

Even as ED ramps up Clery Act enforcement, a series of high-profile complaints filed by students across the country suggest a popular groundswell against noncompliant schools. A group of student activists even hand delivered a petition to ED requesting stricter enforcement of the Clery Act and Title IX.

New Federal Requirements

Indeed, the federal government placed campus safety front and center on March 7, 2013, when they enacted the Campus Sexual Violence Elimination (SaVE) Act. The SaVE Act expanded the crime categories in a school’s ASR to include:

  • hate crimes based on national origin, sexual orientation, and gender identity
  • domestic and dating violence
  • stalking

The SaVE Act also requires schools to create policies and education programs for students and staff that promote awareness and focus on prevention of sexual violence. These education programs are aimed at preventing sexual violence and will bolster the ED’s enforcement effort to bring about lasting change.

Given the tragic consequences of sexual violence, helping students stay safe is a goal we all share and support.

Talk About It!Share on Google+Tweet about this on TwitterShare on FacebookShare on LinkedInShare on TumblrEmail this to someone

Does Your Syllabus Violate Title IX?
Posted by On Wednesday, July 17, 2013

A professor at the City University of New York (CUNY) might have violated Title IX by prohibiting a pregnant student from having more than one medical emergency during the semester.

The National Women’s Law Center  filed a complaint with the Department of Education’s Office of Civil Rights (OCR) on behalf of Stephanie Stewart, an honors student studying on an academic scholarship at Borough of Manhattan Community College in the CUNY system, claiming discrimination and retaliation under Title IX, which prohibits discrimination based on pregnancy.

According to the complaint, Stewart informed her professors that she was pregnant and might miss classes and assignments because of medical emergencies associated with her pregnancy. She wasn’t asking to be excused from assignments, only to be allowed to make up missed work and tests.

Stewart claimed that four of her five professors had no problems accommodating her. One professor, however, allegedly refused to change her policy against make-up tests or assignments.

The complaint alleges that Stewart’s professor explained that she didn’t include a student’s lowest test score when calculating the final grade, so missing one exam due to an emergency wouldn’t be a problem. But, according to an email provided with the NWLC’s complaint, the professor wrote, “What you must try is NOT to have TWO emergencies. Is this clearer now?”

Stewart complained to administration about the policy, writing, “emergencies in their nature are unpredictable, unplanned and unpreventable.”

Stewart says the administration then told her the professor could set policies, and if they didn’t suit Stewart, she should drop the class. Without the school’s support,  Stewart decided to withdraw from the class, which she says cost her her scholarship.

Furthermore, Stewart was planning on graduating that semester; the complaint claims that the dropped course forced her to attend for an additional semester — without her scholarship and while caring for a new baby.

CUNY settled the complaint by agreeing to adopt a new policy to address the rights of students who are pregnant or parents, and to train faculty on the policy. CUNY also reinstated Stewart’s scholarship and reimbursed her for her expenses.

Setting Clear Course Policies

While it’s easy to criticize the professor and the school, the real issue here is that apparently neither clearly understood their legal obligation under Title IX and how it applied to course policies.

Title IX requires schools as well as individual professors to accommodate pregnant students, which means they must be flexible when enforcing any rule or policy and determine the individual student’s needs and how to help them comply with the rule or policy. Indeed, the Department of Education explains that under Title IX:

[A] teacher may not refuse to allow a student to submit work after a deadline that she missed because of absences due to pregnancy or childbirth. Additionally, if a teacher’s grading is based in part on class attendance or participation, the student should be allowed to earn the credits she missed so that she can be reinstated to the status she had before the leave.

Indeed, the NWLC claimed that the school violated Title IX in part by “maintaining a policy that allows individual professors to set rules regarding leave and make-up work, without clear guidelines regarding compliance with civil-rights laws.”

Similarly, Lara Kaufmann, senior counsel at the NWLC, told Slate: “What we notice at the post-secondary level a lot, school administrators want to give professors the discretion to set their own absence policies and make up work policies…And either those professors aren’t aware or don’t care that they have to comply with Title IX and its regulations.”

The point is not to excuse the professor’s conduct but to emphasize that she and other professors must be better informed on their legal obligations when setting or enforcing course policies.

For this reason, all schools should take steps to educate professors of their responsibilities under Title IX. The need for further training is especially pressing in light of the OCR’s recent actions, which suggest greater vigilance and enforcement going forward. Indeed, the Department of Education (ED) just released a “Dear Colleague” letter reminding schools of their obligation to accommodate pregnant and parenting students.

And it’s not just about compliance.  These policies can significantly improve student retention as well.

As Stewart herself eloquently said, accommodating pregnant students can help “thousands of students as determined as I am to set a secure path and bright future for their children and themselves, and we all deserve that chance.”

Talk About It!Share on Google+Tweet about this on TwitterShare on FacebookShare on LinkedInShare on TumblrEmail this to someone