A mere three-and-a-half years into his presidential term, the Biden Administration has now released solidified Title IX reforms aimed to “reinstate a victim-centered approach” within the Department of Education. But Title IX has never been truly “victim-centered,” and it will take more than operational reforms attacking the problem at its margins to create a fair system.
For context, Title IX enforcement works on two levels: schools’ cases between individual students, and the U.S Department of Education’s cases against schools. When victims report sexual misconduct to their university’s Title IX Office, they have several options. They can initiate a formal complaint against another student, or the “respondent,” leading to a school-held hearing dominated by lawyers and aimed to ‘prove’ (or disprove) that the respondent has engaged in conduct prohibited by school policy. The framework of these hearings is determined by federal regulatory policy. Alternatively, they can choose “informal” resolution, including mediation between the victim and their perpetrator. Or they can simply seek support, academic accommodations (like new test dates or a revised absence policy), or both. If a student isn’t satisfied with their school’s handling of their case, they can report them to the Department of Education for non-compliance, or file a civil liability suit.
The process is arduous and tiring. And it is frequently contested.
Across the nation, we see Title IX procedures failing student survivors...
In 1998, Sandra Day O’Connor wrote for the Supreme Court’s majority opinion in Gebser v. Lago Vista Independent School District that for a school to be liable for student-on-student sexual assault, it must have been “deliberately indifferent” to misconduct.
Fast forward to 2024. It is difficult to prove indifference in a court of law. Schools offer some resources and response to reports (even if only minimally). And while the Department of Education can issue warnings against schools found liable, their most substantive mode of recourse is to pull federal funding—a nuclear option that has never been used. Given all the qualifications on its power, the Gebser standard is toothless—and across the nation, we see Title IX procedures failing student survivors through unreasonably long wait times, formal investigation processes that lack trauma-informed enforcement, and the prosecution of students’ sexual history. And even though such prosecution is ‘illegal,’ it's never punished.
On the ground, Title IX has procedural shortcomings. According to one Title IX administrator who prefers to stay anonymous, the process is like “being pulled through a keyhole.” According to a USA Today investigation from 2022, colleges expel only 1 out of 22,900 individuals accused of sexual misconduct. When we have perpetrators of gender-based violence attending classes, being lab partners or hallmates, we question—instead of validate—the experiences of young survivors, further stripping them of their agency. When these young survivors seek justice and healing through Title IX, we ask them what they were wearing, why they didn’t fight back, and then make them wait years after they graduate college before passing down a decision.
That’s the reality of Title IX.
The architects of Trump’s survivor justice system appear to be interest groups who don’t seem to believe in the legitimacy of sexual assault to begin with. How is this acceptable?
Biden’s new rules come after a long history of regulatory ping-pong, with Title IX undergoing massive policy and mission changes every four years. First, the Obama Administration attempted to address campus sexual assault following its rise in media attention, with then-Vice President Biden leading the charge. Then the Trump Administration undertook its own kind of “reform,” overcorrecting for what it saw as bias against men unfairly accused of assault. Documents obtained by Democracy Forward and supplied to news outlet The Nation show that former Secretary of Education Betsy Devos worked in conjunction with controversial men’s rights groups (or “due process” advocates, as they call themselves) such as the National Coalition for Men (NCFM), Families Advocating for Campus Equality (FACE), and Stop Abusive and Violent Environments (SAVE) to write the “reforms.” The groups look to prevent “fake” accusations that “ruin” the futures of young men; both the NCFM and SAVE have been known to publish lists of “rape accusers” online. Until last month, these reforms were the operating systems of higher education institutions across the country.
The architects of Trump’s survivor justice system appear to be interest groups who don’t seem to believe in the legitimacy of sexual assault to begin with. How is this acceptable? The current Department of Education’s official “Definition of Sexual Harassment for Title IX Purposes” requires conduct to be so “severe, pervasive, and objectively offensive that it denies a person equal education access” before it is punishable. The language tries to obscure the ways in which inequity governs how the law is applied. If a young woman who survived sexual assault continues to attend class, despite struggling to get out of bed in the morning, does that mean she has “access’ to education”? Given our societal tendency to not believe women, does that mean her attendance would be proof she’s actually “fine,” and the incident wasn’t actually misconduct?
It becomes clear that Title IX isn’t fulfilling its original promise of eliminating discrimination on the basis of sex. Instead, it becomes another instrument to diminish women’s voices.
For too long, Title IX Offices’ ability to conduct formal accountability processes has been stunted by legal definitions that seem designed to punish those who have the audacity to speak out against inequality and violence. UVA can, and does, provide resources and alternative measures for those reporting sexual assault, such as counseling, academic accommodations and no-contact directives. But for a perpetrator to be punished through suspension or expulsion, the formal process remains the only route. And when an anonymous source tells me that formal investigations are so damaging, so debilitating, that female students use their trauma therapy sessions to grapple with the ‘trial’ instead of with the initial sexual assault itself—well, then it becomes clear that Title IX isn’t fulfilling its original promise of eliminating discrimination on the basis of sex. Instead, it becomes another instrument to diminish women’s voices.
How can we, as students, as citizens, help make Title IX work better? Molly Zlock, the Assistant Vice President & Title IX Coordinator of UVA’s Office for Equal Opportunity and Civil Rights, tells me in an interview: “I’ve conducted and overseen hundreds and hundreds of formal investigations in my career…. And I can see how damaging they can be, in and of itself.” It's obvious that something needs to change.
Federal policy is not dependable, but that is not an excuse for universities to throw up their hands.
UVA’s Title IX Office, from a purely regulatory standpoint, is fighting with one hand tied behind its back given the top-down approach of the U.S Department of Education. The school only has so much procedural wiggle-room. And when those in charge of enforcing Title IX change almost every election cycle, we aren’t getting at the root of sexual assault’s causes. Various interest groups are dogfighting in DC to realize different visions of prosecuting sexual assault. But they’re all operating on the margins of a rape culture issue.
Sexual assault is made possible when we raise young people, especially boys, to believe that sexual conquest and aggression are crucial to building social prestige—and for young men, tantamount to ‘proper’ masculinity. As a school, it's on us to help students unlearn it. Federal policy is not dependable, but that is not an excuse for universities to throw up their hands.
Instead of a diffuse network of sexual assault resources in office and student-led organizations across UVA, we need a centralized network that is easily navigable and operating in tandem. We need our highest offices invested in sexual harm prevention, especially when a 2019 report states that sexual harm is a problem 1:4 UVA women will experience. From Zlock’s perspective, “prevention is lacking at UVA, and it's certainly surprising” given that UVA is “uniquely situated with its history regarding Yeardley Love and the Rolling Stone article to be a leader in that area.” Zlock added, "I look at my work at the Title IX Office as going hand in hand with the University's prevention efforts and I want to assist with those as much as possible."
[Title IX policies] fail to address the misogyny that is always innate to sexual violence. Yes, we can expel “bad apples” from campuses. But we need to take a harder look at how and why the apples seem to keep cropping up.
We have the resources and background to create robust, effective, and influential prevention programs.. Gender-based violence won’t stop occurring because of half-hour, online modules on healthy relationships. It won’t stop from UPD emails advising students not to walk home alone. It requires active and deliberate investment from all of us in the University community, including students. We can call out our friends for sexist jokes, we can learn about how we train women to be silent and self-sacrificing, and we can recognize that power can be abused in a myriad of forms.
Federal regulations on Title IX are ineffective from a policy perspective. We burden victims time and time again by allowing respondent lawyers to question the validity of their lived experiences, by allowing non-trauma informed workers to interact directly with survivors, and let cases drag on for years. But on a larger scale, they fail to address the misogyny that is always innate to sexual violence. Yes, we can expel “bad apples” from campuses. But we need to take a harder look at how and why the apples seem to keep cropping up.
It's time to start talking about sexual assault again: how it’s dealt with by schools, and how the issue festers on the surface of university culture, but always seems to escape meaningful investigation.
And when it comes to federal administration, speak with your voice—and your vote.
Editor's note: UVA and Charlottesville-area resources for those who have experienced sexual assault are listed here: https://womenscenter.virginia.edu/gender-violence/resources.
