Title IX Center

What is Title IX?

Title IX is a federal law that protects individuals from discrimination based on sex at educational institutions that receive federal financial assistance. The U.S. Department of Education’s Office for Civil Rights (“OCR”) is responsible for enforcing Title IX.

Under Title IX, “[n]o 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.”

Title IX applies to institutions that receive federal financial assistance, including state and local educational agencies. These agencies include approximately 16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories and possessions of the United States.

Educational programs and activities that receive federal funds must operate in a nondiscriminatory manner. Some key issue areas in which educational institutions have Title IX obligations are:

  • sexual harassment
  • sexual assault
  • recruitment
  • admissions
  • counseling
  • financial assistance
  • athletics
  • treatment of pregnant and parenting students
  • discipline
  • employment

An institution that receives federal funds may not retaliate against any person for opposing an unlawful educational practice or policy, or making charges, testifying or participating in any complaint action under Title IX. For an institution to retaliate in any way against a person who makes a Title IX claim is considered a violation of Title IX.

For more information, please contact Title IX attorney Patricia Davis, Ph.D.

Sexual Exploitation of Teenagers: Adolescent Development, Discrimination, and Consent Law

Jennifer Ann Drobac, Sexual Exploitation of Teenagers: Adolescent Development, Discrimination, and Consent Law (University of Chicago Press, 2016).DrobacHiResCover

When we consider the concept of sexual abuse and harassment, our minds tend to jump either towards adults caught in unhealthy relationships or criminals who take advantage of children. But the millions of maturing teenagers who also deal with sexual harassment can fall between the cracks.

When it comes to sexual relationships, adolescents pose a particular problem. Few teenagers possess all of the emotional and intellectual tools needed to navigate these threats, including the all too real advances made by supervisors, teachers, and mentors. In Sexual Exploitation of Teenagers, Jennifer Drobac explores the shockingly common problem of maturing adolescents who are harassed and exploited by adults in their lives. Reviewing the neuroscience and psychosocial evidence of adolescent development, she explains why teens are so vulnerable to adult harassers. Even today, in an age of increasing public awareness, criminal and civil law regarding the sexual abuse of minors remains tragically inept and irregular from state to state. Drobac uses six recent cases of teens suffering sexual harassment to illuminate the flaws and contradictions of this system, skillfully showing how our current laws fail to protect youths, and offering an array of imaginative legal reforms that could achieve increased justice for adolescent victims of sexual coercion. Sexual Exploitation of Teenagers

cover design: Shelly Perry / Stocksy

The Neurobiology of Decision Making in High-Risk Youth and the Law of Consent to Sex

Professor Jennifer Drobac, of the Indiana University Robert H. McKinney School of Law, has published the following article regarding the law of consent:

The Neurobiology of Decision-Making in High Risk Youth & The Law of Consent to Sex, 17 New Crim. L. Rev. 502 (Summer 2014) (peer reviewed) (coauthored with Prof. Leslie Hulvershorn, M.D.).

Summary

Under certain circumstances, the law treats juvenile consent the same as it treats adult decisions, even though a growing body of scientific research demonstrates that children make decisions using less developed cognitive processes. This Article highlights the gaps and deficiencies of legal treatment of juvenile decisions in the context of sex with an adult, as well as integrates new scientific information regarding the decision making of minors in risky situations. Part I examines recent pediatric brain imaging findings during a risky decisionmaking task. Specifically, a new study demonstrates that brain scan results differed between juveniles at high risk for potentially harmful or criminal conduct and healthy children. These differences within juvenile populations support the notion that particular biological and environmental traits in children may further distinguish juvenile decision making from adult decision making. Part II explores the potential impact of these novel neurobiological findings on the legal treatment of juvenile ““consent” to sexual activity. A discussion and summary of the juvenile sex crime statutes of all fifty states demonstrates how the law attributes legal capacity and ability to make legally binding decisions to even very young teenagers. Part II also highlights where state civil and criminal law treat juvenile “consent” inconsistently. Criminal and civil laws’ treatment of juvenile capacity, in the context of sexual activity *503 with an adult, is not congruent with recent neurobiological discoveries regarding juvenile risk taking and decision making. Therefore, society should reconsider designations regarding legal capacity in light of novel neurobiological findings regarding decision making in juveniles.

“The Safe Campus Act”: Two Steps Back for Campus Safety

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The Safe Campus Act (Matt Solomon, R-AZ; Pete Sessions, R-TX; Kay Granger, R-TX) is up for discussion this week in the House Committee on Education and the Workforce.   This bill would prohibit colleges from investigating criminal sexual assault allegations unless they are reported to law enforcement.

The rationale behind the bill sounds like common sense: “If it’s a criminal act, it should be investigated by police.”

The truth of sexual assault on campus is much more complicated, however:

 

  1. According to the U.S. Department of Justice, 80% of sexual assaults are not reported to law enforcement. Non-reporting is, in fact, higher among college students than others of this age group.  The Safe Campus Act would effectively mean that colleges would be helpless to protect men and women victims who want to be protected from further abuse, but who for any reason (including the too-often traumatizing process of making a formal police report) wish to keep their complaint anonymous and/or within the campus community.
  2. The Safe Campus Act would upend current Title IX protections for students and colleges for no good reason. Under the current Title IX, VAWA, Clery Act compliance structure, Colleges do NOT adjudicate criminal issues on their campuses via their investigation/hearing board processes.  Colleges cannot impose criminal penalties.  Colleges are required, however, to investigate and adjudicate violations of their own student and campus conduct policies. Penalties meted out where students are found “responsible for” (not guilty of) sexual assault are much less severe than criminal penalties.
  3. Under the Safe Campus Act, colleges would find themselves unable to investigate some of the most serious violations of their own conduct codes unless students reported these violations to law enforcement.  [If a student was raped, but did not report the rape to police, the college could not investigate the assault.]
  4. Given the unfortunate stigma of reporting rape and sexual assault, students (both male and female) would lose many of the invaluable protections afforded them by Title IX, VAWA, and the Clery Act under The Safe Campus Act.

Here are some reliable stats on campus sexual assaults–underscoring the need for increased, not decreased, protections for students:

AEQUITAE—is founded on the idea that everyone will be safer and better protected (accusers and accused) if the current rhetoric on sexual assault is lowered, if college students, administrators and law enforcement are educated about the issue, and if common sense and due process can prevail throughout a process of adjudication of sexual assault.  AEQUITAE believes and is committed to the idea that campuses can learn to adjudicate sexual assault in ways that are fair for both accused and accusers.

The Safe Campus Act is not the way forward.

Affirming Consent

Under the DOE’s Questions and Answers guidance of April 2014, all institutions of higher education are required to have sexual violence grievance procedures which include: “adequate definitions of sexual harassment (which includes sexual violence) and an explanation as to when such conduct creates a hostile environment.” One of the implications of this requirement is that colleges and universities must have a clear and published definition of “consent” to sexual activity.  This definition of consent will be employed by students as they consider their conduct (to prevent sexual violence), by investigators of sexual violence complaints, and by hearing boards assigned to adjudicate these complaints.

Until recently, most people’s ideas of consent tended to fall into the “no means no” category.  Slogans such as “What part of ‘no’ don’t you understand?” were the battle cry of early anti-rape activists. Consent for sexual activity was thus seen as implied unless one party clearly said “stop.” In the past few years, student campus activists have raised the issue that this “no means no” standard actually fails to protect parties who are incapacitated, traumatized, afraid and/or otherwise unable to verbalize their non-consent.

On July 7, New York became the second state (following California) to pass legislation requiring all universities in New York to adopt a uniform affirmative or “yes means yes” sexual consent policy.  Under this law “affirmative consent” is defined as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” Importantly, consent can be indicated by words or actions–but not by silence or lack of resistance.  Consent, once given, can be withdrawn at any time. And, the requirement of affirmative consent “does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.”

Even where there is no state mandate, many colleges have stepped forward with their own affirmative consent policies–most focusing on conditions where consent is impossible:  Some are very descriptive and specific:  “Consent cannot be given when a person is incapacitated.  Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity.  Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent.”  [State University of New York, “Policies on Sexual Violence Prevention and Response”]

Some affirmative consent policies are less specific, but comprehensive nevertheless:  “UNH considers consent to be a mutual agreement based on a shared desire for specific sexual activities. Consent is not when one person says yes because they are scared or intimidated, when they are being physically or mentally threatened, when there is an imbalance of power, or if one party is drunk or otherwise incapacitated by drugs and/or alcohol.”  [University of New Hampshire, “Sexual Harassment & Rape Prevention Program] 

Critics of affirmative consent policies have argued that they put an unfair burden on the person who initiates sexual activity [typically understood to be a male, although both California and New York policies are clear that obtaining affirmative consent is required of all, regardless of gender].  Some have even argued that affirmative consent policies create cultures of anxiety where “safe sex” means using condoms and signing sex contracts.  Legal analysts have noted that affirmative consent policies do tend to shift the burden from the complainant to alleged perpetrators to demonstrate consent.

Feedback from students and administrators whose colleges employ affirmative consent policies tends to allay fears that affirmative consent policies will either promote unwarranted complaints, or pose an undue hardship on accused perpetrators, however.  College administrators in California report that affirmative consent policies there have tended to focus student attention on the issue of consent–and have initiated productive conversations about consent between students and even between students and their families.  Title IX coordinators in California state that they have not seen a rise in “affirmative consent” cases per se, but there has been more awareness of the impact of drug and alcohol intoxication on inability to give consent and more cases involving intoxication.

However your college decides to define consent (if a definition is not state-mandated), the definition should be clear and useful:  What does “consent” mean?  When can “consent” not be given?  Who is responsible for obtaining consent?  What are the implications for withdrawing consent?  Instituting clear definitions is a first step to prevention of sexual violence–and a good step forward in enhancing Title IX policies for your campus community.

Think of it as borrowing a cellphone.  You wouldn’t just take it.  You’d ask for it first.”    (Carol Stenger, University at Albany Advocacy Center for Sexual Violence)