I was asked to write an article about whether schools treat survivors fairly. As a Title IX attorney, a survivor of multiple sexual assaults, and an abolitionist working alongside my comrades to build a world that will one day be free of police and prisons, I want to share with you what I know about Title IX, punishment, and true justice—for survivors, wrongdoers, and all students.
Title IX Is Not a Criminal Law
Before I go on, I want to be very clear: Title IX is a civil rights law, not a criminal law.
Criminal laws are intended to punish the defendant, who faces incarceration or even death if they are found guilty. Meanwhile, the victim is not even a party to the case, and criminal proceedings provide no direct material support to victims.
In contrast, education civil rights laws were created to ensure all students’ equal access to education. Specifically, Title IX prohibits all forms of sex discrimination in schools, including sexual assault, dating violence, and other sex-based harassment. Schools are required under Title IX to offer supportive measures to complainants that help them feel safe and learn. Nothing in the Title IX statute, regulations, or guidances requires punishment of harassers or dictates any specific type of disciplinary sanction.
With that in mind, let’s begin.
Too Often, Student Survivors Are Ignored and Punished Instead of Being Helped
Sex-based harassment, including sexual assault and dating violence, against students is grossly prevalent and underreported. The numbers are quite appalling. In middle and high school, one in five girls ages 14–18 has been kissed or touched without their consent, but only two percent of victims ask their schools for help. Kayla Patrick & Neena Chaudhry, Nat’l Women’s L. Ctr., Stopping School Pushout for Girls Who Have Suffered Harassment and Sexual Violence 1–2 (2017) [hereinafter Stopping School Pushout]. In college, 26 percent of women, 23 percent of transgender or nonbinary students, and 7 percent of men have been sexually assaulted since enrolling, but only 12 percent of women, 21% of transgender or nonbinary students, and 10 percent of men who are assaulted report their assault to a school program. David Cantor et al., Report on the AAU Campus Climate Survey on Sexual Assault and Misconduct ix, A7-27, A7-30 (Oct. 15, 2019) [hereinafter Campus Climate Survey].
There are many reasons why survivors don’t ask their schools for help. Many survivors fear being disbelieved or blamed because the assault began consensually or because alcohol or drugs were involved. Many are afraid of retaliation from their assailant and peers, discipline by their school, or unintentional contact with police or immigration officials. Some survivors also don’t report because they don’t want to get their assailant in trouble—particularly if that person is an intimate partner, crush, or friend. See, e.g., Elizabeth Tang & Ashley Sawyer, Nat’l Women’s L. Ctr. & Girls for Gender Equity, 100 School Districts: A Call to Action for School Districts Across the Country to Address Sexual Harassment Through Inclusive Policies and Practices 2 (2019), https://nwlc.org/100schooldistricts [hereinafter 100 School Districts].
Even when survivors are brave enough to come forward, they are often ignored and dismissed by their schools. A 2020–21 survey conducted by Know Your IX, a survivor- and youth-led organization, revealed a pattern of outrageous conduct by schools. In several cases, school officials dismissed victims outright because it was a “he said, she said” matter or because “[the assailant] said he didn’t do it.” Sarah Nesbitt & Sage Carson, Know Your IX, The Cost of Reporting 12 (2021) [hereinafter Cost of Reporting]. One high school survivor reported that school officials told her the assault was her fault, it could have been worse, and “at least” she wasn’t raped. Id. In one particularly appalling case, a dean told a survivor, “No one [at this school] would care if you killed yourself, including [your assailant].” Id. at 23.
Student survivors who are punished after reporting gender-based violence rarely get national attention, but their stories are by no means isolated incidents. Consider, for instance, the fact that within a 12-month period in 2018–19, two school districts in Georgia—one hour’s driving distance from each other—were sued for suspending or expelling a survivor after she reported her rape. Pub. Just., Doe v. Gwinnett County School District (last updated 2022); Nat’l Women’s L. Ctr., NWLC Sues Georgia High School for Expelling Student Who Reported She Was Sexually Assaulted After School (Aug. 23, 2019).
Nationwide, schools are more than twice as likely to discipline girls who are survivors than nonsurvivors, for conduct both related and unrelated to their report of harassment. Stopping School Pushout, supra, at 8. Girls and women of color, especially Black girls and women, are particularly vulnerable to being punished when they report sex-based harassment to their schools due to intersectional sex and race stereotypes that label them as “promiscuous,” “aggressive,” and less deserving of care and protection. Tyler Kingkade, Schools Keep Punishing Girls—Especially Students of Color—Who Report Sexual Assaults, and the Trump Administration’s Title IX Reforms Won’t Stop It, The 74 Million (Aug. 6, 2019).
Know Your IX’s study is replete with harrowing stories of survivors being punished at all levels of education. They were punished for physically defending themselves from their assailants, disciplined for merely telling their friends about their assaults, and even dismissed from graduate programs for “unprofessional conduct” (i.e., leaving the classroom when hearing their assailant’s voice triggered a trauma response). Cost of Reporting, supra, at 16. They were subjected to retaliatory, frivolous cross-complaints of “harassment” from their abusers. Id. at 18–19. In one example, after a student was found responsible for rape and strangulation and lost his appeal, he filed a cross-complaint against his victim, accusing her of raping him during the same encounter that he had previously claimed was consensual. Id. at 19. In a number of other disturbing cases, survivors were falsely reported by their abusers as actively suicidal and in need of a “wellness check” from police, causing them to be involuntarily committed to an inpatient facility and subsequently perceived as “unstable” and not credible. Id. at 20.
This is how survivors’ lives are ruined. Across the country, survivors are forced to miss class, receive lower grades, withdraw from extracurricular activities, change majors, drop to part-time enrollment, drop to a two-year degree, pay extra tuition to retake courses, graduate late, or leave school altogether. See, e.g., Cost of Reporting, supra. In some cases, they lose campus jobs or scholarships that render them homeless. Id.at 7. Ultimately, 34 percent of college survivors are forced to drop out. Cecilia Mengo & Beverly M. Black, Violence Victimization on a College Campus: Impact on GPA and School Dropout, 18 J. Coll. Student Retention: Res., Theory & Prac. 234, 244 (2015). (And that is if they are not expelled first.)
It’s Easy for Schools to Get Away with Mistreating Survivors
Title IX case law illustrates how frequently schools ignore and punish survivors with impunity. In 1998 and 1999, the Supreme Court held that student victims of sex-based harassment who sue their schools for money damages under Title IX must prove that:
- They experienced “severe” and “pervasive” harassment;
- Their school had “actual notice” of the harassment;
- Their school exercised “substantial control” over the harasser and harassment; and
- Their school responded with “deliberate indifference.”
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633, 645, 650 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
For comparison, victims of workplace harassment who sue their employers under Title VII are subjected to far less burdensome standards. For example, if the harasser is the victim’s supervisor and the harassment results in a tangible employment action, the employer is strictly liable. Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). And in coworker harassment cases, an employee victim need only prove:
- They experienced “severe” or “pervasive” harassment;
- The employer had “constructive notice”—i.e., knew or should have known—of the harassment; and
- The employer failed to take “appropriate corrective action.”
Vance v. Ball State Univ., 570 U.S. 421, 453–54 (2013); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
Over the last 25 years, the lower courts have zealously applied the Title IX litigation standards—known as the Gebser-Davis standards—to deny student victims who are ignored and punished by their schools of any relief. For instance, in many jurisdictions, federal appellate and district courts have held that under Title IX:
- Schools may ignore forced kissing and groping (because it is not sufficiently “severe”) or sexual assault (because it is not “pervasive” unless it occurs at least twice).
- Schools don’t have “actual notice” of sex-based harassment and therefore may ignore it if the employee who knew about it was not high-ranking enough—e.g., a professor, teacher, athletics coach, guidance counselor, security guard, or, in some cases, even a principal or superintendent.
- Schools don’t have “substantial control” over sex-based harassment and therefore may ignore it if it occurs off campus outside of a school activity—even if the victim and harasser continue to see each other at school and the victim is too afraid to attend classes.
- Schools may respond egregiously to sex-based harassment without being “deliberately indifferent”—e.g., by suspending or expelling a survivor for reporting an assault or by intentionally shutting down an investigation to protect the respondent’s or school’s reputation.
- In addition, in at least four states, colleges and universities may ignore peer sex-based harassment unless the survivor is harassed or assaulted again after the school had notice of the first incident.
Shiwali Patel, Elizabeth X. Tang & Hunter F. Iannucci, A Sweep as Broad as Its Promise: 50 Years Later, We Must Amend Title IX to End Sex-Based Harassment in Schools, 83 La. L. Rev. 971–84 (2023) [hereinafter We Must Amend Title IX].
In contrast, disciplined respondents who sue their schools for so-called reverse sex discrimination under Title IX can survive a motion to dismiss by merely alleging that there was a “plausible inference” that their schools were motivated by anti-male bias. Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019). That’s it.
Just so we are clear: A student who is ignored or disciplined by their school after suffering sexual harm faces a far more stringent Title IX litigation standard than a student who is disciplined by their school for causing sexual harm.
Ask yourself: Who is a school incentivized to protect? Who is a school incentivized to discard?
Rape Culture and Misogyny Are Alive and Well in Title IX Offices
Despite the well-documented legal and social biases against victims, respondents often claim that their schools are biased against them. But a recent study on “himpathy and hysteria” found that Title IX staff overwhelmingly held anti-survivor ideologies consistent with the inequities seen in Title IX case law. Namely, staff members viewed male respondents as sympathetic and believed that in nearly all cases it would be immoral to punish a sexual harmer through a Title IX investigation. Nicole Bedera, I Can Protect His Future, but She Can’t Be Helped: Himpathy and Hysteria in Administrator Rationalizations of Institutional Betrayal, 95 J. Higher Educ. 30, 30–31, 36–44 (2023). To them, the best Title IX outcomes were no findings—and therefore, no punishment of (primarily male) respondents. Id. at 36–44. In contrast, staff viewed women complainants as either “hysterical” or “too traumatized” to be helped. Id. at 31, 36, 41–44. In other words, women victims were seen as either (1) not credible or (2) credible but not helpable—an utterly lose-lose situation.
Women victims were viewed as untrustworthy, even in the face of indisputable inculpatory evidence. For instance, despite having a voicemail of a woman’s ex-boyfriend unmistakably threatening to kill her, one Title IX investigator in the study still questioned the complainant’s motives for filing the complaint merely because she had also posted about the respondent’s infidelity on social media. Id. at 42. To the investigator (who was also a woman), the complainant was merely seeking revenge for infidelity, rather than seeking safety from premeditated murder. Id.
Women respondents, however, were decidedly not seen as sympathetic. In one study anecdote, a 17-year-old Black girl punched a white male student for using racial and gender slurs against her, which he claimed amounted to “discrimination” against his “Western Chauvinist” (i.e., white supremacist and misogynistic) beliefs. Id. at 44–45. She was pressured by university officials into withdrawing because her “family” and “peer relations” problems meant she was “too immature” to be in college. Id. In stark contrast, he was not disciplined at all; rather, the school offered him additional resources to stay in school because he had “family” (!) and “economic” problems that warranted more support. Id. The double standard is staggering and illustrative of a broader pattern of schools’ lack of sympathy and care for girls and women of color—regardless of whether they are complainants or respondents.
False Accusations Are Rare
Ok, let’s debunk the myth that false accusations of sexual assault and dating violence are rampant. Here is a common scenario: When someone (usually a man) is alleged to be a harasser or abuser, their supporters (usually women) often dismiss the allegations as false by saying, “He never harassed me.” But that is irrelevant. There’s a Washington Post article that explains it succinctly: “‘He never harassed me’ isn’t evidence. It’s misdirection.” The author noted:
Sexual harassment seems to be one of the few misdeeds for which we accept testimonies from non-victims as evidence of innocence. Serial killers manage to not murder everyone they meet. Burglars don’t rob every house they pass. We don’t call the owners of un-robbed houses to the witness stand and ask them to add their statements to the public record: He couldn’t be a thief, your honor—he once visited my home, and yet I still have my flat-screen.
Monica Hesse, “He Never Harassed Me” Isn’t Evidence. It’s Misdirection., Wash. Post. (Aug. 2, 2018), https://wapo.st/3P4KrXb. Relatedly, I once read about an anonymous woman comic who humorously demolished the logic of those who defend alleged harassers with, “I never saw anything.” She asked, “Do you . . . think . . . everything . . . that happens happens . . . around. . . you? Like. That’s some object permanence shit. That’s some peekaboo toddler level nonsense.” Ben Moberg [@Runaway_Writes], Twitter (original date posted unknown; retweeted as early as Nov. 19, 2017) [screenshot on file with author].
Let’s look at some data. The only available studies on false reports have been based on police reports, so I will discuss them here (but again, please bear in mind that Title IX is not a criminal law). In these studies, researchers found that police often misclassified reports of sexual assault as “false” when they were merely unsubstantiated or because the victim was intoxicated, was mentally ill, delayed reporting, or was assaulted by an acquaintance or intimate partner. David Lisak et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 1318 (2010). In one of the largest and most methodologically rigorous studies on false reports, researchers found that British police relied on these types of biases to classify eight percent of 2,643 reports of sexual assault as “false,” whereas researchers concluded the actual rate was only 2.5 percent. Kimberly A. Lonsway, Joanne Archambault & David Lisak, False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-stranger Sexual Assault 3 (2009). In other words, nearly 70 percent of those “false” reports were actually credible.
Put it another way: Victims are far more likely to be falsely accused of making a false accusation than to make an actual false accusation. Of course, these police biases in sexual assault investigations are not even surprising given that sexual misconduct is the second most common form of police misconduct, and police sexually assault at rates more than double that of the general public. Andrea J. Ritchie, How Some Cops Use the Badge to Commit Sex Crimes, Wash. Post. (Jan. 12, 2018), https://wapo.st/3IkIS3E; Cato Inst., National Police Misconduct Reporting Project 2010 Annual Report 3 (2010), https://perma.cc/CU9X-UYRY.
There’s another piece of math to keep in mind. The vast majority of sexual assaults are not reported to police—or to anyone. For instance, 98 percent of girls ages 14–18 and 88 percent of college women who are sexually assaulted do not report the incident to their schools. Campus Climate Survey, supra, at A7-27; Stopping School Pushout, supra, at 2. So, when you take into account the total number of sexual assaults (both reported and unreported), the actual rate of false accusations becomes infinitesimal—one study estimated it to be 0.5 percent. Joanne Belknap, Rape: Too Hard to Report and Too Easy to Discredit Victims, 16 Violence Against Women 1335 (2010) [hereinafter Too Hard to Report].
So, why does the myth persist that false accusations of sexual assault are ubiquitous? (I think of the former Trump official charged with enforcing Title IX, who absurdly claimed that “90 percent” of campus sexual assault allegations were false. Erica L. Green & Sheryl Gay Stolberg, Campus Rape Policies Get a New Look as the Accused Get DeVos’s Ear, N.Y. Times (July 12, 2017), https://nyti.ms/3UVeQLr.) One reason is that many rapists genuinely do not understand what rape is. A 2014 survey of college men found that 18 percent of survey respondents would not “rape a woman” even if “nobody would ever know and there wouldn’t be any consequences” but would “force a woman to sexual intercourse” (i.e., rape) under the same circumstances. Victoria Bekiempis, When Campus Rapists Don’t Think They’re Rapists, Newsweek (Jan. 9, 2015; last updated Mar. 12, 2016). I won’t draw sweeping statistical inferences from a single study. But clearly there exist people who would absolutely rape someone while genuinely believing themselves incapable of rape.
Note: Relatedly, the courts have long recognized that behavior can constitute harassment even when the harasser does not intend to harass. E.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 368 (1993) (whether harassment causes a hostile environment depends on an objective analysis and “the victim’s subjective perception”); Lounds v. Lincare, Inc., 812 F.3d 1208, 1228 (10th Cir. 2015) (“the district court repeatedly erred by. . . focusing on [the harassers’] ostensibly benign motivation or intent”); Newton v. Dep’t of Air Force, 85 F.3d 595, 599 (Fed. Cir. 1996) (“the actor’s lack of specific discriminatory intent does not prevent his or her deliberate conduct from being actionable”); Woods v. Graphic Commc’ns, 925 F.2d 1195, 1201 n.6 (9th Cir. 1991) (“Intent to ‘harass’ is not required because the relevant viewpoint is that of the victim”); King v. Bd. of Regents of Univ. of Wisconsin Sys., 898 F.2d 533, 537–38 (7th Cir. 1990) (same); Vaughn v. Pool Offshore Co., a Div. of Pool Co. of Tex., 683 F.2d 922, 925 n.3 (5th Cir. 1982) (“it is not necessary to show intent in a case challenging a discriminatory working environment”). Even the Trump administration’s Title IX regulations—written by officials who fearmongered extensively about false accusations—do not include an intent requirement in their definition of “sexual harassment.” 34 C.F.R. § 106.30(a)(2) (eff. Aug. 14, 2020).
There’s No Such Thing as a “Perfect Victim”
Another reason the false accusation myth persists is that victims don’t usually look or act like the stereotype of a “perfect victim.” Judges who have presided over sexual assault cases know this—in fact, they wrote a whole DOJ-funded manual to educate their fellow judges. Lynn H. Schafran & Claudia Bayliff, Nat’l Jud. Educ. Program, Legal Momentum & Nat’l Ass’n of Women Judges, Judges Tell: What I Wish I Had Known Before I Presided in an Adult Victim Sexual Assault Case (2017).
The manual explained that many victims display “counterintuitive” behaviors during their assaults. For example, many victims often don’t fight back due to tonic immobility (paralysis), dissociation (a feeling of leaving one’s body), or a strategic decision to avoid physical injury or death. Id. at 6–7. Also, survivors of any gender and with any genitalia can experience involuntary physiological stimulation despite a lack of consent or sexual desire. Id. at 9–10. And many survivors—70 percent of incapacitated survivors and 48% percent of violent rape survivors—have no injuries. Id. at 5.
In addition, the manual dispelled myths about assailants. It explained that the typical rapist knows their victim, premeditates the assault, and is a serial sexual harmer. Id. at 10–12. Contrary to popular belief, sexual harmers tend to use psychological tactics (e.g., manipulation, threats) and alcohol to make their victims more vulnerable, but little overt violence—only as much as is needed to terrify or coerce their victims into submission. Id. at 10–11.
The manual also explained survivors’ counterintuitive post-assault behaviors. For instance, survivors often delay reporting for many reasons, including because they do not always immediately recognize an assault as assault—particularly when the assailant is a romantic partner. Id. at 7–8. Many victims contact their assailant after the assault in an attempt to normalize the encounter; sometimes, they try to reassert control by seeking a subsequent consensual encounter with their assailant. See id. at 8. In addition, a survivor may sometimes recount their assault differently because traumatic memories are stored and retrieved differently from nontraumatic memories, and trauma can cause partial or full amnesia. Id. at 9. Furthermore, victims often appear emotionless when recounting their assault to avoid being labeled “hysterical,” to avoid letting their assailant see how much they are suffering, or as a form of self-preservation when repeatedly recounting a traumatic event. Id.
I have also heard many other rape myths regarding survivors’ credibility—for example, that they are probably lying if they were seen going out the following night. This is grotesque logic. Are victims not permitted to seek joy and healing in the aftermath of trauma? Or must they perform public misery for some undefined period of time for the satisfaction of strangers?
And then, there’s the myth that an abuse victim who fights back is not a “real victim” or is a “mutual abuser.” There’s no such thing as “mutual abuse.” Nat’l Domestic Violence Hotline, Mutual Abuse: It’s Not Real (last visited Feb. 29, 2024). When a victim fights back against their abuser, that is called self-defense. After all, it cannot be that victims are blamed as weak if they do not fight back, yet villainized as an “abuser” and discredited as a victim if they do fight back.
In summary, most incidents of sex-based harm are not remarkable: They typically involve two people who know each other, potentially alcohol or drugs, no overt violence, and no visible injuries.
I Know It’s Easy for Victims to Be Imperfect Because I’ve Been One
Let me tell you a story about an imperfect victim: One night while studying for the bar exam, I met a man—a progressive lawyer and newly minted law professor from a dating app—at a nearby bar. When the bar closed, he offered to continue our date on his building’s rooftop nearby. The roof turned out to be closed, so we went to his apartment instead. After an hour of talking in his living room, I announced that I was going home. In response, he kissed me. I kissed him back but repeated that I was going home. Without speaking, he easily picked me up, carried me to his bedroom, and pinned me to his bed. I laughed—because I couldn’t believe it was happening, and because women are conditioned to minimize our discomfort and avoid conflict. I said again that I was going home and tried to push him off, but he continued kissing me while laying on top of me. With a great deal of difficulty, I extricated myself from under him, told him again that I was leaving, and walked to the bedroom door. He grabbed me by the arm and dragged me back to his bed. He was laughing. I wrenched my arm from his grasp and told him: “I’m not playing hard-to-get with you.” He finally stopped smiling.
To recap: I met him late at night, willingly went to his apartment, kissed him back, and laughed when he first assaulted me. Did that eviscerate my five clear expressions of nonconsent to sex? A few days later, I flew to two other cities and partied with dozens of friends—all heavily documented on social media. Did that make me a less credible victim? I never reported him to his law school’s Title IX office. If I had, would I have been “ruining his life”?
Men and Boys Are Far More Likely to Be Victims Than to Be Falsely Accused or Punished
Despite fearmongering headlines to the contrary, the overwhelming majority of Title IX respondents face no punishment at all. A study of 1,054 reports of sexual misconduct during 2015–16 at 42 institutions of higher education found that (1) the vast majority of reports did not even lead to an investigation, (2) the majority of investigations resulted in a finding of “no responsibility,” and (3) most students who were found responsible were nevertheless not disciplined. Tara N. Richards, No Evidence of “Weaponized Title IX” Here: An Empirical Assessment of Sexual Misconduct Reporting, Case Processing, and Outcomes., 43 L. & Hum. Behav. 180, 187 (2019) [hereinafter No Evidence of “Weaponized Title IX”]. Out of all reported incidents, only 3 percent resulted in suspension, and only 2 percent in expulsion. Id. at 187. These 2015–16 data strongly refute male respondents’ claims that Title IX investigations prior to the Trump administration’s 2020 Title IX regulations were “anti-male.” And they are consistent with the findings of the himpathy/hysteria study, where Title IX staff expressed that the best outcomes were no findings and no punishment of male respondents. Are these the so-called kangaroo courts we’ve been fearmongered about?
There is also the deceptive argument that Title IX protections for survivors must be weakened to protect Black men and boys from unfair discipline. As an initial matter, claims of racially disparate discipline in Title IX investigations are not supported by actual data. For example, while Black boys in K–12 schools are 3.5 times more likely than white boys to receive an out-of-school suspension for any misconduct (18.0 percent versus 5.2 percent), there is no significant racial disparity for sex-based misconduct (0.3 percent versus 0.2 percent). Gov’t Accountability Off., GAO-18-258, K–12 Education: Discipline Disparities for Black Students, Boys, and Students with Disabilities 71, 88–89 (2018).
Similarly, in higher education, there is a commonly cited, yet misleading, study claiming that Black respondents are more likely than white respondents to sue their schools alleging unfair treatment in a Title IX proceeding. Save Our Sons, BLACK STUDENTS Four Times as Likely to Allege Rights Violations in Title IX Proceedings (July 18, 2020). The problem is that 70 percent of the respondents’ races in that study are unknown. Title IX for All, Plaintiff Demographics in Accused Student Lawsuits (July 6, 2020). No serious person can draw any conclusions from such a dataset.
In any event, the proper way to address race discrimination in schools is by bolstering anti–race discrimination laws like Title VI—not by weakening anti–sex discrimination laws like Title IX. After all, rolling back Title IX protections would disproportionately hurt Black survivors of all genders—Black women, girls, and nonbinary people, who are already more likely to be assaulted and punished due to misogynoir; as well as Black men and boys, who are already seen as less credible victims due to debasing racist stereotypes about Black male hypersexuality. We must reject the dangerous fallacy that upholding gender and racial justice is a zero-sum game—a fallacy that wholly erases girls and women of color.
The reality is that men and boys of all identities are far more likely to be victims of sex-based harm than to be punished or falsely accused. As I mentioned earlier, seven percent of college men—1 in 15—have been sexually assaulted since enrolling. Campus Climate Survey, supra, at A7-27. In contrast, the vast majority of harassers are never reported, only five percent of reported harassers are disciplined, and the estimated rate of false accusations is 0.5 percent. No Evidence of “Weaponized Title IX”, supra, at 187; Too Hard to Report, supra, at 1335. Let me say this: If I have a son, I will be far more concerned about him being a sexual harmer or a victim before I ever worry about him being falsely accused.
Title IX Investigations Today Are Profoundly Unfair to Complainants
Since 2020, the Trump administration’s Title IX rule has significantly weakened protections for student survivors and subjected them to uniquely unfair and traumatizing investigation procedures that are not required for any other type of student misconduct. Elizabeth Tang, Nat’l Women’s L. Ctr., The New Title IX Rule Is Dangerous for All Students. That’s Why We’re Suing Betsy DeVos (Again). (May 7, 2020). The rule singled out and weakened sex-based harassment standards after decades of Department of Education policy requiring schools to address sex-, race-, and disability-based harassment under equitable and uniform standards. See Dep’t of Educ., Off. for Civ. Rts., Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010); Dep’t of Educ., Off. for Civ. Rts., Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 66 Fed. Reg. 5512 (issued Jan. 19, 2001; rescinded Aug. 26, 2020); Dep’t of Educ., Off. for Civ. Rts., Dear Colleague Letter: Prohibited Disability Harassment (July 25, 2000); Dep’t of Educ., Off. for Civ. Rts., Racial Incidents and Harassment Against Students, 59 Fed. Reg. 11,448 (Mar. 10, 1994).
As a result, students, including children, today have fewer protections from sex-based harassment than adults in the workplace. Here’s what the current process looks like:
If you are a student survivor, the Trump rule requires your school to dismiss your complaint if:
- You were harassed in the wrong place, such as outside of a school activity or outside of the United States—even if you continue to see your harasser at school every day.
- You haven’t suffered enough by the Trump standard—e.g., if you suffered “severe” or “pervasive” harassment but not “severe” and “pervasive” harassment.
- You’re no longer trying to participate in school by the time you file a complaint (e.g., you graduated, transferred, or dropped out due to the harassment)—even if your harasser is still there.
- You were harassed based on your sexual orientation or gender identity, but your school claims that protecting LGBTQI+ students violates its religious tenets.
Katherine Knott, Education Dept. Affirms Exemption for Baylor from Protecting Gay Students from Harassment, Inside Higher Ed (Aug. 11, 2023) (religious exemptions); Nat’l Women’s L. Ctr., DeVos’s New Title IX Sexual Harassment Rule, Explained 1–3 (2020) [hereinafter DeVos’s Rule Explained].
Suppose you clear all of those hurdles, and an investigation begins, but then your abuser graduates or transfers to another school, or they retire or resign after their decades of serial sexual abuse comes to light. Well, the Trump rule says your school can now dismiss your complaint. DeVos’s Rule Explained, supra, at 3.
Suppose you are lucky enough to dodge all of these dismissals. The Trump rule requires you to submit to uniquely unfair procedures that are not required of any other type of victim. These double standards rely on and perpetuate the false and toxic myth that reports of sex-based harassment—made primarily by women and girls—are uniquely unreliable. To illustrate, let’s say you were punched by your romantic partner, whereas your roommate, in a separate incident, was punched by another classmate in a fistfight:
- Your school must presume that your abuser did not punch you until the end of the investigation. Your school isn’t required to presume anything in your roommate’s investigation. (Remember, the “presumption of innocence” is a criminal requirement, and Title IX is not a criminal law.)
- If you’re a college or graduate student, you must submit to cross-examination by your abuser’s advisor at a live hearing, which will likely be an invasive, traumatizing, and victimblaming interrogation. Your roommate doesn’t have to be cross-examined.
- Your school can require you to prove you were punched under the clear and convincing evidence standard (i.e., “highly and substantially more likely than not”). But your school only requires your roommate to prove they were punched under a preponderance of the evidence standard (i.e., “more likely than not”).
Id. at 3–5.
You could face further cruelties during your investigation. For instance, your hearing panel could ask you why you were alone with your abuser and say it must have been because you were “too stupid to know better.” Cost of Reporting, supra, at 13. Your Title IX coordinator could refuse to move your hearing date to accommodate your key witness “because they had already ordered the catering”—even though you later find no food at your hearing. Id. Your Title IX office could fail to warn you that all evidence you submit to the school will be shared with your assailant so that you unknowingly share with your assailant nude photographs depicting bruises and hematoma on your body, causing you great anguish and retraumatization. Id. at 13–14. You could even be a senior in college, still waiting for the results of your investigation despite filing a complaint 3+ years ago, during your first semester of college. Id. at 14.
The list goes on. If you had known all this at the start, would you even have filed a Title IX complaint?
Cross-Examination Is Not Necessary in Title IX Investigations—In Fact, It Reduces Accuracy
I want to return for a moment to the myth—currently codified in the Trump Title IX rule—that cross-examination is necessary in Title IX investigations at institutions of higher education. First, six of eight federal appellate courts to decide the issue have held that adversarial cross-examination is not required to satisfy due process or fundamental fairness in campus disciplinary proceedings, and that a neutral hearing officer or panel may question the parties instead. We Must Amend Title IX, supra, at 992 n.306. The California Supreme Court held the same just last year. Boermeester v. Carry, 15 Cal. 5th 72, 79–80, cert. denied, 144 S. Ct. 497 (2023).
There’s no logical reason why campus investigations are being singled out for mandating cross-examination. Even the Trump Title IX rule recognizes that written questions submitted by students or oral questions asked by a neutral school official are fair and lawful ways to discern the truth in K–12 schools. 34 C.F.R. § 106.45(b)(6)(ii) (eff. Aug. 14, 2020). I have yet to hear a cogent explanation for why these processes—deemed utterly fair for 17- and 18-year-old students in high school—somehow become extraordinarily unfair when applied to 17- and 18-year-old students in college. Nor has anyone explained why live hearings and cross-examination of students are necessary in schools when such a process is rarely—if ever—required of employees in workplace investigations.
Furthermore, studies show that cross-examination actually reduces accuracy in witness statements. A growing body of research shows that adults give significantly less accurate responses to leading questions, compound or complex questions, rapid-fire questions, closed (yes-no) questions, double-negative questions, and questions that jump around from topic to topic—all of which are hallmarks of cross-examination. Emily Henderson, Bigger Fish to Fry: Should the Reform of Cross-Examination Be Expanded Beyond Vulnerable Witnesses, 19 Int’l J. Evid. & Proof 83, 84–85 (2015), (collecting studies).
In particular, traumatic memories are vulnerable to misleading, suggestive, and confrontational questioning, causing researchers to conclude that “cross-examination is not the legal system’s fail-safe corrective influence.” Daisy A. Segovia, Deryn Strange & Melanie K. T. Takarangi, Trauma Memories on Trial: Is Cross-Examination a Safeguard Against Distorted Analogue Traumatic Memories?, 25 Memory 95, 103 (2017). These detrimental effects are further magnified in school investigations (including but not limited to Title IX investigations), where misleading, confusing, and abusive tactics are not legally prohibited. While the right to cross-examination remains a critical right of defendants in criminal proceedings given the immense deprivations of liberty (or life) at stake, the balance of interests does not weigh in favor of a right to cross-examination in school disciplinary proceedings.
For these reasons, over 200 civil rights organizations have opposed requiring cross-examination in Title IX investigations, including racial justice advocates like NAACP and Lawyers’ Committee for Civil Rights Under Law, disability justice advocates like Autistic Self Advocacy Network and National Association of Councils on Developmental Disabilities, and gender justice advocates like GLSEN and Planned Parenthood. Letter from 189 Survivor Advoc., Gender Just. & Other Civ. Rts. Orgs. to Dep’t of Educ. at 7, 14–18 (Sept. 12, 2022); Letter from the Leadership Conf. on Civ. & Hum. Rts. to Dep’t of Educ. (Jan. 30, 2019).
They are joined by the American Psychological Association and nearly 300 mental health and trauma specialists, who explain that cross-examination in school settings needlessly traumatizes victims, tends to exacerbate post-traumatic stress, and likely leads to less probative information for decision-makers. Letter from 290 Mental Health Pros. & Trauma Specialists to Dep’t of Educ. 7 (June 11, 2021); Letter from Am. Psych. Ass’n to Dep’t of Educ. 4 (Jan. 30, 2019).
Numerous educators agree, including the American Council on Education, Association of American Universities, and Association for Student Conduct Administration. Letter from Am. Council on Educ. to Dep’t of Educ. 10–13 (Jan. 30, 2019); Letter from ACPA—Coll. Student Educators Int’l, Ass’n for Student Conduct Admin., Ass’n of Coll. & Univ. Hous. Officers—Int’l, NASPA—Student Aff. Admin. in Higher Educ. & NIRSA: Leaders in Collegiate Recreation to Dep’t of Educ. 12 (Jan. 24, 2019); Letter from Ass’n of Am. Univ. to Dep’t of Educ. 6–7 (Jan. 24, 2019.
The Preponderance Standard Is the Only Fair Standard for Title IX Investigations
I also want to quash the myth that using the preponderance of the evidence standard in Title IX investigations is “unfair.” As we know, Title IX is a civil rights law, not a criminal law. Civil rights proceedings and criminal proceedings serve different purposes, have different stakes, and therefore apply different evidentiary standards. In a criminal prosecution, the purpose is to punish. The defendant’s very liberty (or life) is at stake, and there is an immense power differential between the state and the defendant. That is why the state must prove criminal charges beyond a reasonable doubt.
In contrast, Title IX’s purpose is to protect students’ equal access to education. The two parties have equal stakes in the outcome—their ability to participate in school. That is why the preponderance standard is appropriate—it is the only evidentiary standard that treats both sides equally and properly balances both parties’ interests.
I’ve seen a bizarre claim that the preponderance standard is the “lowest legal standard of proof.” KaiserDillon, The New York Times and BuzzFeed News Quote Justin Dillon on the New Title IX Guidelines (Sept. 22, 2017). But every lawyer knows that’s not true. In fact, the preponderance standard is the evidentiary standard used in nearly all civil proceedings. Cornell L. Sch., Legal Info. Inst., Burden of Proof (last visited Feb. 29, 2024). It’s even used in all “erroneous outcome” lawsuits brought by disciplined Title IX respondents against their schools, seeking to vacate their school’s Title IX decision. Why should Title IX complainants be subjected to a more burdensome standard? The only answer is sex discrimination—the toxic belief that girls and women tend to lie about sex-based harassment.
But since sexual assault is a crime, shouldn’t Title IX investigations of sexual assault nevertheless require criminal standards? Absolutely not. Schools already respond every day to other types of student misconduct that also amount to crimes (e.g., physical assault, theft, arson), and we rightfully recognize that criminal standards are inappropriate in those cases.
And, as we saw in the case of O.J. Simpson, a killing can be both a civil violation (wrongful death) and criminal violation (murder). What’s the Difference Between a Civil Judgment and a Criminal Conviction?, Nolo (last visited Feb. 29, 2024). While Simpson was acquitted of murder under the beyond a reasonable doubt standard, he was still found liable for wrongful death under the preponderance standard. Id. Likewise, sexual assault can be both a Title IX violation and a crime. Even if a student is acquitted of criminal sexual assault under the beyond a reasonable doubt standard, they still may be found responsible for a Title IX violation under the preponderance standard.
The clear and convincing evidence standard is also inappropriate in Title IX investigations. The Supreme Court has only required the clear and convincing evidence standard in a handful of civil proceedings, where the litigants are the state and an individual, and profound deprivations of life or liberty are at stake—e.g., deportation, termination of parental rights, involuntary psychiatric commitment, or withdrawal of medical life support. Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261 (1990); Santosky v. Kramer, 455 U.S. 745 (1982); Addington v. Texas, 441 U.S. 418 (1979); Woodby v. INS, 385 U.S. 276 (1966). Title IX proceedings are nothing like these cases.
Moreover, legal scholars have recognized for decades that the preponderance standard maximizes the total number of accurate outcomes, whereas the clear and convincing evidence standard reduces overall accuracy by overwhelmingly inflating the number of false negatives (i.e., investigations where a responsible student is erroneously found not responsible). William Kidder, (En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings, 45 J. Coll. & Univ. L. 1, 9–16 (2020). The preponderance standard avoids these pitfalls and ensures the most accurate and equitable outcomes for all students.
What Do Survivors, Harmers, and All Students Need for True Justice?
Despite the outsized attention they receive, investigations are only a small piece of what Title IX promises and what student survivors—and all students—need to ensure just educational outcomes.
First and foremost, student survivors need full access to a wide range of supportive measures that help them feel safe and learn. See Nat’l Women’s L. Ctr. & Know Your IX, FAQs on Title IX and Supportive Measures for Students in K-12 and Higher Education (2021) [hereinafter Supportive Measures FAQ]. Title IX already requires schools to offer complainants supportive measures—even when there is no investigation, 34 C.F.R. § 106.44(a) (eff. Aug. 14, 2020)—but, in practice, schools often offer weak measures or fail to ensure that they are properly implemented. It cannot be stated enough that supportive measures are the single most important way to materially support survivors.
For example, if a complainant feels unsafe on campus, the school can issue a no-contact order against the respondent and make reasonable schedule changes so that the parties do not share classes, hallway routes, lunch periods or dining halls, buses, dorms, or campus workplaces. Supportive Measures FAQ, supra, at 5–6. If a complainant has difficulty studying or attending class, the school can offer free counseling, excused absences, online or recorded classes, free tutoring, or extra time to submit an assignment or take an exam. Id. at 6–7. And if the harassment has hurt a complainant’s grades, attendance, or enrollment status, the school can adjust their transcript; reimburse tuition for an unfinished class; or preserve the complainant’s eligibility for any activity, leadership position, campus job, or scholarship that has a grade, attendance, or credit requirement. Id. at 7. These are simple measures, and almost all of them have nothing to do with the respondent.
Second, schools must stop punishing student survivors! For example, schools should refrain from disciplining a complainant for making a false statement based solely on a finding of no responsibility; for conduct that occurs during the harassment (e.g., alcohol or drug use, self-defense, consensual sex) or as a result of the harassment (e.g., truancy, “acting out”); or for being targeted by meritless, retaliatory charges (e.g., when a disciplined respondent subsequently alleges that the complainant was the actual harasser). In addition, schools should not require a complainant to leave the school after reporting harassment (e.g., enrolling in an “alternative school”) or enter into a confidentiality agreement to access their Title IX rights.
Third, when requested by the complainant, schools must promptly investigate a Title IX complaint. Even if a concurrent criminal investigation may necessitate a “temporary” Title IX delay, a school cannot wait until the end of a criminal investigation to conduct its own Title IX investigation. 34 C.F.R. § 106.45(b)(1)(v) (eff. Aug. 14, 2020).
Fourth, schools should offer complainants the option of entering a restorative process. A restorative process is a voluntary, nonpunitive process with roots in First Nations, M¯aori, and other Indigenous traditions that brings together a victim and harmer to acknowledge the harm that occurred, center the victim’s needs, and repair the harm caused by the wrongdoer. David Karp & Kaaren Williamsen, NASPA Student Aff. Admins. in Higher Educ., Five Things Student Affairs Administrators Should Know About Restorative Justice and Campus Sexual Harm 5–6 (2020).
To begin a restorative process, the harmer must first voluntarily admit that they caused harm. The victim then decides what actions count as accountability, amends, and changed behavior, and the harmer commits to what they can do. Studies show that well-implemented restorative processes make victims of sex-based harm feel safe and respected and enable harmers to achieve better learning outcomes than through a traditional disciplinary process, meaning they are less likely to repeat the harm. Id. at 10–11. See also Madison Orcutt, Restorative Justice Approaches to the Informal Resolution of Student Sexual Misconduct, 45 J. Coll. & Univ. L. 1, 31-37 (providing samples of agreements between parties, schools, and local prosecutors).
Restorative processes can be extraordinarily powerful. Unlike traditional models of retributive justice, which incentivize harmers to deny all misconduct and even to accuse their victims of defamation, restorative justice makes possible a world where accountability is a more beneficial choice than denial. Shame becomes constructive rather than destructive. A restorative process allows harmers to understand: Your world will not end if you admit you were wrong. You will not be shunned forever. You are not the worst thing you’ve ever done.
To see a real-life example, I encourage you to read or listen to the story of Anwen and Sameer. As a part of his repair plan, Sameer apologized to Anwen, performed a spoken word piece with her about the night of the rape, and wrote an article about it in the university’s magazine with his name on it. Reckonings, A Survivor and Her Perpetrator Find Justice (Dec. 3, 2018). They graduated in 2016 and still FaceTime to this day. Id. It is a remarkable story of healing, accountability, and growth.
Finally, all students deserve policies that prevent sex-based harm. To that end, schools should:
- Provide all students with comprehensive sex education, including lessons on consent and healthy relationships;
- Train all staff on recognizing and responding to harassment;
- Replace all school police, who frequently sexually assault students, with counselors and other nonpolice staff;
- Abolish dress codes, which reinforce the dangerous message that girls are responsible for boys’ behavior;
- Enforce inclusive policies for transgender and nonbinary students to reduce their risk of being sexually abused; and
- Conduct regular school climate surveys among all students and staff.
100 School Districts, supra, at 3–6; see also S. Poverty L. Ctr., Groups Find Police Presence in Schools Contributes to Sexual Violence (Oct. 18, 2023); Diane Ehrensaft & Stephen M. Rosenthal, Sexual Assault Risk and School Facility Restrictions in Gender Minority Youth, 143 Pediatrics e20190554 (2019); Alexandra Brodsky et al., Nat’l Women’s L. Ctr., Dress Coded: Black Girls, Bodies, and Bias in D.C. Schools (2018).
These and other preventative measures are critical to address the root causes of sex-based harm and eliminate the status quo conditions that made harm possible in the first place.
Rape culture and male supremacy tell us that survivors have no value and that harassers and abusers must be protected at all costs:
When a woman says, “This man raped me a long time ago,” we say, “But that was in the past. He can’t change the past.” When a girl says, “This boy raped me last night,” we say, “But his future! We can’t wreck his future.” And there she stands, suspended between his past and his future, with no value of her own.
Simcha Fisher, Between Brock Turner and Brett Kavanaugh, When Do Girls Matter?, in She Said 30 (Eve Wallack ed., 2019).
I reject these false narratives. Survivors of all genders deserve to be believed, supported, and protected by their schools and by the legal system. Survivors who choose to undergo an investigation deserve to be treated fairly, like all other victims of misconduct, and not subjected to blatantly sexist double standards. Victims of sex-based harm deserve the opportunity to choose a process that centers their needs, and harmers deserve the opportunity to choose accountability and growth. All students deserve to go to schools that proactively invest in the prevention of all harms and the dismantling of all oppressive systems.
I know all of these things to be true because I am a Title IX attorney, a survivor, and an abolitionist. I know true justice is possible.
