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Leveling the Playing Field

Laura DunnLaura DunnSigned into law by then-President Richard Nixon on June 23, 1972, Title IX would serve as protection from discrimination for women in higher ed. “No 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 has remained a mainstay in higher ed for 50 years but has evolved from courts interpreting it to cover sexual harassment and sexual violence to changes made by the Obama and Trump administrations as to what is required of schools under the law to protect students from sexual misconduct.

“We’ve made some great progress,” says Kimberly J. Robinson, Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia. “And we still have a ways to travel to get to equality under Title IX. We’ve made great progress in the sense that we came from a time where girls and women were either shut out of education or really discouraged from pursuing a variety of fields and were encouraged to pursue homemaking or something such as ... administrative assistants.”

There remain important strides to make in many areas, according to Robinson.

“One is women in STEM [science, technology, engineering, and mathematics],” explains Robinson. “Women are still significantly underrepresented in careers in STEM and are underrepresented at that educational level, too, in colleges and graduate programs.”

Pew Research Center research from 2021 showed that, among those ages 25 and older, women are now more likely than men to have a four-year college degree — 39% of women and 37% of men in 2021 compared to 8% of women and 14% of men in the 1970s.

“The original purpose of Title IX was to eliminate barriers to education for women and girls, and that was remarkably successful,” says Dr. R. Shep Melnick, Thomas P. O’Neill, Jr. Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education. 

“Before the act was passed, there were more men than women in virtually every level of higher education, from college to grad school to professional schools,” says Melnick. “Now there are more women than men in almost every level of higher education. Women get more bachelor’s degrees, master’s degrees, Ph.D.s, and even Ph.D.s in the natural sciences.” 

According to Pew, women are 50% of those employed in STEM jobs, slightly higher than their share in the overall workforce, 47%. However, the number of women in the various STEM professions remains uneven. Women are a large majority of those in health-related jobs, but remain underrepresented in other STEM fields.

Of bachelor’s degrees earned by women from 1970 to 2013, 18% were earned in computing and 19% were in engineering, according to a 2015 report from the American Association of University Women (AAUW).

Combating sexual misconduct

Sexual misconduct remains an embattled topic under Title IX, with the Obama administration issuing guidance to schools and the Trump administration later rescinding that guidance and putting regulations in place.

Among other controversial changes to Title IX policies, the U.S. Education Department (ED), under former Secretary of Education Betsy Devos, issued 2020 regulations that narrowed the definition of sexual harassment, requiring acts to be “severe, pervasive, and objectively offensive” conduct based on sex in order to count as sexual harassment.

Laura L. Dunn, founding partner of L.L. Dunn Law Firm PLLC, says Obama-era guidance kept schools more accountable. Dunn says the guidance explicitly articulated that sexual assaults, despite being crimes, were also civil rights violations to be addressed as sexual harassment, so schools could not defer or leave the matters to local law enforcement.

In contrast to this Obama-era approach, Dunn says, the Trump administration was more prescriptive. “And it articulated very clear requirements for what reports could be taken and also what reports could not,” explains Dunn. “It mandatorily dismissed certain reports, gave permissive dismissal. It created barriers for complainants.

“So, if you waited until you graduated to make a complaint because your thesis adviser, who holds your degree in their hand, is the assailant, some people would wait to file,” Dunn continues. “The current Title IX regulations don’t allow that, and actually require it to be dismissed.”

Dunn adds that “a lot of these regulations were not in favor of ending sexual violence, were not supportive of victims, were not making the process easier. It actually was creating more hurdles and barriers above and beyond what is reasonable due process.”

Dunn further explains in an email how Trump-era regulations went beyond due process:

“Case law is clear that the minimal standards of due process established for campus-level hearings are: 1.) notice and 2.) an opportunity to be heard, so literally every requirement in the regulations beyond that is beyond the established due process standard,” stated Dunn.

The Biden administration marked the 50th anniversary of Title IX by releasing its proposed Title IX changes, which would not go into effect immediately. Some Trump-era rules are staying in place, such as ordering schools to presume accused students are innocent until the conclusion of a grievance process. The proposed rules also will not reinstate a requirement that Title IX cases be resolved within 60 days — a policy removed by the Trump administration — but instead would keep the vaguer Trump-era language of requiring that cases be completed in a reasonable amount of time.

The proposed rule changes include removing the requirement for live hearings in sexual misconduct cases and the requirement for cross-examination in hearings. Schools would be allowed to investigate and punish assaults that occur off-campus and investigate and sanction sexual misconduct without a formal complaint.

“Instead of focusing protections on those accused of sexual misconduct, the new proposed regulations re-center back to students being denied equal access to education due to sex or gender-based discrimination, harassment, and violence,” Dunn stated in an email. “I am particularly thrilled to see that the cross-reference to the Clery Act remains to improve compliance in stalking, intimate partner violence, and sexual assault cases.”

Dunn disagrees with ED’s propositions to allow investigators to decide the outcome of Title IX cases.

“I agree with current regulations prohibiting investigators from making decisions on cases,” Dunn stated in an email. “As a victim rights attorney, I favor having adjudicators separate from investigators to ensure investigations remain objective. I know this proposed framework is helpful for schools with limited resources, but I do not believe it produces reliable results in practice.”

Dunn also disagrees with how the new rules would allow schools to use the clear and convincing evidence standard of proof — a higher standard than the preponderance of the evidence standard — to determine if a student violated sexual misconduct rules if the clear and convincing evidence standard is also used by the school in other discrimination cases. She called preponderance of the evidence “the only equitable standard.”

Impact on LGBT community

The rights of transgender people are also a disputed matter.

In 2017, the Trump administration rescinded Obama-era guidance and protections for trans people in a 2016 Dear Colleague letter that directed public schools to allow trans students to use bathrooms and locker rooms aligning with their chosen gender identity. In 2021, ED announced that trans students were covered under Title IX. And the latest proposed new regulations would formally establish that Title IX’s sex discrimination rules apply to sexual orientation and gender identity. Such regulations would give landmark protections to transgender students.

“Our proposed changes would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone, and make clear those protections include discrimination based on sexual orientation and gender identity,” stated Dr. Miguel Cardona, U.S. secretary of education, according to an NBC report.

Ann OlivariusAnn OlivariusAbortion rights may also be part of Title IX discussions,  according to Dr. Ann Olivarius, a feminist lawyer at law firm McAllister Olivarius and one of the plaintiffs in the 1977 Title IX case Alexander v. Yale (the first sexual harassment case under Title IX). In June, the U.S. Supreme Court struck down the 1973 landmark abortion decision in Roe v. Wade.

“We’ve already had women’s sports people say: ‘Hey, we’re in Oklahoma, this is where we practice. And if you can’t get an abortion legally in Oklahoma, that’s not giving us a fair right to our education,'" says Olivarius. "So, they’re already organizing on that. They’ve got a pretty interesting argument, but it certainly fits in intellectually with a lot of the other arguments and the evolution of arguments under Title IX.”

Dunn reiterates that education is a factor in ensuring equal access to employment, to life, liberty, and pursuit of happiness that the U.S. promises. "It’s such a gateway to equal opportunity that it has to be safeguarded,” she says.

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