Know Your IX

Know Your IX is a campaign that aims to educate every college student in the U.S. about his or her rights under Title IX by the start of the Fall 2013 academic term. Armed with information, survivors will be able to advocate for themselves during their schools’ grievance proceedings and, if Title IX guarantees are not respected, to file a complaint against their colleges with the Department of Education’s Office for Civil Rights. When colleges are confronted with their students’ knowledge and thirst for justice, they will be forced to take proactive steps to end sexual violence, ensuring every student a safe educational environment.



Sexual Assault Policy and the Urgency of Now

Sixteen students from Yale University lodged a complaint with the United States Office of Civil Rights. “Inadequate response to a long trend of public sexual harassment” bred an environment hostile to the campus’ women—a campus that is not very different in history or experience from our own. The U.S. government could determine this to be a violation of Title IX, the legislation that states, “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.” The stakes for Yale University were high. Not only was their reputation on the line, but worse for them, they could lose the majority of their federal funding.

In the wake of this nationally reported lawsuit, the Office of Civil Rights sent out a “Dear Colleague” letter to universities around the nation, reminding them of their responsibility to create a safe environment for learning for all students—female and male. The explicit re-delineation of expectations by the government would mean trouble for these schools if they were caught slacking: Title IX federal funding could be revoked.

“Sexual activity requires consent, which is defined as clear, unambiguous, and voluntary agreement between the participants to engage in specific sexual activity. Consent cannot be inferred from the absence of a “no”; a clear “yes,” verbal or otherwise, is necessary.” This is the revision by Yale. This is a necessary revision that was made as late as April of last year.  This is the revision that had to be pre-empted by the threat of legal governmental action to be implemented. This is the sexual assault policy that finally leaves no room to give perpetrators the “benefit of the doubt.”

Contrast this: “Rape includes any act of sexual intercourse that takes place against a person’s will or that is accompanied by physical coercion or the threat of bodily injury. Unwillingness may be expressed verbally or physically.” This definition of rape, in all its negative connotations, is the definition provided in the Harvard College Faculty of Arts and Sciences Policy Statement on Rape, Sexual Assault, and Other Sexual Misconduct. This is the definition for the school where only seven sexual assault cases have been presented to the Ad Board in the past five years, while an average of one hundred and twenty-five have officially been recorded. This is the definition that most often leads the Administrative Board towards a “take no action” ruling because of the specificities of its language.

Harvard self-affirms its own sexual assault policies

from the Harvard Crimson

A Harvard administrator said the University does not intend to alter its sexual assault policies in response to Yale’s recent settlement over a complaint that alleged that Yale’s sexual misconduct grievance procedures violated Title IX.

In an agreement with the Department of Education’s Office for Civil Rights, Yale agreed to uphold its recent policy changes—including its adoption of the lower “preponderance of the evidence” standard, which requires the university to be at least 51 percent certain of an alleged perpetrator’s guilt before issuing a guilty verdict. The previous policy required a “clear preponderance of the evidence,” a more stringent burden of proof.

“We don’t have any plans to make changes but we are still looking at our policy and our practices,” Secretary of the Administrative Board John “Jay” L. Ellison wrote in an email. “Yale’s situation was different than ours but we can learn from them.”

Currently, Harvard employs different standards of evidence among its various schools. The Law School uses the more stringent “burden of proof” standard–which requires about 80 percent proof for a guilty verdict–while the Faculty of Arts and Sciences requires that the Administrative Board be “sufficiently persuaded” of an accused student’s responsibility for an alleged incident.

For the past two years, Harvard has been in the process of conducting an internal review of its sexual assault grievance procedures to ensure that it is compliant with the guidelines set forth in a “Dear Colleague” letter, which was released in April 2011 by the OCR.

Harvard Law School is also currently under investigation by the OCR for alleged violations of Title IX in its sexual misconduct grievance procedures. A spokesperson for the OCR said that federal officials do not have a timetable in place for resolving the complaint.

Yale’s settlement with the OCR was announced on June 15 after a fifteen-month investigation. The OCR’s probe of Yale was launched after 16 Yale students and alumni filed a complaint in March 2011 alleging that Yale had not responded “in a prompt and equitable” manner to correct a sexually hostile campus environment. The complaint came just months after a video of a group of Delta Kappa Epsilon fraternity members chanting “No means yes! Yes means anal!” during a pledge event on Yale’s Old Campus made national headlines.

During the OCR’s investigation, Yale moved to update its procedures, establishing the University Wide Committee on Sexual Misconduct last July—which was already in motion before the complaint—and naming a campus Title IX coordinator last November.

Although the OCR did not find Yale guilty of noncompliance with Title IX, Yale’s settlement stipulated that the University report to the OCR until the end of May 2014.

Wendy Murphy, the lawyer who filed the complaint against Harvard Law School in 2010, said she thinks that the OCR would be inconsistent if it did not require Harvard to make the same changes that Yale agreed to as part of its settlement agreement.

Murphy pointed to three changes made by Yale in advance of the settlement—its adoption of the “preponderance of the evidence” standard, its new standard for prompt resolution of complaints, and its new requirement to lay out clear timeframes about the duration of an investigation—as issues that are being explored in the investigation of Harvard Law School that is currently underway.

“It may not be mandatory binding legal precedent on all schools to have something happen to Yale, but it matters and schools should pay attention because it’s the writing on the wall,” said Murphy, who is a professor at the New England School of Law.

Still, Murphy said, the OCR’s hesitance to universally enforce mandates delivered in individual cases may allow Harvard to maintain its existing policies, at least for some time.

“OCR has never been clear that there’s real force in the rulings against other schools,” Murphy said. “Most schools—I’ll put Harvard in that list—think that they’re not necessarily required to abide by a ruling if it comes down against another school.”

This past spring, several of Harvard’s peer institutions—including the University of Pennsylvania and Cornell—made changes to their sexual assault policies that also sparked speculation that Harvard may be persuaded to follow suit.