The Case Against and for “Abolishing Title IX”
Alexandra Brodsky
Online Symposium: Title IX at 50: Learning from the Past and Looking to the Future
103 B.U. L. Rev. Online 19 (2023)
PDF | Back to Symposium
I recently visited a college to give a talk about sexual harassment. Afterward, students told me that the campus had, recently, been the site of protests to “abolish Title IX.” One might have imagined 19-year-old men’s rights activists demanding that Congress repeal Title IX of the Education Amendments of 1972.[1] But the protesters were advocates for survivors. I wondered: did they really want to legalize sex discrimination in education?
The students reassured me that no, they did not. To campus protesters, the students told me, the call to “abolish Title IX” was a criticism of their campus “Title IX office,” tasked with receiving and investigating sexual harassment grievances. Survivors felt unsupported by that office, frustrated that the school could not provide them support and safety without forcing them through a retraumatizing fact-finding gauntlet. And, in their eyes, that office was Title IX. It was the physical manifestation of the legislation. The “Title IX office” needed to be torn down and replaced with a whole new alternative more responsive to survivors’ needs. That was what they meant by “abolishing Title IX.”
My first, lawyerly instinct was that the students were plainly incorrect and simply needed to be educated. Title IX is the primary reason why schools have any responsibility at all to address peer sexual harassment[2]—especially at a private college, like the one I was visiting, with no analogous obligations under the Fourteenth Amendment.[3] When schools mistreat survivors—for example, by failing to provide meaningful supportive services, or permitting the sexual harassment to persist, or refusing to conduct meaningful investigations—they often do so in violation of Title IX.[4] Repealing Title IX and so legalizing sex discrimination in education would devastate survivors, rather than help them. And that is to say nothing of Title IX’s protections for victims of other kinds of sex discrimination, including pregnancy discrimination, anti-LGBTQ discrimination, and sex-specific dress codes.[5]
But, as is usually the case when lawyers condescend to activists, the students were right in a deeper way. In some circumstances Title IX is an obstacle to support for student survivors, and newly so.
In 2020, Donald Trump’s Secretary of Education, Betsy Devos, promulgated new Title IX regulations governing federal funding recipients’ responses to sexual harassment.[6] The massive rule served two primary functions: to limit schools’ responsibilities toward survivors and to make the investigatory process more onerous for victims and more protective of accused harassers.[7] Since the regulations, I have heard from and of students seeking help from their schools who have been turned away by administrators saying the new regulations tie their hands. Sometimes those administrators are wrong, as when they tell students the regulations prohibit schools from addressing off-campus sexual harassment, when in fact the regulations simply relieve schools of their obligation to do so in some (though not all) cases.[8] (Whether these administrators are misinformed or knowingly lying, happy for a Trump-shaped scapegoat, I cannot say.) But sometimes the schools are right that the regulations stop them from doing right by survivors. For example, many college and university students are rightly angry that their school cannot vet their complaints using a reasonable process that looks anything like ordinary student discipline, and must instead put them through the gauntlet of what is essentially a mini criminal trial. But, right now, their schools have no choice.[9]
Over the last five or so years, Title IX has been turned against survivors in another way: through sex discrimination suits filed by male students and professors who have been disciplined for committing sexual harassment.[10] In some circuits, these lawsuits have turned, functionally, into automatic appeals of school disciplinary decisions regarding sexual harassment in a manner that cannot be reconciled with either basic principles of anti-discrimination law[11] or courts’ general deference to school administrators’ decision-making—including in suits brought by survivors.[12] Given the far more demanding liability standards required of student-victims to make out a Title IX claim for money damages,[13] school administrators may reasonably judge that they are far less likely to face liability if they refuse to substantiate reports of sexual harassment—and so risk a lawsuit from a victim but not a respondent—so long as they go through the motions of investigating. And they may act accordingly.[14] In this way, too, Title IX hurts survivors.
To avoid any ambiguity, I should make explicit that, despite all this, I very much do not think we should abolish Title IX. By creating a floor for how schools must address sexual harassment, the law does more good than harm, even if it also creates a ceiling, and I am unwilling to abandon Title IX’s protections against other forms of discrimination. But it is entirely understandable why some students see Title IX as the problem, rather than the solution. That is a real shame because Title IX still can be a useful tool for students, and because Title IX’s ability to withstand waves of backlash depends on student organizing.[15] If students do not see Title IX as something worth fighting for, its power will only continue to diminish.
So, what do we do? I have a very ambitious proposal, a moderately ambitious proposal, and a very modest one. The very ambitious proposal is that we need to make Title IX worthy of students’ trust. That will, at the very least, mean rewriting Title IX regulations to restore proper liability standards and allow schools to use humane investigation procedures. New rules proposed recently by the Department of Education would be a significant improvement.[16] But students cannot rely on administrative enforcement alone, given the Department’s slow investigations and politically variable commitments to survivors’ rights. To restore Title IX to its full power, Congress should remove judicially created obstacles to liability and meaningful remedies.[17] At the very least, Congress should adopt for Title IX a liability standard similar to Title VII’s. Under Title VII, employers are ordinarily vicariously liable for severe or pervasive harassment by supervisors, and may also be liable for their negligence toward worker-on-worker harassment of which they have constructive knowledge.[18] In contrast, under Title IX, a school is only liable if it is deliberately indifferent to severe and pervasive harassment of which it has actual knowledge.[19] Title VII thus requires workplaces to do more to address sexual harassment of adult workers than Title IX currently requires of schools in addressing abuse of literal children.[20]
National policy change is easier said than done, especially given Congress’s paralysis and the likelihood that a Texas district court judge would enjoin President Biden’s Department of Education if it tried to sneeze.[21] So, my moderately ambitious proposal: we need to up our game in educating students about Title IX. In 2013, I helped found Know Your IX, a youth-led group dedicated to spreading the word about Title IX’s protections for student survivors. Then, most students did not know anything about Title IX other than that it had something to do with women’s soccer. When I speak with students today—even high schoolers—I am consistently impressed by how much savvier they are about their legal rights. But, as my recent campus visit demonstrated, there is still work to do to help students understand Title IX’s nuances, and the difference between what a law demands and how it is implemented.
My final, related suggestion is very small, only worth mentioning because we can all immediately effectuate it: We should be careful about what we label as “Title IX.” Anyone who has spent time on a campus recently, or followed news coverage about school sexual harassment, has heard victims’ reports to their schools called “Title IX complaints.” School investigations are referred to as “Title IX processes.” And, as at the college I visited, the collection of administrators charged with conducting these investigations and otherwise addressing sexual harassment are called “Title IX offices”—or, sometimes, just “Title IX.” (As in, “I’m thinking about reporting to Title IX.”)[22]
I am against this in part because it is just wrong. Schools do not enforce Title IX; they are subject to it. When they investigate wrongdoing against students, they enforce their own codes of conduct—which, to comply with Title IX, must include a prohibition on sexual harassment.[23] In this way schools act analogously to workplaces when they receive and address sexual harassment grievance, and no one calls HR the “Title VII office” or a worker’s internal grievance a “Title VII complaint.” The same logic should apply to Title IX.
But my objection is not only a persnickety technical one. I have two substantive concerns. First, talking about students filing “Title IX complaints” to be vetted by a “Title IX process” suggests that schools are engaged in law enforcement, rather than campus discipline. That lends rhetorical support for DeVos’s overly legalistic mini-trials. Second—and more to the point of this article—eliding the difference between the law itself and schools’ compliance mechanisms communicates to students that they are entitled to no more than exactly what their school is already doing. If Title IX is the school’s bureaucracy, its actions and inactions, then Title IX cannot be used to demand change. That elision, then, is a great way to ensure that students never recognize or exercise their rights—that they never know what Title IX actually is, never use Title IX in their advocacy, and never file (or threaten to file) Title IX lawsuits or complaints with the Department of Education.
Better, then, to call school grievance procedures exactly that. “Title IX complaints” are complaints to the Department of Education’s Office for Civil Rights, and a “Title IX investigation” is a federal administrative investigation. “Title IX” is a statute, not an office. And it might still be useful.
[2]See, e.g., Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643-52 (1999) (discussing Title IX liability standard regarding schools’ responsibilities to address peer harassment); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91 (1998) (same, for teacher-on-student harassment).
[3]See, e.g., Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1249-50, 1250 n.7 (10th Cir. 1999) (discussing protections against sexual harassment under the Fourteenth Amendment).
[4]See, e.g., Davis, 526 U.S. at 653-54 (holding student-victim had adequately pleaded that her school violated Title IX in refusing to address ongoing sexual harassment); Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 272 (4th Cir. 2021) (holding jury could find school violated Title IX when it inappropriately trivialized a sexual assault, engaged in a biased investigation, and failed to check on survivor’s wellbeing), cert. denied, No. 21-968 (Nov. 21, 2022); Farmer v. Kan. State Univ., 918 F.3d 1094, 1103, 1106 (10th Cir. 2019) (holding students adequately alleged that school violated Title IX when it refused to address rapes that left students too afraid to participate fully in campus life). I should disclose I am counsel in the Fairfax case cited above and helped write an amicus brief in Farmer.
[5]See, e.g., Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 126-30 (4th Cir. 2022) (holding Title IX prohibits schools from imposing different dress codes on boys and girls), petition for cert. filed, No. 22-238 (Sept. 14, 2022); Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020) (holding Title IX prohibits anti-LGBTQ discrimination), cert. denied, 141 S. Ct. 2878 (2021); Varlesi v. Wayne State Univ., 909 F. Supp.2d 827, 854 (E.D. Mich. 2012) (noting “pregnancy . . . is unquestionably covered as a subset of sex discrimination under Title IX”).
[6]See generally Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026 (May 19, 2020) (codified at various places in 34 C.F.R. pt. 106).
[7]See generally Shiwali Patel, Fulfilling Title IX’s Promise Through the SAFER Act, 103 B.U. L. Rev. Online 25 (2023); Kelly A. Behre, The Irony of Title IX: Exploring How Colleges Implemented Discounted Credibility against Student Protections against Student Victims of Gender-Based Violence by Providing Expanded Procedural Protections to Student Respondents in Campus Misconduct Cases Involving Gender-Based Violence, 103 B.U. L. Rev. Online (forthcoming 2023). See also Alexandra Brodsky, Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash 144-49 (2021).
[9]See 34 C.F.R. § 106.45 (detailing one-size-fits-all sexual harassment investigation and hearing model for colleges and universities).
[10]See generally Dana Bolger, Alexandra Brodsky & Sejal Singh, A Tale of Two Title IXs: Title IX Reverse Discrimination Law and Its Trans-Substantive Implications for Civil Rights, 55 U.C. Davis L. Rev. 743 (2021).
[12]See, e.g., Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999) (citing New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)) (noting the Court’s consistent view that “courts should refrain from second-guessing the disciplinary decisions made by school administrators”). When it comes to sexual harassment, some circuits appear to defer to administrators’ decisions only where the plaintiff is the harassment victim. See, e.g., Bolger et al., supra note 10, at 787, 791-02 (detailing some courts’ differential treatment of suits by victims and respondents).
[13]See Catharine A. MacKinnon, In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education, 125 Yale L.J. 2038, 2063-64 (2016) (discussing high liability standard for Title IX sexual harassment claims brought by victims).
[14]Bolger et al., supra note 10, at 791-802.
[15]See generally Sherry Boshert, 37 Words: Title IX and Fifty Years of Fighting Sex Discrimination (2022).
[16]See generally Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41390 (proposed July 12, 2022) (to be codified at 34 C.F.R. pt. 106).
[17]See MacKinnon, supra note 13, at 2076-2100 (discussing possibility of alternative liability standard). Legislative action should include a fix to Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562, 1576 (2022), which foreclosed emotional distress damages for two Spending Clause statutes, and which courts may apply to Title IX going forward.
[18]Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
[19]Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999).
[20]Fatima Goss Graves, Restoring Effective Protections for Students against Sexual Harassment in Schools: Moving Beyond the Gebser and Davis Standards, 2 Advance 135, 139-43 (2008).
[21]See Marcia Coyle, Texas Accused of Blatant Judge Shopping in Lawsuits Challenging Biden Policies, Law.com (July 14, 2022), https://www.law.com/nationallawjournal/2022/07/14/texas-accused-of-blatant-judge-shopping-in-lawsuits-challenging-biden-policies/ [https://perma.cc/S6Q6-SULG] (explaining how Texas has been able to judge-shop to ensure success in litigation against Biden administration policies).
[22]In my experience, this is more common in institutions of higher education than in K-12 schools, perhaps because so few staff and students within the latter know about Title IX at all, and plenty of K-12 schools still lack any kind of meaningful sexual harassment grievance process at all.
[23]See, e.g., Alexander v. Yale Univ., 631 F.2d 178, 185 (2d Cir. 1980) (noting that schools are required to provide a grievance procedure for sexual harassment).