Resisting Rulemaking: Challenging the Montana Settlement's Title IX Sexual Harassment Blueprint

Article excerpt

"Sexual assault and sexual harassment are intolerable; they undermine women's basic rights and, when perpetrated against students, can negatively impact their ability to learn and continue their education. As we approach the 40th anniversary of Title IX this year (2012), incidents of sexual assault on our college campuses remind us of the continuing critical importance of the law to reduce barriers in education. Our goal is to determine whether there are violations of federal law and if we find a problem, work cooperatively with [universities] to ensure that all students ... feel safe in their communities, regardless of sex.

--Thomas E. Perez, Assistant Attorney General for the Civil Rights Division

"Let me say this respectfully and with as much clarity as I can: you do not know my work. You do not know what I face every day in responding to a student culture of alcohol-infused hook-ups, where regrettable sex is a daily occurrence.... [The administrator's] voice has been missing from this debate ... [No university wants the Office of Civil Rights] knocking on our doors, Title IX complaint in hand, ready to put [our university] under the microscope...." (2)

--Anonymous Student Affairs Professional

INTRODUCTION

Every university and college across the nation--with the exception of three (3)--accepts federal financial assistance. Consequently, in the world of higher education, the impact of administrative regulation and compliance that accompanies federal funding cannot be overstated. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs or activities operated by recipients of federal financial assistance. (4) The text of Title IX states that "[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." (5) Since its enactment in 1972, Title IX most often has been associated with bolstering the participation of female students in athletics. (6) Title IX has generally been associated with the athletic arena, although the statute does not expressly address athletics. (7)

Until relatively recently, however, Title IX's application to sexual harassment was less well known. A superficial reading of the text does not immediately evidence inclusion of claims of sexual violence on college campuses. In fact, nothing in Title IX's legislative history indicates congressional intent to reach claims of sexual misconduct at all. (8) The idea that Title IX covers sexual misconduct took root years after the passage of the statute. Nonetheless, the legal proposition that sexual harassment can constitute discrimination on the basis of sex under Tide IX is now well settled, as the Supreme Court, in Gebser v. Lago Vista Independent School District, noted explicitly that "sexual harassment can constitute discrimination on the basis of sex under Tide IX." (9) Moreover, it is clear that Title IX also requires schools and colleges to protect students from sexual misconduct, sexual harassment, and sexual violence, and to take seriously all reports of sexual harassment. (10)

It is with this background that we arrive at the current Title IX landscape. The evolution of sexual harassment standards in the law and in Title IX compliance has had an immense impact on higher education. The Department of Education (DOE) is authorized and directed to carry into effect Title IX's nondiscrimination mandate by issuing rules and regulations consistent with achieving the statute's objectives. (11) The DOE delegates to the Office for Civil Rights (OCR) responsibility for enforcing Title IX and ensuring that institutions receiving federal funding comply with Title IX. (12) But the DOE and OCR have not published rules or regulations in the area of sexual harassment. Instead, OCR has issued guidance and "Dear Colleague" letters (DCLs). …