A Better Balance: Providing Survivors of Sexual Violence with "Effective Protection" against Sex Discrimination through Title IX Complaints

By Peterson, Alyssa; Ortiz, Olivia | The Yale Law Journal, May 2016 | Go to article overview

A Better Balance: Providing Survivors of Sexual Violence with "Effective Protection" against Sex Discrimination through Title IX Complaints


Peterson, Alyssa, Ortiz, Olivia, The Yale Law Journal


FEATURE CONTENTS  INTRODUCTION   I. WHILE OCR HAS IMPROVED ITS RESPONSES TO SYSTEMIC INEQUITIES,     INDIVIDUAL COMPLAINANTS FACE DELAYS  II. STRIKING A BETTER BALANCE BETWEEN COMBATING STRUCTURAL     DISCRIMINATION AND ENSURING EDUCATIONAL ACCESS FOR     COMPLAINANTS     A. OCR's Duty To Provide "Effective Protection"     B. Increasing Compliance Through Intermediate Fining Authority     C. Implementing Affirmative Steps To Decrease the Length of        Investigations     D. Increasing Effective Communication with Complainants     E. Acting Proactively To Protect Complainants' Access to Education  CONCLUSION 

INTRODUCTION

Despite Title IX's prohibition against discrimination based on sex, (1) many survivors of gender-based violence receive little to no support from their college or university after experiencing violence. (2) In response, an increasing number of survivors are filing Title IX complaints with the U.S. Department of Education's Office for Civil Rights (OCR). (3) After they file these complaints, most survivors must wait years--sometimes even until after they graduate or withdraw from the institution--to get redress.

While OCR has dramatically improved its efforts to reform structural Title IX compliance across universities, (4) and despite OCR criticizing schools for affording insufficient protections to victims alleging violations, (5) it has done relatively little to promote complainants' immediate access to education. In its pursuit of structural compliance, OCR requires institutions to create or improve systems, procedures, or offices involved in the handling of gender violence complaints. (6Examples of such efforts include requiring a university to establish a task force on sexual violence or to provide additional training to its staff.) (7) While these systemic reforms do ultimately benefit individual students, (8) OCR's decision to resolve both structural and more individualized issues (such as a complainant's lack of access to accommodations, their unreimbursed educational expenses incurred due to discrimination, or retaliation they experience) within the same voluntary resolution agreements has created unnecessary tension between the need to thoroughly investigate broad-based systemic issues (9) and an individual's interest in seeing her (10) complaint resolved in a timely manner. (11)

We argue that OCR's current approach of prioritizing systemic concerns over individual interests is contrary to the dual purpose of Title IX. As the Supreme Court explained in Cannon v. University of Chicago, Title IX (which is patterned after Title VI) (12) has two statutory aims: to "avoid the use of federal resources to support discriminatory practices" in education programs, and "to provide individual citizens effective protection against those practices." (13) OCR's current approach focuses disproportionately on achieving the former at the expense of the latter. However, the current tension is not insurmountable: OCR can strike a better balance between systemic reform and providing "effective protection" (14) to individual complainants.

We recommend that OCR take affirmative steps to reduce investigation delays by capping investigations at two years and hiring specialized gender-based violence investigators. Additionally, OCR should reform its communications with complainants by standardizing outreach and providing regular updates. Most importantly, OCR should not wait until the end of investigations to provide relief to individual complainants. To support its recommendations, this Feature contains selections from interviews with individuals who have filed Title IX complaints with a variety of OCR regional offices. (15)

I. WHILE OCR HAS IMPROVED ITS RESPONSES TO SYSTEMIC INEQUITIES, INDIVIDUAL COMPLAINANTS FACE DELAYS

In its pursuit of systemic reforms, OCR has struggled to prioritize the task of securing timely relief for individual complainants. …

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