There has been a good deal of discussion about Title IX recently. This guest post explains just what Title IX is and how the law impacts the current BYU policy.
In shorthand, Title IX means that universities must have a program for reporting sexual assaults. [It is much, much more, but that is the part of the law that is at issue in the news right now]. Title IX also prohibits retaliation.
There is significant information publicly disseminated through http://knowyourix.org/
Retaliation occurs when a school intimidates, threatens, coerces, or in any way discriminates against an individual who has brought a concern or reported a possible violation of a federal civil right. This includes formal or informal reports of a violation and reports regarding a violation of your own rights or the rights of others.
If you report a possible sexual assault, then you are automatically protected against retaliation. This is true regardless of the merits of the underlying claim — meaning even if the initial concern or report does not result in a finding that a civil right was violated, you still cannot be retaliated against. This is to ensure that individuals feel free to assert their federal civil rights and do not suffer adverse consequences for being whistleblowers.
Under Title IX, only the school’s conduct toward the recipient party qualifies as retaliation. This includes conduct by anyone acting on the school’s behalf, such as the administration, faculty, or other employees. That means that if you are being harassed, intimidated, or threatened by other parties — such as other students — it does not qualify as retaliation. However, it may be the basis of another Title IX complaint.
All Title IX reports automatically cause an Honor Code Violation Investigation to be made of the person reporting the sexual assault.
To quote the BYU Spokesperson [quote in a newspaper story about the issue]:
Jenkins said that because the Title IX investigators use a filing system developed by the Honor Code Office, an Honor Code file may be opened immediately, even if the investigation does not begin until later.
The issue is not whether the report discloses any honor code violations, or whether or not there is a delay in the investigation, but that all Title IX investigations trigger an honor code file on the person who is reporting the assault.
The News Spin and the Facts
The news and many bloggers have reported the policy as retaliation. The school has taken the position that they are investigating not the assault but other information that may come up in the course of the investigation. Thus they are not retaliating for the report, but they are investigating, not only for disclosed violations, but also for potential violations — and keeping files open if the rapist, who is being prosecuted — decides not to talk with them.
The BYU Position
- It has a published notice of non-discrimination.
- It has a Title IX Coordinator.
- It has a clear grievance policy and procedure.
- Employees are trained to address sexual violence with zero tolerance.
- It responds promptly.
- It has reporting options.
- It has an appropriate standard of evidence.
- It has an equitable Title IX procedure.
- It does not retaliate for the fact that someone was assaulted or claims to have been assaulted.
- Honor code investigations are completely separate from the Title IX matters.
You can compare the BYU approach to the guidelines in the “Dear Colleague” letter sent out by the Assistant Secretary in the Office of Civil Rights.
There are three issues. The first issue is whether the policy is retaliation. Retaliation occurs if:
- Your school then subjected you to adverse action, treatment or conditions; and
- There is a causal connection between the protected activity and the retaliation.
If an honor code investigation counts as adverse action, treatment or conditions, then it is retaliation. If it counts only as investigation then it is not retaliation as long as any impact comes from things other than the Title IX complaints.
Note that automatically creating an honor code investigation file in response to a Title IX complaint is extremely problematic.
The second issue is whether the policy creates a hostile environment. That is, does the fact that an honor code investigation will automatically occur create an environment hostile to reporting.
The Yale Law Journal in February of 2016 published an excellent argument that ties in the concepts of retaliation and hostile environment in the context of the current issues and the issue of mandatory reporting to law enforcement (which in analysis is a good stand in for mandatory reporting to the honor code enforcement). This is the so-called Mandatory Referral issue as a source of a hostile environment.
The third issue is whether the policy enables rapists. While not under Title IX, the current bottom line is that if a rape occurs after curfew or after getting someone to use drugs or alcohol, a report will result in the reporting party being disciplined for the related honor code violation. As a result, a rapist who is concerned about prosecution or investigation will protect themselves by drawing the rape out so that it occurs in part after curfew or in the presence of drugs or alcohol.
This leads to under reporting and to those who report being punished in addition to the harm caused by the rape (though not because of the rape).
There is also the issue of access to records. Family Education Rights and Privacy Act (FERPA) [20 USC 1232g and 34 CFR 99] requires access, but with limits (for more, read this material on why a school cannot withhold copies, but is not required to provide official transcripts). Some people report not being allowed to have copies of records that appear to fall within FERPA (but which may be privileged as to ongoing investigations).
What is next (and what should BYU do)?
That is a good question. The justice department has begun an investigation. BYU has responded to the firestorm of news in pretty much typical fashion. Attorneys are getting involved (all sides are “lawyering up” as it is called), but the issues and responses are still evolving.
Since this is a blog post, rather than a legal journal or opinion paper, I understand that instead of giving conclusions or predictions here, I should ask the readers to provide their own. Please use the comments to do so.