The Legal Editorial Board’s histrionic call for amendment of Title IX and repeal of the Office for Civil Rights (OCR) 2011 Guidance on school response to sexual misconduct is ill-informed. Its position in “2011 Update to Title IX: The Pendulum Has Swung Too Far,” published June 16 in The Legal, shows an inexplicable disregard for a significant body of law on the investigation and adjudication of violations of school policy that existed long before the 2011 guidance. It also conflates civil school disciplinary proceedings under Title IX with criminal proceedings, minimizes the historical mistreatment of victims by schools, and perpetuates the disproven myth that victims routinely make false rape accusations (“crying wolf”).
The Legal’s Editorial Board cannot seem to come to grips with sexual assault as a civil rights violation. It sees it only as a crime. Rape and other forms of sexual misconduct are in fact violations of both criminal and civil law, most notably civil rights laws relating to employment and education. Under Title IX, which prohibits sex discrimination in educational institutions that receive federal funds, sexual assault is considered sex discrimination. When put on notice, educational institutions must promptly respond to eliminate the discriminatory conduct and safeguard the right of students to an education free from sex-based discrimination and violence.
