Did you know that for the 2021–2022 academic year, more than 17,000 Title IX complaints have been filed with the U.S. Department of Education? That’s a tremendous number, isn’t it? It tells you just how important it is but also shows you cracks in the system.
Title IX is a powerful legislation meant to protect students from discriminations based on sex, but it is not perfect as a Title IX lawyer can explain:
So, what’s the problem?
What Is Title IX, Anyway?
Title IX was passed in 1972 to finally end sex-based discrimination in schools receiving federal funding. And while it was originally focused on equal opportunities in education and sports, but over the years, it’s been applied to issues like sexual harassment and assault. Sounds great, right? It is, but like most things, it’s not perfect.
Now, let’s talk about where it falls short.
- Uneven Enforcement Across Schools
To us, one of the biggest problems with Title IX is that it is not enforced the same way across all schools. That is, what may work in one school could be different from how it is handled at another. Kind of frustrating, right?
- Some Schools Have More Resources Than Others
As our friends at K Altman Law can explain, the thing here is: some schools just throw more money around their Title IX program. They’ve got full-time coordinators, lawyers, and support staff. Other schools might have just a single person who does the cases on an altogether part-time basis.
- Lack Of Consistent Oversight
You’d think that with this many complaints, the federal government would be all over getting the schools in line, right? Well, not exactly. The Office for Civil Rights is supposed to regulate all of this, but with tens of thousands of cases, there isn’t a hope of them keeping any scope on each school. This means some schools are never going to feel the pressure put upon them to enforce Title IX as tightly as they need to.
Title IX’s Giant Challenge With Sexual Harassment And Assault
1. The Definition Of Harassment Is Too Narrow
The definition of sexual harassment under Title IX has been a moving target. In recent years, the bar was set high — only behavior that is “severe, pervasive, and objectively offensive” counts. So, what does that mean for students? It means that if the harassment they face doesn’t hit all those marks, it might not even be investigated.
Think about all the subtle, insidious ways harassment happens, many of those would fall through the cracks.
2. Investigations Can Be A Nightmare
Filing a Title IX violation is not a walk in the park. It’s long and anxiety-ridden and can be traumatic to the victim. Think of going through a bad experience and then being made to go through it time and again in an investigation.
3. Schools Are Not Always Held Accountable
Another thing: even if a school does mess up a case, it doesn’t necessarily have to pony up real consequences. Sure, the government can urge corrective actions, but schools can usually avoid punishment by settling with the OCR.
4. LGBTQ+ Students: Left In The Cold?
Let’s turn to another group that Title IX hasn’t served particularly well: LGBTQ+ students. On paper, all of the above cover everyone from Title IX protections against sex-based discrimination. The new rules hopefully will close this gap.
Practically speaking, though, the law didn’t mention gender identity or sexual orientation for years, and it still doesn’t offer uniformly good protections today.
5. Protections For Transgender Students Aren’t Complete
While a 2020 Supreme Court ruling declared that Title IX should protect transgender students, not all schools are overjoyed to comply. Some refuse to let trans students use bathroom facilities that correspond to their gender or take part in the right sports.
In some states, lawmakers are literally rolling those protections back. But in practice, the rights of transgender students are a great challenge even though the law is on their side.
Sexual Orientation is Still a Gray Area
The position is not much improved for gay students who become victims of discrimination against their sexual orientations. Although the government is adapting better protection to institutes for LGBTQ+ students, harassment and unequal treatments remain rampant.
The sad truth is that most schools do not respond favorably, and even more depressing is that some LGBTQ+ students feel they are fighting a losing battle just to gain a fair deal.
6. Religious Schools Can Opt Out
Did you know that there’s a loophole under Title IX that gives religious schools an exemption? They claim that compliance with Title IX would violate their religious freedoms.
So, a religious institution could end up having far fewer rights for its LGBTQ+ students than a public school would for a similar peer. This leaves certain students vulnerable to discrimination with no further recourse or assistance under Title IX.
7. Retaliation And Reporting Is Not That Simple
Although a few students have the guts to make that complaint, the road isn’t so easy. For one, fear of retaliation is very much an issue. And you would think that when you have Title IX, that this should somehow be taken care of, but oh no-it’s more complicated than that.
8. Fear Of Retaliation Keeps Students Quiet
Many don’t report Title IX violations because they are afraid of what will come next. Will their friends turn against them? Will the consequences impact their grade? Will the administration manage to sweep it all under the rug?
Such fears are very real, although Title IX technically shields students against retaliation. It doesn’t always play out that way, though. Retaliation can be subtle-do imagine a professor treating a student differently, or a peer group shutting them out. These are, therefore, very hard to prove and make it that much more difficult for victims to feel safe reporting.
9. Marginalized Groups Face Even Bigger Hurdles
Existing barriers to reporting for students already part of marginalized groups, such as students of color, LGBTQ+ students, and students with disabilities, include those related to reporting: many of these students do not feel that their violations will be taken seriously; others fear that reporting a violation will lead to victimization under more marginalization.
Title IX has turned the game around about gender equity in education; however, it is far from perfect. Its uneven application, less protection for LGBTQ+ students, and the barriers to reporting are but a few examples of many places where the law fell short. However, if your student is facing issues at school, you should contact a lawyer near you for help.