Title IX and campus relationships

· 10 min read

The single sentence and what was loaded onto it

The text of Title IX is short, general, and silent on sexual misconduct. The expansion of that text into a regulatory edifice covering sexual assault adjudication is a half-century of administrative interpretation, judicial gloss, and political pressure. Each layer of interpretation has been defensible in isolation and indefensible in aggregate. The result is a body of law that no member of Congress voted for in its current form. Reformers across the political spectrum agree that statutory reauthorization is overdue; nobody agrees what reauthorized text should say. The single sentence remains the only thing both sides will sign.

The pendulum of guidance

The decade-long oscillation between Dear Colleague, DeVos, Biden, and whatever comes next has trained universities to treat federal guidance as weather rather than law. Compliance offices maintain two policies in parallel: the one currently in force and the one they expect within eighteen months. Adjudicators rotate through training programs whose content contradicts the previous year's. The instability is not a side effect of the debate; it is the debate, conducted through regulatory whipsaw because Congress will not legislate. The cost falls on the parties to specific cases, whose proceedings are governed by whichever framework happens to be operative on the day they file.

Preponderance versus clear-and-convincing

The standard-of-evidence question—how confident must the adjudicator be that the alleged conduct occurred—has been the headline fight. Preponderance (more likely than not) is the standard in civil litigation. Clear and convincing (substantially more likely than not) is intermediate. The choice matters at the margin of close cases, which are the cases that reach hearings. Defenders of preponderance argue it puts complainants and respondents on equal footing. Defenders of clear-and-convincing argue that the consequences for respondents—expulsion, transcript notation, effective end of a degree path—warrant a higher bar. Both arguments are coherent. The choice is a values choice that the statute does not make.

Cross-examination and its discontents

Cross-examination is the central engine of common-law fact-finding. It is also, as performed in courtrooms, brutal—particularly for complainants in sexual cases. The DeVos rules required live cross-examination through advisors. The Biden rules attempted to soften the requirement. Both designs face the same underlying problem: an undergraduate complainant facing live questioning by an advisor for the respondent is in a situation for which nothing in her life has prepared her, and the quality of the resulting testimony is a function of her courage and articulateness rather than of what happened. Some universities have responded with procedural innovations—written cross, screened cross, trauma-informed questioning—each of which trades one defect for another.

The accused's procedural position

A respondent in a Title IX proceeding has fewer procedural protections than a defendant in criminal court and more consequences than a defendant in most civil cases. He (the respondents are overwhelmingly male) faces an adjudicator who is not a judge, under rules that change yearly, with a record that will follow him. The civil-rights complaint that universities skew against respondents has produced a parallel litigation track: respondents suing universities under Title IX and due process, with growing success. The litigation is not yet large enough to dominate compliance design, but it is large enough that universities now consider it when drafting procedure.

The complainant's experience of the process

A complainant who reports under Title IX enters a process that will take months, expose her to detailed questioning about the encounter, require her to share the campus with the respondent during the proceeding, and produce an outcome she may experience as inadequate regardless of which way it goes. Many complainants who report later describe the process as a second harm. The literature on procedural justice—Tom Tyler's work in particular—suggests that perceived fairness of process matters more than outcome for institutional legitimacy; Title IX processes routinely fail the procedural-justice test for both parties.

The role of the Title IX coordinator

Every covered institution has a Title IX coordinator. The role was created by regulation, has no professional credentialing pathway, and is held by people whose backgrounds range from law to social work to student affairs. The coordinator's day is a stream of impossible decisions made under federal scrutiny. Coordinator turnover is high; the average tenure in the role is under three years. The institutional memory that a stable coordinator could provide—what the office did last time, what worked, what did not—is largely absent. Each new coordinator relearns the same lessons.

The climate-survey evidence

The AAU climate surveys, run in 2015, 2019, and at later intervals, are the largest data source on undergraduate sexual experience. The headline rate—roughly one in four undergraduate women reporting nonconsensual sexual contact—has been stable across waves. The stability matters: a decade of intensified Title IX activity has not visibly moved the underlying rate. This does not prove the activity has been useless; the counterfactual is unknown and the activity may have prevented an unobserved increase. It does suggest that adjudication is not the lever that moves the rate, and that the public-health interventions that might move the rate have not been built at scale.

Greek life and the structural concentration

Sexual misconduct on American campuses is not evenly distributed. It concentrates in particular settings: fraternity parties, athletic team houses, early-fall first-year orientations. The pattern has been documented for decades. Universities that have meaningfully reduced incidents have done so by attacking the settings—delaying fraternity rush, banning hard alcohol at chapter houses, increasing supervision of athletics. These structural moves are politically costlier than procedural reform and empirically more effective. The Title IX office cannot make them; only senior administrators and trustees can, and they often do not.

The faculty-student dimension

Title IX also governs faculty-student romantic and sexual relationships. Most universities now ban these where a supervisory relationship exists; some ban them entirely between faculty and undergraduates. The bans have been politically uncontroversial relative to the student-student adjudication wars, and effective in shifting norms. A generation of faculty who came up assuming dating students was unremarkable has been replaced by a generation who assume it is career-ending. The shift was accomplished through policy rather than persuasion and is a rare unambiguous Title IX win.

Athletics, the original mandate

The original purpose of Title IX—gender equity in athletics—remains a live battleground. The current frontier is the inclusion of transgender athletes, which the 2024 regulations attempted to address and which the courts have largely paused. The athletics fight and the sexual-misconduct fight are nominally about the same statute and substantively unrelated; they share only the regulatory machinery. The fact that the same office adjudicates both is a historical accident that produces real cross-pressure on coordinators and administrators.

What a reauthorized statute might say

A serious reauthorization of Title IX in the sexual-misconduct domain would specify the standard of evidence, the scope of cross-examination, the definition of harassment, the role of advisors, and the relationship to criminal proceedings. It would address the climate-survey evidence directly, requiring universities to publish data and tying federal funding to documented reductions rather than to procedural compliance. It would distinguish adjudication from prevention, fund the latter separately, and stop pretending that the hospital is the public health system. No version of this statute is currently pending.

The legitimacy question

The deeper question is whether universities should be adjudicating sexual misconduct at all. The alternative is the criminal justice system, which is also widely understood to fail in these cases. The status quo is a parallel system that uses lower standards and produces lower stakes, on the theory that some adjudication is better than none. The theory is contested. A serious alternative, occasionally proposed, is a specialized civil tribunal—neither the university nor the criminal court—staffed by trained adjudicators with appropriate procedures. The proposal has no political champion. Universities will continue to do this work because the federal government has told them to, and because nobody else will.

Citations

1. MacKinnon, Catharine A. Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven: Yale University Press, 1979. 2. MacKinnon, Catharine A. Butterfly Politics. Cambridge, MA: Belknap Press of Harvard University Press, 2017. 3. Hill, Anita. Believing: Our Thirty-Year Journey to End Gender Violence. New York: Viking, 2021. 4. Drobac, Jennifer Ann. Sexual Exploitation of Teenagers: Adolescent Development, Discrimination, and Consent Law. Chicago: University of Chicago Press, 2016. 5. Schultz, Vicki. "Reconceptualizing Sexual Harassment, Again." Yale Law Journal Forum 128 (2018): 22–66. 6. Schultz, Vicki. "Reconceptualizing Sexual Harassment." Yale Law Journal 107, no. 6 (1998): 1683–1805. 7. Senn, Charlene Y., et al. "Efficacy of a Sexual Assault Resistance Program for University Women." New England Journal of Medicine 372, no. 24 (2015): 2326–35. 8. Orenstein, Peggy. Girls & Sex: Navigating the Complicated New Landscape. New York: Harper, 2016. 9. Kantor, Jodi, and Megan Twohey. She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement. New York: Penguin Press, 2019. 10. Farrow, Ronan. Catch and Kill: Lies, Spies, and a Conspiracy to Protect Predators. New York: Little, Brown, 2019. 11. Bohns, Vanessa K. You Have More Influence Than You Think. New York: Norton, 2021. 12. Fiske, Susan T. Social Beings: Core Motives in Social Psychology. 4th ed. Hoboken: Wiley, 2018.

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