Loyola University Chicago School of Law, JD 2023
Where Title IX offices exist, controversy follows. While certain students attending four year higher education institutions (HEIs) may feel empowered or supported by their Title IX offices, in my experience, many more feel mistrust, pain, and neglect. In my time as a student at three different HEIs, I was constantly surrounded by women and queer people in pain. Sometimes, this pain came in the form of a friend stating they did not want to engage with the Title IX office because they wholeheartedly believed nothing substantive would come of reporting. Other times, the pain came in the form of large groups of students making it known that they felt betrayed by their school’s Title IX office, unsupported and ill-equipped to advocate for themselves and their friends.
A recent article in the Loyola Phoenix, pointedly entitled, ‘It Just Wasn’t Enough’: Loyola Student Opens Up About ‘Draining’, “Discouraging’ Sexual Assault Investigation, named only some of the many critiques students have of Title IX offices. The voices of these students are valid. Change can, should, and must be made. Any response which does not acknowledge these two realities ignores the pain so many young people are clearly feeling. Refusal to diligently, and in good faith, work on improving protections for survivors throughout HEI campuses is a failure, in every sense of the term.
There is no excuse, but there are explanations
There is no excuse for HEIs who fail their student-survivors. This reality can be true in tandem with the actuality that Title IX compliance work is difficult even in the best of circumstances. Even when a Title IX office is filled with well-intended student-survivor oriented actors, working within the confines of Title IX to support student survivors is challenging for a plethora of reasons, some of which are explored below.
- Depending on who is writing them, regulations can be inherently anti-survivor
Our current Title IX regulations are a prime example of this issue. In keeping with the Trump Administration’s commitment to anti-women and anti-queer policies, Title IX regulations, as they are now, were crafted to bolster the rights of respondents and harm survivors. In a world where Title IX offices have no choice but to follow the law as it’s written, this is a huge barrier to survivors feeling safe and supported.
- Title IX regulations constantly change
Depending on the political climate and changes in presidential administrations, Title IX regulations often change within only a few years of the last regulations being finalized. This is a major challenge for schools. First, Title IX office administrators need to actually understand the new Title IX regulations in order to apply them to current procedure. This is no small feat; regulations are typically hundreds of pages of single-spaced text, covering a massive amount of information. Moreover, as lengthy as they are, they are still, at their core, regulations. Aside from the occasional comment as to how a school may act in compliance with a new regulation, specifics regarding how to, or how to best, implement the new requirements are rarely provided.
- Application of Title IX regulations to Illinois HEI’s Title IX policies and procedures are not standardized
There is no Model Penal Code equivalent for Title IX regulations. Moreover, there is no one non-profit or government agency in Illinois which provides concrete guidance for best, survivor-oriented, practices in the implementation of changing Title IX policies and procedures. Moreover, while the Illinois state law, Preventing Sexual Violence in Higher Education Act (PSVHEA), is meant to codify Obama-era survivor-oriented Title IX regulations, in practice, PSVHEA simply has not resulted in standardized Title IX complaint processes within Illinois HEIs. Complaint processes remain extremely varied both between different HEIs and between individual cases within the same Title IX office at many HEIs.
Essentially, HEIs are left to evaluate hundreds of pages of dense information relative to what is likely extremely school-specific policies and procedures. Policies and procedures which may be trauma informed, but could also simply be a vestige of whatever Title IX complaint procedure was first written. In summary, even with the most well-intended individual actors, there is no clear and effective way for Title IX offices to routinely check if they are following best practices.
- Concern (or lack thereof) of agency oversight
It seems to me that, except for a massive and truly abhorrent oversight on the part of schools, there is no significant looming fear amongst Illinois HEI’s that a government agency, such as the Office of Civil Rights (OCR) or the Illinois Attorney General, will take any kind of action against them for outdated policies or sporadic and unstandardized practices. What is plainly evident is that any incentive driven by agency oversight to implement, to the extent possible within the confines of current law, student-survivor oriented policies, simply does not exist.
A quick review of Illinois HEIs current cross-examination policies reveal this clear lack of motivation to keep up with current law, even when changes help to protect student-survivors. Of the more than fifteen Illinois HEI’s cross-examination policies I have reviewed as of March 31, only one school has updated their cross-examination regulations to reflect current, and more student-survivor centered, law.
What is now eight-month-old OCR guidance made clear that a decision-maker at a HEI may consider outside information submitted by a survivor-complainant during the Title IX grievance process, even if the survivor-complainant refuses to submit to cross-examination. Yet, almost every HEI in Illinois (including Loyola), still has confusing policies which say things like advisors of each party “will” have the opportunity to cross-examine other parties. Even worse, some policies, once again Loyola included, have language which emphasize that panelists may assign limited or no weight to statements if a party does not submit to cross examination.
These policies span from being blatantly incorrect to extremely misleading, and the problem is, in most cases, despite OCR guidance being from August of 2021, Illinois HEI’s simply have not updated their cross-examination policies. In other cases, even if they have been updated, confusing and ambiguous language reveals that Title IX offices did not take the most student-survivor oriented approach when re-writing their regulations. If they had, policies would be clear enough for the average college student to understand that (1) cross examination is not required, and is optional for parties to participate in, and (2) opting out of cross-examination does not have an impact on the final determination of responsibility/outcome. Yet almost no policies actually look this way.
No doubt, with little encouragement or incentive from regulatory agencies to update policies or take student-survivor oriented approaches where they can, getting buy-in from administrators is extremely difficult. In a sea of administrators who are primarily concerned with the prospect of exposing their HEIs to lawsuits from well-resourced respondents, without agency oversight, implementation of survivor-oriented policies is an uphill battle for even the most well-intentioned Title IX offices and actors.
To be clear, my point in emphasizing these challenges is not to suggest that we should not hold individual school-side Title IX actors and offices accountable. Of course, we should. The fact that many HEIs, including Loyola, have not updated their cross-examination policy to be legally accurate and student-survivor oriented is deeply troubling. That being said, in my view, if, as a society, we ever want to honestly address the pain students feel, we must start by acknowledging all of the ways the system is failing student-survivors and all of the actors and agencies who both contribute to this failure and have the capacity to help fix it.