Somewhat buried amid the recent news, the Supreme Court recently blocked one of the main avenues to justice and healing for student victims of sexual assault.
It’s not the first time the court has eviscerated remedies related to Title IX. Previous adverse decisions in the law’s 50-year history — and how civil rights advocates worked to overcome them in the past — suggest what might happen next.
Title IX was part of an upswell in feminist legislation during the women’s movement in the 1960s-1970s. Its earliest versions would have amended Title VI of the Civil Rights Act to outlaw sex discrimination, in addition to that of race, color and national origin, in broad sectors of society. Instead, it became a separate bill prohibiting sex discrimination only in federally funded education. Title IX copied the first 37 words of Title VI, setting a pattern for future laws using the same wording against age and disability discrimination.
Women who were excluded from graduate education programs or denied jobs in academia propelled adoption of Title IX, but the first of many attacks on the law came from men’s athletic directors panicking at the thought of sharing resources with women’s teams.
The challenge that stuck claimed that Title IX applied only to specific departments or programs that directly receive federal funding, and not to the whole school. This claim would have exempted most athletic programs from Title IX’s requirements that girls and women get an equal chance to play sports, supported by equitable resources like uniforms or travel reimbursements if the boys and men got them.
Despite evidence in the Congressional Record showing that this reasoning contradicted Congress’s intent in passing the law, a case called Grove City College v Bell argued against Title IX on appeals all the way to the Supreme Court. The Reagan administration only halfheartedly defended the law; it aimed to curtail civil rights enforcement by slashing the budgets of the Office for Civil Rights and similar agencies. In response to Grove, in 1984, the Supreme Court endorsed a much more limited application of Title IX.
Several colleges cut women’s teams. The Office for Civil Rights closed or restricted at least 65 Title IX investigations focused mainly on athletics inequities or the mishandling of complaints about sexual harassment and assault, which lower courts had ruled could be sex discrimination. It put a sexual harassment complaint at Northeastern University on hold, for instance, because the harassment happened in the Economics Department in Lake Hall, which hadn’t been built or renovated with federal funds.
Grove City College affected more than Title IX. Because it and the other civil rights laws copied the first 37 words of Title VI, the ruling eviscerated all those laws in education. Discrimination based on sex, race, color, national origin, disability or age became legal again in much of education.
To get back on track, a grand coalition of civil rights advocates for women, racial and ethnic minorities, the disabled and the aged pushed for four years for Congress to pass the Civil Rights Restoration Act in 1988, overriding President Ronald Reagan’s veto. The act specified that civil rights laws apply to all parts of education, not just parts of it depending on funding. That wasn’t controversial in the House of Representatives, but conservative senators held up the legislation until they won wording saying student health clinics could not be compelled to offer abortion services.
Once the Civil Rights Restoration Act passed, women resumed filing complaints about unfair treatment in athletics and elsewhere in education, exposing an epidemic of sexual harassment and assault. The legal battles that followed built on strengthened terrain as a result of this legislation.
Consider the 1992 Supreme Court decision in Franklin v Gwinnett County Public Schools that first gave plaintiffs the right to monetary awards in Title IX lawsuits. A high school teacher harassed a sophomore student, asking about her sex life and forcing kisses on her in the parking lot. He pulled her out of class one day, took her to a private office and raped her. He raped her at least two more times after that. The girl told her mother, who told school and district officials. They pressured the family to keep quiet.
The parents sued the district, demanding something that was then unusual under Title IX: $11 million to compensate for the girl’s suffering. Before Franklin, the most a plaintiff could expect was a court order for the school to do better, and only if the plaintiff was still in school. After appeals by the district, the Supreme Court ruled unanimously that courts could order monetary awards under Title IX for harm done.
But subsequent Supreme Court decisions in the late 1990s set higher bars for proving sex discrimination in education than in employment. In 1998, in Gebser v Lago Vista Independent School District, the Supreme Court reiterated what it had ruled in Franklin — people who sued under Title IX for sexual harassment could win financial awards. But Gebser set two hard-to-meet criteria. A school official with the authority to do something about it had to have “actual knowledge” of the discrimination and had to have deliberately failed to respond appropriately. These requirements made it far more difficult for people to bring successful Title IX complaints. Administrators could argue, for instance, that any minimal effort to help a student victim was sufficient, because at least they tried.
In 1999, the court added another exceptionally high bar in Davis v Monroe County Board of Education. Instead of defining sexual harassment as conduct severe or pervasive enough to create an objectively hostile environment, as is used in workplace lawsuits, in education, the conduct has to be severe, pervasive and objectively offensive — all three — plus deprive the student of educational opportunities.
These bars were considered so high that some lawyers even stopped taking Title IX sexual harassment cases after Gebser and Davis. Title IX advocates have yet to create a fix for these decisions.
The situation is even more dire now that Cummings has blocked another path to justice. In a dissenting opinion, Justice Stephen G. Breyer wrote, “The court’s decision today allows victims of discrimination to recover damages only if they can prove that they have suffered economic harm, even though the primary harm inflicted by discrimination is rarely economic.”
Scientific studies report higher rates of significant depression, anxiety and poor sleep in survivors of sexual assault. They’re more likely to develop chronic stress-related or central nervous system problems, including headaches, back pain, appetite loss, abdominal pain and digestive problems. Studies by psychologists have shown additive harm in sexual assault survivors who also feel betrayed by people or institutions that were supposed to help them. The mental and emotional scars can last a lifetime.
Already, some legal experts are suggesting that a legislative fix may be possible for the Cummings ruling. Congress could amend civil rights laws to allow damage awards for emotional distress. But moving Congress to act in the current environment could be tricky.
Students have signaled an unwillingness to accept the status quo under Gebser and Davis. They have turned to the Office for Civil Rights and the court of public opinion for help combating sexual harassment and assault. They sparked an intense movement on campuses in recent decades that fed the #MeToo movement and shows no signs of stopping.
Whether they and civil rights advocates can bring about legislative remedies for Cummings and restore robust protections under Title IX remains to be seen. But one thing seems clear: This latest Supreme Court ruling on Title IX is not the end of the story.
