Jul
16
Title IX & a Silsbee Cheerleader
Tags: Constituional Law, Title IX
Filed Under Uncategorized | By
There’s been plenty of noise about last month’s decision by the Supreme Court not to hear the appeal of a Silsbee, Texas high school cheerleader who was kicked off her squad for refusing to cheer for her rapist. Probably because it was a First Amendment case, almost none of the noise has been about the important federal laws that can protect student survivors. Sexual violence in schools and on campus is usually strange and mysterious territory for survivors, advocates, and lawyers alike. That’s why it’s so important to take this opportunity to talk about Title IX.
For most people, Title IX calls to mind gender equality in sports, like a school having an equal number of sports teams for boys and girls. But Title IX can mean much more than that, especially when it comes to sexual violence. I want to offer some thoughts on what Title IX—and other civil legal remedies—can and should mean for those of us serving crime victims in Texas. First, though, here is a brief explanation of what Title IX is.
Title IX Explained
Similar to other civil rights laws that prohibit sex discrimination in the workplace and in housing, Title IX prohibits sex discrimination in the educational setting. Among other things, that means a school can be held legally responsible when it knows about and ignores sexual harassment or sexual assault in programs that it has control over.
According to the Supreme Court in the 1999 landmark case Davis v. Monroe County Board of Education, the bottom line with Title IX is that any form of sexual harassment or violence can constitute sex discrimination if it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Thus, if a school is “deliberately indifferent” to known sexual harassment, the school can be considered to have discriminated against the victim on the basis of sex.
Such a broad definition means that schools can even be liable if an assault was student-on-student, not just when school employees perpetrate the violence. For example, some colleges have paid damages for failing to prevent athletic recruits from sexually assaulting other students, where the schools were aware of prior complaints about the recruits’ sexually harassing behavior. Moreover, according to a letter issued in April 2011 by the U.S. Department of Education Office for Civil Rights (available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf), even a “single or isolated incident” can constitute unlawful discrimination under Title IX.
What does this mean for us?
Setting aside the legal nuances, what does all this mean for those of us who aren’t litigating Title IX cases—the advocates, educators, and law enforcement personnel among us? I think it means a couple things. First, we need to make sure we’re well-informed about the legal remedies available to the people we serve, beyond the standard criminal justice responses. And second, we must put that information to use both when we consult with survivors and in our relationships with community partners, like schools.
If we, as victim service providers, are not familiar with the civil laws that can benefit our clients, then how will our clients find out about them? Certainly, most of us can’t advise survivors on the legal merits of a Title IX lawsuit. But many of us are uniquely positioned to learn the details of a survivor’s situation and assess whether talking to a lawyer might be worthwhile.
And that means equipping ourselves with knowledge ahead of time. That applies to Title IX, but also to the many laws protecting survivors’ rights in employment, housing, immigration proceedings, and more.
Many of us work hard to build partnerships with agencies and institutions in our communities. Education about laws like Title IX is a crucial part of that: according to law professor Wendy Murphy, in the early stages of a Title IX suit against Harvard University, even Harvard’s legal team advised the university president that Title IX has nothing whatsoever to do with sexual assault.
Partnering with local sexual violence programs and rape crisis centers to develop response policies and prevention curricula is a good way for schools to comply with federal law. Unfortunately, many schools shy away from robust sexual violence policies, failing to appreciate their potential liability under Title IX.
A Teachable Moment in Silsbee
It’s very possible that Title IX could provide a remedy for the student from Silsbee. Others, including Professor Murphy, have offered analysis elsewhere, and I won’t rehash the subject here. However, I do want to this blog post to emphasize the significance of the Title IX remedy in the context of our work as advocates.
To be sure, the school’s response to the sexual assault and to the perpetrator’s conviction was unacceptable. But perhaps just as disturbing has been the school’s course of action following the lawsuit: eliminating its sexual assault education program and silencing conversations about sexual violence in school. Beyond the insensitivity to the survivor, the school seems ambivalent—if not indifferent—to the fact that such a permissive attitude toward sexual violence will do nothing to protect its students from more assaults in the future. That sort of patterned decisionmaking—especially if maintained—seems to teeter dangerously close to exactly what federal law prohibits.
The Silsbee case, tragic as it is, presents an opportunity for the victim services field to reach out to our partners in education and advocate for tough and appropriate policies to respond to sexual assault. Indeed, that’s not just the right thing to do. It’s what federal civil rights law requires.
Chris Kaiser is TAASA’s staff attorney. He provides training for advocates and assistance to survivors on a range of civil legal remedies. Check TAASA’s event calendar at taasa.org to find upcoming free online trainings, or contact Chris at ckaiser@taasa.org.
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3 Responses to “Title IX & a Silsbee Cheerleader”
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Chris, thanks for the post and you’re absolutely right the Silsbee case is tragic. I cant believe that they would kick her off the squad!
Great post – thanks for the information about Title IX. It is a shame that the school has continued to respond in an insensitive way, and has not seized this opportunity to educate more students, instead of shutting down their education on sexual violence.
Why isn’t the rapist kicked off the team and prosecuted? Typical double stamdard.