For the Title IX Civil Rights Movement: Congratulations and Cautions
Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L.J. F. 281 (2016)
23 Pages Posted: 23 Jan 2016 Last revised: 22 Feb 2016
Date Written: January 22, 2016
The Yale Law Journal's September 25, 2015 Conversation on Title IX confirmed the existence of a new civil rights movement in our nation and our schools, led by smart, courageous survivors of gender-based violence and joined by multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. Movement leaders have wisely chosen Title IX as their particular banner and organizing point. As a civil rights statute, Title IX guarantees broad rights to an equal education, and although schools' compliance with Title IX and the statute's enforcement still require significant improvements, today's movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements.
But in doing so, the Title IX movement must remain vigilant against pushes to criminalize Title IX. Suggestions that gender-based violence which violates Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX's central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.
This push to criminalize Title IX is evident in three groups of recent state and federal legislative proposals, including efforts
(1) to import criminal due process requirements into campus disciplinary and grievance proceedings,
(2) to mandate that school officials refer all reports of sexual violence, including through the school's Title IX system, to law enforcement, and
(3) to require colleges and universities to adopt "affirmative consent" or so-called "yes means yes" policies. The first two proposals conflict with and dangerously undermine Title IX's equality mandate, but the effect of the third is more equivocal. This Essay considers closely each one of these criminalization efforts and briefly propose two methods of retaining the benefits of affirmative consent policies while minimizing the damage they could do to Title IX rights.
Keywords: Title IX, sex discrimination, gender discrimination, sexual harassment, sexual assault, rape, education, college campus, gender equality, civil rights
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