Title IX & The Civil Rights Approach to Sexual Harassment in Education
Roger Williams University Law Review, Vol. 25, No. 2, 2020
Wayne State University Law School Research Paper No. 2021-85
19 Pages Posted: 21 Jun 2021 Last revised: 3 Aug 2021
Date Written: April 10, 2020
Abstract
This annotated transcript of Professor Nancy Chi Cantalupo's Keynote Address at the Roger Williams University Law Review's November 2019 Symposium: "Adjudicating Sexual Misconduct on Campus: Title IX and Due Process in Uncertain Times" discusses four structural differences between the criminal legal approach and Title IX's civil rights law-based approach to sexual harassment and gender-based violence in education. As a part of this discussion, Professor Cantalupo explains two of the most important structural reasons why Title IX's civil rights approach uses a "preponderance of the evidence" standard of proof, and why the push by then-Secretary of Education, Betsy DeVos, to compel schools to use a quasi-criminal standard of proof constitutes intersectional gender and race discrimination. Such intersectional discrimination is particularly harmful to women students of color because it renders them invisible as victims/survivors, even as the research suggests they experience both more and more severe harassment and violence than white women do. Finally, Professor Cantalupo discusses the Education Department's rescission under DeVos's leadership of protections for students of color's due process rights in discipline matters well documented to discriminate on the basis of race and to feed the "school-to-prison pipeline," demonstrating the discriminatory inconsistencies between this rescission and DeVos's Title IX policies and regulations.
This annotated transcript is referred to as "Attachment 1" in "Comments for Consideration in the Department of Education's Comprehensive Review Implementing Biden E.O. 14021, filed by Nancy Chi Cantalupo." The full comment and copies or links to all six attachments are available at http://ssrn.com/abstract=3870869, and President Biden’s Executive Order 14021 can be found at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-guaranteeing-an-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientation-or-gender-identity/.
Keywords: Title IX, sexual harassment, sexual assault, intersectionality, standard of proof, rape, gender-based violence, violence against women, gender equality, sex discrimination, women’s rights
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