Sidney E. McCoy
ABSTRACT
Title IX of the Education Amendments of 1972 (Title IX) prohibits educational institutions receiving federal funds from discriminating against persons on the basis of sex. The broad language of Title IX has been interpreted to include sexual misconduct as a form of sex discrimination for the purposes of Title IX. Additionally, federally funded educational institutions have a duty to independently and adequately respond to instances of sexual misconduct, or these institutions will face potential litigation or loss of federal funding.
Newly proposed legislation known as the Safe Campus Act, if passed, would amend the Higher Education Act of 1965 to require institutions of higher education receiving federal assistance to refer any sexual misconduct allegations to law enforcement to perform a full investigation. During this police investigation, an institution of higher education would be forbidden from taking any independent action to investigate or remedy the alleged misconduct. This Comment first examines the statutory language and legislative history of Title IX.
This Comment then examines the Supreme Court decisions and administrative responses interpreting Title IX’s coverage of sexual misconduct. Next, this Comment discusses conservative efforts to roll back progressive campus sexual misconduct reform, including the Safe Campus Act. Finally, this Comment concludes that the Safe Campus Act should not be passed because it conflates the criminality of sexual misconduct with the civil rights and anti-discrimination remedies afforded under Title IX. Instead, institutions of higher education should maintain their duty to independently investigate and adjudicate instances of sexual misconduct in a way that is consistent with Title IX’s statutory scheme, as well as the case law and administrative responses that have interpreted the scope of Title IX.