Please note that the information on this website, including the information below is not intended to represent the beliefs of anybody associated with A Thousand Cuts. This additional information and these additional resources are only intended to supplement the topics covered in A Thousand Cuts. These supplemental materials have been created by third parties to provide further context about the issues addressed in the game. Jennifer Ann's Group, Life Love Publishing, and others working on their behalf are solely responsible for the information and views presented!
Title IX: Background, Evolution, and Highlights
A Thousand Cuts: Early Edition examines Title IX as it generally was followed by many schools in 2018. Because of the way that Title IX has evolved over time, the process in this game is not the same process as that of 2008 or, presumably, of 2028. As we write this in 2021, the current process for schools under Title IX are guided by regulations published by the Office for Civil Rights, Department of Education on May 19, 2020 and which went into effect August 14, 2020. Those regulations vary from those in effect in 2018. In the coming years, the DoE will release new regulations, which will change how schools are required to respond. Many of the schools impacted by these constant changes are large organizations. Although some schools adopt new regulations by the required date, others - due to legislative uncertainty and bureaucratic sluggishness are more slow to adapt.
What this means is that each school's response to every phrase, every stipulation, and every amendment of Title IX regulations is unique. In fact, there are so many variables that no one student's passage through the Title IX system is ever the same as another student's, even if they're at the same school.
Although this game is representational of student experiences it is not intended to be a comprehensive guide reflecting the experiences for all students at all schools.
Title IX: History
Title IX Foundation: The Education Amendments of 1972
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance.”
– Title IX, Education Amendments of 1972
What we refer to as "Title IX" is a single section, Title IX, of "the Education Amendments of 1972." (Public Law No. 92-318, 86 Stat. 235) These amendments were intended to regulate education programs or activities. The federal government made these requirements necessary for educational institutions that depend on federal financial assistance, like federal student aid.
Although the Education Amendments of 1972 include provisions for special education, school busing, and student financial aid, we're focusing on its prohibition of sexual discrimination.
In 1974-75 Title IX was most commonly used to stomp out gender discrimination in school athletics programs. By July 21, 1975, Title IX regulations specified that athletics programs had to provide equal treatment "on the basis of sex" at colleges, high schools, and elementary schools.
On October 29, 2002, following the death of Patsy Takemoto Mink, the first woman of color elected to the U.S. House of Representatives and a co-author of the Title IX amendment, Title IX is officially renamed the “Patsy T. Mink Equal Opportunity in Education Act” in her honor.
The 'Dear Colleague' Letters
In 2011, the Department of Education issued a "Dear Colleague Letter" that rocked the higher education world. According to the letter, all students, not just student athletes, could call on Title IX protections against sexual harassment, including sexual violence. The rationale for this protection is that sexual harassment is sex discrimination. It limits equal treatment "on the basis of sex" to the extent that harassment "creates a hostile environment."
The letter explained that schools needed proactive sexual assault prevention efforts as well as formal reporting processes that students coudl use to get help. Maybe most importantly, the letter said that schools' Title IX investigations should use a 'preponderance of evidence' standard rather than a 'beyond a reasonable doubt' standard.
Preponderance of evidence: the accused is found guilty if the fact-finder decides they are more likely than not to have committed the offense in question. This is the standard used in civil law cases.
Beyond a reasonable doubt: the accused is found guilty only if the fact-finder decides that no reasonable person would consider the accused innocent. This is the standard used in criminal law cases.
In 2015, another "Dear Colleague Letter" reminded schools that if they received federal money, had to hire a Title IX coordinator. These coordinators are responsible for telling students (including those who report sexual assault, witnesses, and the accused) about their legal rights. They also make sure that educational institutions are aware of their legal obligations.
In 2016 the Departments of Education and Justice issued guidance regarding protection of transgender students under Title IX. This "Dear Colleague Letter" explained that schools must "help ensure that trangender students enjoy a supportive and nondiscriminatory school environment" (emphasis added).
Title IX: The Pendulum Swings Back(wards)
If you click on the links above for the "Dear Colleague Letters," you will see the following disclaimer:
Rescinded: This document has been formally rescinded by the Department and remains available on the web for historical purposes only.
That is because the Department of Education, under Secretary of Education Betsy DeVos, withdrew all three "Dear Colleague Letters" between 2017 and 2020. The letter protecting transgender students was withdrawn first, on February 22, 2017. This came less than one year after that particular "Dear Colleague Letter" came out in the first place.
Although it is helpful to be able to read prior documents in order to better understand the history of Title IX, the fact that the "Dear Colleague Letters", intended to provide guidance to institutions, were rescinded is a problem for multiple reasons. One, by rescinding this previous guidance, schools become less certain as to how they should perform their jobs regarding the protection of students. Two, it has been argued that these guidelines were rescinded without following the Administrative Procedure Act because there was no notice-and-comment period. If required Administrative provisions were not followed then schools will become less confident about how quickly they should react to future guidance. This then impacts how future guidance from the Department of Education will be perceived generally. Worse, future guidance regarding Title IX's applicability to prevention of future harms and protection of those already harmed might not be acted upon as required.
Unfortunately, while DeVos was Secretary of Education the Department of Education engaged in its own arguably "unconscionable" behavior, undoing many of the protections and processes afforded to students under Title IX. In addition to the rescission of protection for transgender students the DOE also withdrew the 2011 guidance protecting all students.
And in August 2020 the DOE continued to damage processes and policies designed to provide students with equal access to education, to prevent future inequities, and to provide justice to those who have already been harmed. The August 2020 changes to Title IX Protocols included "significant changes to grievance procedures and requires live hearings in all formal complaints of sexual harassment at Post-Secondary Institutions." The Summary of Major Provisions of the Department of Education's Title IX Final Rule runs nine pages.
Understanding these changes and their impact is difficult even if one has a strong understanding of due process, IPV (intimate partner violence), and consent. These are complex, intertwined issues and not easy to navigate even for those with the requisite background. The result is that, under the August 2020, "Final Rule" that Title IX was likely to be implemented in different ways from one school to the next based on differing interpretations of these revisions.
Title IX 2021: Clarifying Rules and Correcting Harms
Soon after President Biden's election, his administration reinstated some of the original intentions behind Title IX's support to provide equal treatment "on the basis of sex". On January 20, 2021 President Biden released Executive Order 13988 which states, among other things, that "[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation."
On March 8, 2021 President Biden released Executive Order 14021 which states, among other things, that Title IX is the governing law which guarantees all students "an educational environment free from discrimination on the basis of sex, including ... sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity ..."
These latest interpretations of Title IX have been welcomed by those who believe that everybody should be allowed equal access in the pursuit of an education. Further, these changes are important to those who care about violence prevention and victim's rights.
However, these changes also highlight how uncomfortably fluid these protections are for such fundamental human rights. The right to learn - to live - in an environment free from sexual assault and harassment is a foundational concept that should remain stable. We are hopeful that in the future the abrupt changes to Title IX during the period of 2017-2020 will be seen as aberrations. Schools, students, and those responsible for enforcing Title IX deserve better. Our hope, as a nonprofit organization focused on violence prevention, is that we will see schools focus on the prevention of future violence as they continue to support those who have already been victimized.