As a battle over Title IX looms in Washington D.C, Yale may once again be forced to take a stance on Title IX. Though in the past Yale has embraced government mandates, their next decision may not align with new government regulation.

“The system established by the prior administration has failed too many students,” Betsy DeVos told a crowded auditorium at the Antonin Scalia Law School at George Mason University Law School. It was September of 2017, and DeVos was making her first major address since being appointed Secretary of Education. DeVos was speaking at the law school to address her main agenda item for her tenure as Secretary of Education: Title IX regulations.

The “system” DeVos spoke of is the collection of campus Title IX policies pioneered under the Obama administration. Her tone clearly demonstrated her disdain for the former administration’s policies. DeVos detailed how the government has burdened schools with “increasingly elaborate and confusing guidelines,” guidelines which she remarks, “even lawyers find difficult to understand and navigate.” There must be a better system, DeVos contended. She voiced that every victim of sexual misconduct “be taken seriously,” and that every accused student must understand guilt “is not predetermined.” At the end of the night, DeVos formally indicated that the Department of Education would rescind Obama-era Title IX policies, in favor of the new administration’s regulations.

Across the country, university officials waited, anticipating what the new policies would look like and how they would affect their campuses.

Title IX’s Inception

Forty-five years before DeVos’ speech, Congress passed the Education Amendments of 1972, which established Title IX, a prohibition against discrimination on the basis of sex at any university receiving federal funding. When Title IX was passed, the statue raised questions for hundreds of universities across the United States. Title IX required them to reexamine fundamental aspects of their institutions, such as funding for women’s sports programs and policies against sexual harassment. The passing of Title IX was an incredible victory for advocates of gender equality on college campuses.

Yale and Title IX

In 1977, the Yale Undergraduate Women’s Caucus surveyed women about their experiences at the university. The survey exposed that students were “having sexual relations with professors,” Ann Olivarius ’77, told The Politic. Olivarius, a student at the time and the head of the caucus, explained that such relations “seemed to assure them of getting good grades.” A group of students, with Olivarius at the helm, helped establish the term “sexual harassment” in order to contextualize the survey’s findings.  Olivarius gathered a team to further investigate the university for discriminatory practices against women. The team eventually brought a lawsuit against Yale.

Catherine MacKinnon ’77 LAW, a Yale law student at the time, assisted Olivarius in establishing the framework of the lawsuit. The students sued Yale University directly. Olivarius was a plaintiff, and the case Alexander v. Yale was the first case in history to argue that sexual harassment was a form of discrimination and therefore a Title IX violation. The plaintiffs sought no damages on behalf of the women, explained Olivarius. Instead, they sought the creation of a central registry of those accused and found guilty of sexual harassment so that, “Yale would know how many of its faculty were credibly accused of sexual harassment or rape.”

The issue, Olivarius said, was that there was no central registry of sexual assault cases on campus. Therefore, the university had no way of knowing if there was “a serial predator” on campus. Previously, if a woman had been sexually harassed, she could come forward, but her case would not be recorded, and the university would likely not take action. Under Olivarius’ proposed system, women who came forward and reported harassment would have their cases recorded and documented.

Filing the lawsuit was only the first step. Olivarius remembers how on the eve of her 1977 graduation, the Secretary of the University, Sam Chauncey ’57, called and told her that she was going to be arrested by the Yale Police for defamation. Olivarius was terrified. “I hadn’t gone to law school yet,” she recalled. “I didn’t know that defamation was a civil issue and not a criminal one.”

Olivarius marked the call as the first of many instances of intimidation she suffered during the suit. “I got used condoms, I got death threats, and I got excrement in a package a couple of times,” she recalled. At one point, she was approached by the secretary for William Zinsser, then Master of Branford, her residential college. The secretary was the wife of Keith Brion, a known sexual harasser who was named in the lawsuit. He had also been accused of raping one of his students. At the time, Olivarius was applying for Rhodes and Marshall Scholarships, in addition to Yale and Harvard Law School. According to Olivarius, Brion’s wife told her that she was going to destroy her academic file, thus preventing any pending acceptances. Olivarius proudly noted that she would eventually win both scholarships and was accepted to both law schools.

Olivarius and her co-plaintiffs eventually lost in the federal Court of Appeals, which she attributes to the fact that, by the time the case was decided, the plaintiffs were no longer at Yale. Regardless of the defeat, Olivarius remained optimistic. “We were the genesis,” Olivarius said. “We paved the way forward with this legal theory that was novel and original and quite gutsy.” The plaintiffs had established that sexual harassment is a form of discrimination.

Despite the loss in court, the case resulted in a number of positive outcomes. Yale soon after established the Sexual Harassment Grievance Board, today known as SHARE, which provided a place for student victims of sexual misconduct to file reports. The model was later replicated by hundreds of universities across the United States. MacKinnon would go on to become a legal scholar, teaching law at Yale, Stanford, and Harvard, where she is currently a visiting professor. Olivarius would launch a successful and wide-ranging legal career as well, engaging in various activities from representing survivors of childhood sexual abuse to advising Nelson Mandela on gender-based inequality.

A Recent History

In 2003, Yale Divinity School graduate Kathryn Kelly sued Yale for failing to provide her with academic assistance after she was sexually assaulted at Yale in 1999. At a forum to address student concerns about the incident, the Dean of Yale Divinity School stated that the assault “was not legal rape.” Kelley responded by suing for defamation, in addition to her original suit against the school. After a fierce legal battle, Yale and Kelly eventually settled for an undisclosed amount of compensation.

In 2011, a group of 16 Yale students filed a Title IX complaint with the Department of Education’s Office for Civil Rights, arguing that Yale was a “sexually hostile environment.” Though none of the women claimed to be victims of harassment, they filed on behalf of the Yale student body, faulting the university for “inadequate response to a long trend of public sexual harassment.” The complaint highlighted a number of recent cases of harassment in which the majority of perpetrators—members of the Yale community—faced no disciplinary action by the university. Two weeks after the complaint was filed, the Office for Civil Rights launched an investigation. Yale eventually settled the suit with the Department of Education.

Coincidentally, four days after the Office for Civil Rights announced their investigation into Yale, the Department of Education, at the direction of President Obama, issued the “Dear Colleague Letter” requiring that universities follow a new set of Title IX regulations. Universities were to now use a “preponderance of evidence” standard, the threshold used in civil court. The standard mandates that guilt is determined by the most convincing or compelling evidence and its probable truth. Essentially, 51% certainty is considered a preponderance of evidence. The standard’s evidence threshold was lower than the previously used “beyond reasonable doubt” standard—the standard used in criminal court. A beyond reasonable doubt standard requires 98-99% certainty.

The “Dear Colleague Letter” also instructed universities to hear a student’s Title IX complaint  “regardless of where the conduct occurred.” Universities were now required to exercise their Title IX duties for any incidents that happened off-campus in addition to on-campus cases. Universities were now also required to create an appeals process for those who brought Title IX cases and were unsatisfied with the university’s ruling.

In her September 2017 speech, Secretary DeVos expressed her desire to “develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits.” As this “approach” was being developed, Secretary DeVos’ office released a document titled “Q&A on Campus Sexual Misconduct” which laid out new university guidelines. The new guidelines officially revoked the guidelines from Obama’s “Dear Colleague” letter.  The guidelines, unsurprisingly, stood in stark contrast to those of the Obama administration. First, the document laid out that universities could now choose to use either a “preponderance of the evidence standard” (the lower standard under the Obama era guidance) or a higher, “clear and convincing evidence” standard. In addition, the document required universities to evaluate cases of sexual assault with the same standard they would use for any other acts of misconduct, such as cheating. Second, the document allowed universities to choose to hear an appeal from only the accused party or from both the accused and accusing. The new choice stood in direct contrast to former policy in which the accusing party could always appeal a decision reached by a university committee. Finally, the new document stated that “[the] university does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of the recipient.”

The Department of Education has yet to release its official new policy, though multiple leaks have shed light on possible official changes.

Legal Scholars Respond

In conversation with The Politic, Professor Vicki Schultz, the Ford Foundation Professor of Law and Social Sciences at Yale, expressed concern with some of the potential new guidelines, specifically the change in off-campus policy. According to Schultz, that universities are no longer required to investigate events that occur off campus, is problematic. Referring specifically to fraternity houses, Schultz believes, that universities have a responsibility and interest “to regulate” these types of spaces. “Just as students shouldn’t steal, plagiarize, cheat, or engage in physical assault,” Schulz explained, “[they] shouldn’t harass or discriminate against other students.” Schulz sees any new regulations that give universities less of an incentive to ensure a respectful, meaningful, and fair environment, as “a step backward, not forward.”

Speaking more broadly about Secretary DeVos’ new guidelines, Schulz bemoaned what she views as an opportunity for universities to deny Title IX rights to students. “With the withdrawal of the Obama-era regulations that occurred last year” Schultz explained, one can expect “to see changes at the university level throughout the country.” Schulz is worried that “some universities will feel freer to deny students their Title IX rights because there will be less Department of Education oversight and accountability.”

Many legal scholars have focused on which standard of evidence Title IX cases should follow. “There’s one specific issue that’s worth talking about,” Joan Williams ’77, told The Politic. Williams is a prominent feminist legal scholar, and law professor at University of California Hastings College of the Law. Williams viewed the preponderance of evidence standard to be the Obama Era regulation which “spurred the most controversy,” although it is one with which she agreed. “That made sense to me,” Williams said about the preponderance of evidence standard, “because this isn’t a criminal context, this is a context of whether a university should be able to impose sanctions against a student who violates university policy.”

“The message this guidance is sending is that the Trump administration takes sexual assault less seriously,” expressed UC Hastings Law Professor Veena Dubal in conversation with The Politic. “It may also be sending messages to colleges that they do not need to direct their attention to proactively addressing campus rape,” she noted. From Dubal’s perspective, universities may pursue Title IX cases less intensely than before “because they are not likely to be found in violation of Title IX” for doing so. Finally, Dubal worried that a higher standard of evidence may “deter victims of sexual assault from coming forward with their allegations.”     

Some, however, don’t see the new regulations as cause for concern. The Foundation for Individual Rights in Education is an organization which defends students who have their free speech or due process rights infringed upon on a college campus.

“I’ve heard a lot of commentary that says the sky is falling,” said Joe Cohn, FIRE’s Legislative and Policy Director. The idea that it will be “open season on sexual assault victims” with the removal and replacement of Obama’s regulation is a sentiment that Cohn has heard and rejects.   From Cohn’s perspective, it’s impossible to reach the conclusion of “the sky falling” from an actual reading of the rules being proposed. Cohn sees DeVos’ potential changes to be a “fairly balanced attempt” to protect students from sexual harassment and assault while not running “roughshod” over due process rights.

Cohn sees a number of flaws with the Obama administration’s regulations. For example, Cohn takes issue with the “preponderance of evidence” standard. Cohn stated that the high level of evidence required before Obama’s regulations was “really the only protection that existed at most of schools.”

“Once that was eroded,” Cohn held, it became clear that investigators were “putting pressure on schools to find students responsible.” An additional problem Cohn saw with the Obama era regulations was the inability of students to have their attorneys actively represent them during the hearings. Under Obama’s regulations, attorneys were given the right to be allowed in the room during the hearings, but that was all. Cohn said this was akin to “having a heart surgeon in the room who isn’t allowed to do the surgery.” This is something that Cohn said benefits students bringing cases in addition to accused students. For complainants, Cohn said, “there is no guarantee that the school does a competent job” of making the case that the student in fact was assaulted or harassed. Furthermore, in a world where there have been “credible allegations” of schools showing a desire to sweep certain allegations under the rug, Cohn believes it is paramount to have an advocate “who is going to speak for you and only you.” Cohn holds that having lawyers actively defending their clients ensures that a person “isn’t tainted with a shadow of bias.” Cohn holds that pre-Obama regulations were “sensible.” The Department of Education, in his opinion, was not effectively enforcing these rules.

Department of Education enforcement, or lack thereof, is likely one of the only places where Cohn and Olivarius are in agreement. Olivarius sees weak enforcement of Title IX by the government as one of the greatest threats to Title IX and believes that universities need to be fined more aggressively for mishandling Title IX violations. If universities are severely charged for the violations, Olivarius said, they will work diligently to stop the violations. Olivarius would specifically fine administrators. “If you make a solid salary and if you can’t get your university in order,” Olivarius stated, “then administrators should take a reduction in salary.” Olivarius favors treating university administrators as CEOs would be treated; if they “are not performing,” she said, “they take a pay reduction.”

Yale and Title IX Today

A few years ago, Olivarius was contacted by members of the Yale Corporation who were interested in hiring her as Yale’s general counsel. She explained to The Politic that though she was interested, she told Yale that she would only do it if they wanted to become leaders in education and university law. Olivarius told Yale that if they wanted to be the best university “for life and living, diversity issues, and litigation, then I’m your girl.” After negotiations, Olivarius ultimately did not assume the position. Alexander E. Drier joined Yale in 2015 as Senior Vice President and General Counsel.

Yale has a deep, complicated history with Title IX. On one hand, Yale students were trailblazers in the fight for sexual harassment protection laws, and Yale has taken pioneering actions in the last four decades such as the establishment of the Sexual Harassment Grievance Board. On the other hand, the positive impact Yale may have had on Title IX has been marred by a number of high profile Title IX violation cases. Yale has not commented publicly on DeVos’ new potential policy changes. Yale’s administration, like administrations at universities across the country, has undoubtedly been forced to consider how they will respond, if they do at all, to potential changes to Title IX.

Yale’s Title IX office recently revealed that there was a record number of sexual misconduct complaints filed in the first six months of 2018. Secretary DeVos will soon release a new Title IX policy. Which standard of evidence the Department of Education mandates will have wide ranging consequences–across the country, and on Yale’s campus.

The SHARE center at Yale was contacted for this article, but wouldn’t comment due to the confidential nature of their services.