Over many months, Olivia Dunn has spent hours in therapy trying to overcome the mental and emotional trauma she never thought she’d find at the hands of the officials tasked with protecting her right to an education.
In September, 2020, Ms. Dunn, a nursing student at the University of Toledo, was raped and strangled by a Bowling Green State University graduate student. Shortly after the incident, she reported her experience to the BGSU Title IX Office, which handles complaints of sexual misconduct. She also filed a report with the Bowling Green Police Department.
Both experiences left her with an understanding of why so few women choose to report sexual harassment and sexual violence, she said.
“The emotional trauma that came from speaking out and telling people was almost just as bad as the actual strangling,” Ms. Dunn said.
Title IX, ratified as a part of the Education Amendments of 1972, is a federal civil rights law that protects an individual’s access to education, regardless of sex.
Under Title IX, all federally funded educational institutions are required to adopt and publish grievance procedures that provide for the resolution of sex discrimination complaints, which include sexual harassment and sexual violence. The landscape of Title IX has been a topic of national debate for more than a decade.
On college campuses, in-house Title IX offices are the primary means through which students seek resolution to those complaints.
As the Biden-Harris administration settles into its first year, Title IX officials across the country are turning their eyes and ears toward Washington. They are waiting to see how the new office, which last month announced its overhaul of the Trump-Pence administration’s Title IX regulations, will address procedure, burden of proof, due process rights, Title IX jurisdiction and definitions, and other hot-button issues.
According to BGSU Title IX Coordinator Lekeshia Dowlen, who has been with the university for more than 20 years and has had Title IX responsibilities for more than seven, the goal of university Title IX offices is to ensure that students and university employees can learn and work in an environment free from sex discrimination.
If discrimination occurs, it is the office’s job to provide remediation and support.
Support services commonly offered by Title IX offices include referring students to counseling centers either on or off campus, providing extensions on exams, rearranging living conditions, changing class schedules, or, in some cases, issuing no-contact orders between parties.
Navigating the process
Throughout the Title IX investigation that followed her report, Ms. Dunn, who was 20 at the time, claimed she was mistreated by investigators. On multiple occasions, she said she was asked, “Why didn’t you say ‘no’?”
“Saying verbally ‘no’ isn’t the only form of non-consent. I was being strangled at the time so words couldn’t come out of my mouth,” she said, adding that she had to ask investigators to stop asking her the question over and over.
On Thursday, Ms. Dunn’s case was scheduled to come to a finding of responsibility, Title IX terminology for a final ruling, but upon advice from legal counsel, she decided to withdraw her complaint prior to the ruling.
“I feel awful dropping my case,” Ms. Dunn said. “It was the right decision for me personally, because my mental health was just getting really bad with all the questions and having to tell all that stuff to Title IX.”
In a written statement, university spokesman Alexis Solis said BGSU could only imagine the gravity of working with two separate universities - in this case UT and BGSU - and law enforcement in different cities to report the sexual assault.
“The University recognizes that we must be part of the solution to combat sexual assault, and we will continue to focus on education and resources to engage our community,” Mr. Solis said.
“BGSU works each day to ensure its Title IX and sexual assault processes and policies are fair and supportive,” Mr. Solis said. “Given the trauma and emotion, it is understandable, but also so unfortunate that this individual also withdrew their report and declined to move forward with a conduct hearing …”
In Ms. Dunn’s criminal case, filed with B.G. police on Sept. 30, the man she said raped and strangled her was cleared without charges being filed, according to police records. In many ways, Ms. Dunn said what she experienced with the Title IX office at BGSU was echoed in her treatment by B.G. police.
She said her experience was quickly dismissed by the investigator who handled her case after he learned that she had met her alleged assailant on a dating app. She added that the investigator made a number of inappropriate comments throughout his interviews with her, including, “You didn’t say no, so that’s consent,” and “Next time we’re going to think twice about meeting strangers on the internet, right?”
“How many other girls have B.G. police talked to like that?” Ms. Dunn asked.
Bowling Green police did not comment on Ms. Dunn’s claims, though a spokesman from the department said that no complaint had been filed about the handling of Ms. Dunn’s investigation.
Ms. Dunn is far from the only victim who has suffered mental and emotional trauma after reporting sexual violence.
In a survey by Know Your IX of more than 100 student survivors who formally reported sexual violence to their schools, 39 percent reported that they were forced to take a leave of absence, transfer schools, or drop out of school entirely. Seventy percent of those surveyed reported that they experienced adverse effects on their safety and privacy, while more than 40 percent suffered from PTSD and more than one third reported experiencing anxiety.
“This is why girls don’t come forward. We’re scared to come forward. It shouldn’t be like that. We shouldn’t be scared,” Ms. Dunn said.
To combat gender inequities on the national stage, President Biden signed two executive orders on March 8, also International Women’s Day. One established a Gender Policy Council in the White House. The second looks to overhaul Title IX regulations from the Trump administration, which afforded greater protections to students accused of sex-based discrimination in all its forms.
These regulations, announced in May, 2020, and implemented in August of that year, uprooted Obama-era guidance, which pressured but did not require institutions to adopt recommended Title IX policies and procedures.
Critics of Obama-administration guidance point toward the administration’s minimization of due process rights for accused students and faculty members. That guidance was originally released in April, 2011, via a Dear Colleague Letter, a written document members of Congress use to encourage support for bills or resolutions or to make statements on policy with contemporaries.
That letter was formally rescinded under the Trump administration’s department of education, spearheaded by former Secretary of Education Betsy DeVos, in the department’s first-ever regulations on sexual misconduct.
Those regulations have been widely criticized by survivor advocacy groups for failing to protect students’ safety.
“This rule doesn’t help student survivors. It’s looking to reduce reporting and save schools money,” said Thalia Charles, a policy and advocacy organizer for Know Your IX, a student-led organization fighting to end sexual violence and dating violence in schools. “Title IX is at its core about protecting all students from harm and the current rule doesn’t protect students’ safety.”
The U.S. Department of Education announced on April 6 that it would begin its review of Title IX. The department’s Office for Civil Rights, which handles all federal Title IX complaints, plans to hold a public hearing on the matter. Details have yet to be announced. Regulations will remain in place pending the Biden administration overhaul.
Of the most contested changes, the Trump-era regulations limit the jurisdiction of Title IX. Officials reported that this has impacted what cases their offices can and can’t take on.
The definition of sexual harassment under Mr. Trump’s administration narrowed to cover only those instances that are severe, pervasive, and objectively offensive. The Obama-era guidelines included instances that are severe or pervasive or persistent.
This is a dramatic shift, said Patty Wise, a Toledo-based attorney with expertise in employment law.
“That is in fact higher than the standard that we use in employment law, an area where there are many, many laws and many, many cases that have interpreted those laws and so the framework is well-established,” Ms. Wise said.
Ms. Wise, who is also a part-time professor for the University of Toledo College of Law, has served as an adviser in Title IX cases to both complainants and respondents. She also represented universities in Title IX complaints.
“When you think about a claimant coming forward, first of all, most do not,” she said. “And then, when they do, to have to prove a case where whatever they experienced was all of those things, severe, pervasive, and objectionably offensive, that would be very difficult.”
Where things are now
Current Title IX guidance additionally requires schools to dismiss complaints of sexual misconduct that occur outside of campus-controlled buildings or education programs. This omits incidents that occur during study abroad or in off-campus housing.
Owens Community College’s Title IX Coordinator Danielle Filipchuk said that as a non-residential, two-year campus the vast majority of complaints sent to her office pertain to sexual harassment. Because of the changes in definition and jurisdiction, her office’s oversight has been significantly limited.
This year her office received one report, which was referred to the college’s conduct process, and opened no cases.
During the coronavirus pandemic, BGSU’s Ms. Dowlen reported that her office also saw a significant decline in complaints and cases.
In the 2020 fall semester, 37 reports were made to the BGSU Title IX office. Of those reports, only five fell under Title IX jurisdiction, Ms. Dowlen said. And just one became a full-fledged investigation.
While the number of cases her office can process has decreased - Ms. Dowlen reported that an average semester will see roughly 70 complaints and 15 investigations - the Title IX coordinator reported that, like Owens and many other institutions, the university recommends complaints Title IX cannot process to the campus’s code of conduct for review under the dean of students.
Eric Long, a Cleveland-based attorney who helms his firm’s Title IX defense practice and has served as an adviser at a number of Ohio schools including the University of Toledo and BGSU, said this policy, which has become common practice across the nation, is a dangerous one.
“Schools can strip the very due process rights that were meant to be in place under Title IX,” he said. “They say it’s not Title IX anymore, it’s just student discipline, and we can do whatever we want.”
UT’s Title IX Coordinator Vicky Kulicke echoed that complaints that don’t meet the Title IX threshold are often referred to other university divisions for review.
“That doesn’t mean it’s not covered by the institution. It just means that Title IX doesn’t have jurisdiction,” she said.
Current regulations also require that colleges allow live cross-examination by each party’s adviser. These advisers are often attorneys, but they can also be parents, friends, or other advocates. Students are required to have an adviser for these hearings.
Title IX hearings, and the adviser requirement, have created a quasi-legal proceeding that lacks the structure and regulation of a criminal court, legal experts and Title IX officials reported. This creates problems for both respondents and complainants.
“There are a lot of laws and rules for the practice of law in the court system and this is something that I think schools and colleges are not particularly well-equipped to do,” Ms. Wise said.
According to Ms. Wise, in a court of law, there is a structured process for cross examination that is governed by rules of evidence and ethics. To make colleges responsible for such a difficult element of trial and then to offer that role to advisers, who may be untrained family and friends, does a disservice to all parties involved, she said.
“We are not a court of law. I’m not trained in legal procedure. Neither are my investigators or hearing officers or decision makers,” Lourdes University’s Title IX Coordinator Terry Strode said. “We’re doing the best we can with the training that we’ve been given by legal professionals but at the same time, we’re not legal professionals.”
Mr. Strode also pointed out that the hearings provide an opportunity for socioeconomic discrimination.
“It can actually cause there to be an inequitable process, because you might have two students, one who’s got a lawyer and one who can’t afford one and just has a friend or family member as an adviser,” he said.
According to Ms. Wise, that adversarial process can dissuade claimants and witnesses from testifying.
In Ms. Dunn’s case, for example, a witness came forward during the preliminary part of the investigation that provided testimony which corroborated Ms. Dunn’s account. After providing a statement that was included in the preliminary report, that witness decided she did not want to participate in a live hearing and so her testimony was redacted from the final investigatory report.
Title IX Offices cannot subpoena witnesses, even if their testimony is vital to a case, and they cannot include what those witnesses have reported unless the opposing party is given the opportunity to cross examine them.
It was this particular part of her case that caused Ms. Dunn to begin to consider dropping her complaint.
“I could have been silenced after the hearing,” Ms. Dunn said. “They could have found him innocent due to insufficient evidence.”
Despite its current shortcomings, Mr. Long pointed out that the process of cross-examination can be an integral part of determining truth in a given case.
“It’s very easy for people when they hear a story that they find to be very difficult to listen to, to sympathize with the accuser. Without effective cross-examination, it really is very difficult for somebody to defend themselves,” he said, adding that in his experience, Title IX training has introduced in some cases a bias against accused male students, which is in and of itself a Title IX violation.
The Obama administration recommended a preponderance of the evidence standard or a greater than 50 percent likelihood as the burden of proof for Title IX investigations, the same burden of proof used in a civil trial. Trump administration regulations allow universities to opt for a higher burden of proof -- the clear and convincing standard.
According to local Title IX officials, expulsions and suspensions resulting from Title IX cases are exceedingly rare. Most offices reported that one might occur every few years.
While legal experts and Title IX officials all expressed some level of dissatisfaction with the Title IX process as it currently stands, BGSU’s Ms. Dowlen pointed out that it has been difficult to fully understand the ramifications of these new policies in such a short period of time.
“We don’t have anything to compare this year to. If this had been a non-COVID year, operating under these new guidelines, we’re not quite sure what we would have seen,” she said.
It remains to be seen whether Biden-era regulations will be reminiscent of Mr. Obama’s guidance or will maintain a number of Mr. Trump’s policies. Mr. Long said he expects them to be a combination of the two.
“I don’t think the Biden Administration is going to go back to what it was before because doing so would fly in the face of the judicial opinions that have come out since the Obama guidance in 2011,” he said, adding that he did anticipate a roll back on the option to adopt a higher burden of proof and an abbreviated version of the currently allowed cross-examination.
Ms. Wise said she’d like to see greater support for trauma-informed interviewing and procedure, a technique that was de-emphasized by the Trump administration and is used by officials to avoid re-traumatizing victims of sexual misconduct.
While the world of Title IX anticipates a new round of changes, students like Ms. Dunn remain in limbo, waiting for a process that works for them and does not compound the trauma they have already experienced.
“Being treated like a human being during the process would just have been life-changing for me,” she said.
First Published May 2, 2021, 12:00 p.m.
