Miltenberg: “The Lead-Up to the Proposed Rules on Title IX,” The University Network

Title IX of the Education Amendments of 1972 seeks to prevent sex discrimination on any campuses that receive federal financial funding … But when it comes to sexual violence on campus, Title IX has had a rocky path … In 1997, the Clinton-era U.S. Department of Education’s Office for Civil Rights (OCR), which investigates and administratively enforces Title IX as it pertains to sexual harassment, released guidance solidifying that sexual harassment of students by their peers, school employees, or third parties is a form of sex discrimination and, therefore, is prohibited under Title IX … However, in two later rulings — one in 1998 and the other in 1999 — the U.S. Supreme Court held that schools should only have to pay damages for “harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Additionally, the Court found that schools can only be held liable if they had “actual knowledge” that sexual harassment occurred and acted with “deliberate indifference.” This decision led to protests by survivor advocacy and women’s groups. And through a legislative loophole, the Clinton administration, too, dismissed the court’s interpretation of schools’ responsibilities with the OCR announcing a revised guidance in 2001 that closely reflected its 1997 guidance … Despite the 2001 guidance, however, sexual violence on college campuses persisted. So, with a rise in the number of survivor advocacy groups and some strong pressure from his base, the Obama administration took a crack at fixing the problem in 2011 … “I think that the 2011 Dear Colleague letter was, in concept, a great idea,” said Andrew Miltenberg, a New York-based attorney and managing partner of Nesenoff & Miltenberg LLP, who specializes in the field of campus assault due process. “But I also think that the specific delineations in it were not particularly well thought out, and I think that schools completely botched carrying it out.”