On September 25, 2015, the Yale Law Journal held a “Conversation on Title IX” that confirmed the existence of a new civil rights movement in our nation and our schools. The movement’s leaders are smart, courageous survivors of gender-based violence—virtually all of whom are current undergraduates or recent college graduates. Joining them are multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. These generations include those who began using and changing the law to address gender-based violence in the 1960s and 70s, whether by working to end sexual harassment in the workplace,1 by reforming the criminal law of rape,2 or by developing new legal mechanisms to protect and empower the victims and survivors of domestic violence.3 Also included are those who have doggedly continued such work—even expanded it in important ways beyond the criminal law4—during decades often characterized by “backlash” against various women’s movements.5 As a result, it is fair to say that this campus-based civil-rights movement can and will continue to exert the collective strength of advocates to solving the problem of gender-based violence in educational institutions and in society as a whole.

The educational environment is the focus of this movement for reasons both disturbing and hopeful. On the disturbing side of this coin, Vice President Joseph Biden has spoken with dismay about current rates of violence against women in college, where virtually no progress has been made in the twenty-one years since the Violence Against Women Act (VAWA) passed in 1994.6 On the hopeful side is Title IX of the Educational Amendments of 1972 (Title IX),7 the groundbreaking civil rights statute prohibiting sex discrimination in education. Included in Title IX’s definition of sex discrimination are sexual and other forms of gender-based violence, which are commonly considered severe forms of sexual harassment, itself a type of sex discrimination that violates Title IX.8

The movement has also played an active role in using and improving the effectiveness of another law, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), which was amended by VAWA in 2013 to add more provisions requiring colleges and universities to prevent and respond to gender-based violence in a variety of ways.9 However, movement leaders have wisely chosen Title IX as their lead banner and organizing point. As a civil rights statute, Title IX guarantees broad rights to an equal education, following in the steps of older civil-rights statutes such as Title VII of the Civil Rights Act of 1964, which safeguards equal employment opportunity.10 In addition, because it was passed into law over forty years ago, Title IX is available for survivors to use now, without requiring the many years generally needed to pass a whole new statute and build administrative and court-based enforcement mechanisms. Therefore, although schools’ compliance with Title IX and the statute’s enforcement still require significant improvements,11 today’s movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements. Movement activists can, and will, continue to improve Title IX’s ability to protect students’ civil rights to equal educational opportunity.

But in doing so, the Title IX movement must remain vigilant against pushes to “criminalize” Title IX.12 Suggestions that gender-based violence violating Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault.13 This conflation fundamentally undermines Title IX’s central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.14

By prohibiting gender-based violence as a form of sex discrimination,Title IX recognizes that such violence is both a cause and a consequence of gender inequality, an insight that has been understood throughout the globe for many decades.15 Because, as the Secretary General of the United Nations has stated, “[v]iolence against women is a form of discrimination and a violation of human rights . . . [that] can only be eliminated . . . by addressing discrimination, promoting women’s equality and empowerment, and ensuring that women’s human rights are fulfilled,”16 Title IX’s main goals are creating rights and remedies for victims and ending not only harassment and violence but also its discriminatory effects.

In contrast, the criminal law is not concerned with establishing equality, and it gives few, if any, rights to violence victims. A primary goal of the criminal law is to keep the abstract community as a whole safe from violence, which it achieves, in part, by incarcerating criminal actors17 while at the same time providing safeguards to avoid punishing innocent defendants.18 As a result, criminal cases are structured as adversarial proceedings between a defendant and the whole community, represented by the state’s prosecutor.19 Moreover, because defendants face potential incarceration, death, and the loss of legal rights, the state must meet high procedural standards designed to protect defendants’ liberty against unjust exercises of the government’s immense power to punish.20 Therefore, the criminal system is primarily focused on the defendant’s, not the victim’s, rights.21

Additionally, the push to criminalize Title IX forgets who has to enforce the rules. Educational institutions are not empowered to incarcerate students. Indeed, schools have no power to enforce the criminal law at all. However, schools not only have the power, but also the obligation, to comply with the civil rights requirements of Title IX.

Nevertheless, recent state and federal legislation continues the attempt to criminalize Title IX. This legislation generally advances one of three proposals. First, there has been a concerted effort to import criminal due process requirements into campus disciplinary and grievance proceedings.22 Second, a range of lawmakers have proposed legislation mandating that school officials refer all reports of sexual violence, including through the school’s Title IX system, to law enforcement.23 Third, a number of states have passed statutes requiring colleges and universities to adopt “affirmative consent” or so-called “yes means yes” policies.24 As the remainder of this Essay will detail, the first two proposals conflict with and dangerously undermine Title IX’s equality mandate, but the effect of the third is more equivocal. This Essay considers each one of these criminalization efforts. It then briefly proposes two methods of retaining the benefits of affirmative consent policies while minimizing the damage they could do to Title IX rights.

I. importing criminal due process into internal, administrative title ix proceedings

The first category of legislative proposals seeks to criminalize Title IX by infusing unequal criminal procedures into campus-based administrative proceedings, thus undermining Title IX’s equality goals. In 2015, at several state bills and one congressional bill, as initially proposed, would have created rights for students and student organizations accused of misconduct that would not be equally available to student victims.25 While the state and federal bills vary somewhat, all of these bills would give accused students and organizations various rights associated with criminal trials that would create conflicts with schools’ Title IX obligations and upset the U.S. Supreme Court’s decades-old balance regarding school discipline. These bills would also create rights only for students or student organizations found responsible for and sanctioned for sexual violence (but not for other misconduct), including rights to seek judicial review of university proceedings and to allow the sanctioned student or organization to obtain monetary damages against the school.26 Thus, students found responsible for sexually victimizing another student or students would become the only students in the country who may ask a court to overrule the decisions of school disciplinary proceedings made pursuant to the schools’ own policies.

Providing accused students with a set of rights that are not advanced to survivors fundamentally conflicts with Title IX’s “procedural equality” requirements. This term encompasses many of the specific rules that were first articulated by the Department of Education’s Office for Civil Rights (OCR) under the general heading “Prompt and Equitable Grievance Procedures”27 and follows the fundamental principle that both parties to a proceeding get equal rights within the rules that govern the proceeding. These rights include whether the accused person and victim are considered parties to the proceeding; whether they are represented by an attorney, advisor, or advocate; what kind of access to evidence (including exculpatory evidence) they have; what privacy protections they are given; whether each may be present at any hearing and for what portion of the hearing; and who may appeal any decision made by the fact-finder. All are provided equally under Title IX, but unequally under the criminal law.

In fact, because protecting equality is not a goal of the criminal justice system, criminal procedures have no reason to keep the status of defendants and victims in the proceeding equal. As a result, victims get vastly fewer procedural rights than defendants do.28 Victims are not parties to criminal cases but are considered “complaining witnesses” who may not remain in the courtroom beyond giving their testimony. As non-parties, victims have no attorney representation in the courtroom, and the victim has no control over the prosecution’s presentation of her or his case.29 Moreover, criminal discovery requirements, such as the Brady rule, require the prosecutor to disclose any evidence that may support the defendant’s innocence, whereas nothing requires the defendant to disclose evidence supporting the truth of the victim’s report.30 Defendants can thus demand disclosure of sensitive private information such as medical and counseling records on the basis that they are relevant to the victim’s credibility and are a kind of exculpatory evidence, but the victim—or even the prosecutor—cannot make reciprocal evidentiary demands.31

In contrast, Title IX requires that victims and accused students be treated as equal parties to a grievance proceeding. OCR has made clear that “[w]hile a school has flexibility in how it structures the investigative process, for Title IX purposes, a school must give the complainant any rights that it gives to the alleged perpetrator.”32 Therefore, if a school allows accused students rights such as those listed above, which are commonly provided to criminal defendants, it must give student complainants the same rights—all at the same level as guaranteed to the accused.

As Alexandra Brodsky, moderator of the September 25 Conversation lunch panel, first pointed out,33 Title IX’s procedural equality requirements have not only resulted in an expansion in victims’ rights beyond what victims receive under the criminal law, but they have also expanded accused students’ rights in campus disciplinary proceedings. Under U.S. Supreme Court precedent, because campus disciplinary procedures are administrative and not criminal proceedings, schools have to guarantee—at most—that the accused student had notice and an opportunity to be heard.34 A long list of criminal due process rights have been rejected repeatedly by courts judging the fairness of campus disciplinary proceedings, including the right to be accompanied by an attorney in campus proceedings.35 However, when VAWA amended the Clery Act to guarantee that both students involved in disciplinary proceedings for dating violence, domestic violence, sexual assault, and stalking were entitled to an “advisor of their choice,”36 and the negotiated regulations later defined “advisor” to include attorneys,37 accused students’ rights were significantly expanded. Although VAWA specifically gave both accuser and accused the right to an advisor of their choice, had the statute only given this right to the accuser, Title IX’s requirements would have required that accused students also receive that right. Thus, the VAWA amendments provide a concrete example of how Title IX’s requirement of procedural equality can increase the rights of both survivors and accused students.

Along with the rule that both students are considered parties in Title IX proceedings, Title IX’s most important procedurally equal rule requires schools to use a preponderance of the evidence standard when investigating and resolving Title IX complaints.38 Civil rights systems require the preponderance standard because it is the most equal of all standards of proof. First, the preponderance standard allows survivors to prevail on their allegations as long as just over fifty percent of the evidence supports their allegations. Second, the preponderance standard gives as equal as possible presumptions of truth-telling to both parties, whereas the standards used by the criminal system such as “beyond a reasonable doubt” or even “clear and convincing evidence” give a heavy presumption in favor of the accused. The criminal standards can be taken—and studies suggest that many victims do take them this way39—as a societal belief that victims lie. Sexual violence cases are often credibility contests. Therefore, a process that builds a strong presumption in favor of the accused can be seen as a symbol that we believe that the likelihood that victims across the board will lie is so much greater than that perpetrators will lie that we have to build safeguards against that lying into the very structure of our proceedings. Such an assumption is manifestly unequal because giving presumptions in favor of one side or the other is by definition treating them unequally. In addition, in the context of sexual violence, a systemic assumption that victims lie is a kind of gender-stereotyping that is widely recognized as a violation of equality rights, a point that Adele Kimmel’s Feature for the September 25 Conversation makes with regard to Title IX and harassment of LGBT students.40

Allowing schools to adopt a criminalized standard of proof such as “clear and convincing” evidence or “beyond a reasonable doubt,” as at least one of these bills does,41 would also create legal and administrative barriers for student survivors of gender-based violence that do not apply to the vast majority of comparable populations involved in civil or civil rights proceedings, all of which use the preponderance standard. To name just a few, these groups include: other students alleging other kinds of sex discrimination; students alleging discrimination based on other protected categories, like race or disability; gender-based violence survivors seeking protection orders in civil court; students alleging other forms of student misconduct; and students accused of sexual or any other misconduct who sue their schools in civil court. In reality the preponderance standard is used in the vast majority of cases, not only in internal disciplinary proceedings42 but also in other administrative or civil court proceedings43 and under other civil rights statutes that protect equality. These include other education-related statutes and civil rights statutes outside of education, like Title VI of the Civil Rights Act of 1964, which prohibits discrimination in schools based on race, and Title VII, which prohibits sexual harassment in employment settings.44

Indeed, separating out sexual violence victims for different procedural treatment would enact a new kind of damaging “exceptionality [for] rape,” as Michelle Anderson discusses in her paper for the September 25 Conversation.45 Using anything more stringent than a preponderance standard would symbolize that we as a society are comfortable with giving one group of women and girls, as well as men and boys who are gender-minorities and victimized because of it, unequal treatment when compared to everyone else. As such, recent legislative efforts to make it possible for schools to replace the preponderance standard with “clear and convincing” or “beyond a reasonable doubt” evidentiary standards demonstrate the dangers of importing the standards of the criminal justice system into Title IX’s very different legal regime, which advances equality goals and principles that are not shared by the criminal law.

II. mandatory referral

The second major effort to criminalize Title IX is demonstrated by legislative proposals to mandate that campus officials refer all reports of sexual violence that they receive to law enforcement,46 essentially turning a victim’s report to school authorities into an indirect report to law enforcement. Mandatory referral undermines Title IX’s equality principles and purposes both symbolically and practically. Symbolically, mandatory referral actually discriminates against survivors and is thus a direct violation of Title IX. Practically, it limits the number and diversity of reporting options that victims can use, which seriously impedes—and in an unknown but likely to be large number of cases may even eliminate—victims’ access to a range of Title IX rights that the criminal system does not and cannot provide.

Mandatory referral discriminates on the basis of gender in clear violation of Title IX, because restricting survivors’ options by turning all reports into a report to law enforcement perpetuates stereotypical attitudes that infantilize victims. Mandatory referral treats student victims of gender-based violence, most of whom are women and girls, differently from similarly situated adults. This differential treatment is in direct contrast to Title IX’s prohibition on sex discrimination in federally funded educational activities.

This discrimination occurs because mandatory referral operates under the same premises as state “mandatory reporting” laws, nearly all of which seek to protect children47 and others who have significant legal dependencies, such as the elderly or persons with certain disabilities.48 For the most part, mandatory reporting exists for these groups because of their greater vulnerability, which comes in part from their legal dependence on others. However, college victims are adults without legal dependencies. They are as capable of deciding whether they should go to police as, for instance, an adult male student who experiences a violent mugging or a non-student adult victim of sexual violence, neither of whose report would be mandatorily referred to law enforcement. Thus, mandatory referral would treat student survivors legally as children without any reasonable justification for doing so. Differential treatment without a reasonable justification falls under the definition of discrimination.49 That those infantilized in this manner are mainly women and girls makes mandatory referral proposals particularly contrary to Title IX’s purposes.

Even if mandatory referral did not directly discriminate in this fashion, it practically discourages many survivors from reporting. It does so in two primary ways, both of which occur when criminal law processes are substituted for Title IX’s equality-based processes, which is the de facto effect of mandatory referral. First, the criminal process gives victims little control over fundamental decisions about the investigation and prosecution of their reports, including decisions about protecting their privacy. It is thus riskier for a survivor to report through the criminal justice system than through a Title IX process, because Title IX empowers victims, not police and prosecutors, to make fundamental decisions regarding the handling of their reports.50 Second, while the potential risks to survivors are higher, the likely benefits are fewer, because the criminal system is not structured to provide victims with the services, resources, and remedies for halting the effects of trauma that Title IX requires schools to provide.

These different risks and benefits increase the likelihood that survivors will choose to report through a Title IX process, but because mandatory referral makes a Title IX report into a criminal report, it essentially eliminates the lower risk-higher benefit option. Thus, mandatory referral increases the likelihood that victims who do not want to report to law enforcement will not report to anyone, thereby restricting access to the legal rights that Title IX, as well as the Clery Act and VAWA, provide. This loss is particularly damaging because the legal rights that these laws provide do not exist under criminal laws. In addition, without reporting, neither survivors nor the community as a whole can identify the person who committed the violence. To the extent that mandatory referral discourages reporting, then, it increases the violence’s harm to the victim(s) as well as to society as a whole.

We know that mandatory referral discourages victim reporting because research shows that the rates of reporting to law enforcement are quite low. The authors of The “Justice Gap” for Sexual Assault Cases: Future Directions for Research and Reform aggregate data from multiple studies to show that victims report sexual violence to police somewhere between five and twenty percent of the time.51 Professor Douglas Beloof explains that these low rates reflect a collective rejection by victims of the criminal system and the lack of control it provides victims: “The individual victim of crime can maintain complete control over the process only by avoiding the criminal process altogether through non-reporting.”52 In discussing why a victim might “exercise th[is] veto” over reporting a crime, Professor Beloof lists several reasons including

the victim’s desire to retain privacy; the victim’s concern about participating in a system that may do [her/him] more harm than good; the inability of the system to effectively solve many crimes . . . ; the inconvenience to the victim; the victim’s lack of participation, control, and influence in the process; or the victim’s rejection of the model of retributive justice.53

This analysis acknowledges that, in the criminal system, the survivors do not decide how their reports will be handled—police and prosecutors decide if and how a case will be investigated and prosecuted. In contrast, OCR’s Title IX guidance empowers survivors to initiate an investigation—or not, as they choose. According to this guidance, each school is required to communicate to students a reporting system that includes two paths very similar to the “restricted” and “non-restricted” reporting system used in the military. This system gives victims two reporting choices, one confidential (analogous to the military’s restricted path) and one not (non-restricted). Survivors who choose the non-confidential path initiate an investigation by making an official report that will be forwarded to the Title IX Coordinator, who must investigate unless the victim explicitly requests otherwise and the Coordinator grants that request. Victims who choose to disclose to a confidential person or office get access to services and accommodations, and this disclosure does not result in an investigation unless a victim later decides to change the report to a non-confidential one.54 In addition, survivors retain a certain amount of control even after an investigation is initiated because Title IX and the Clery Act follow principles of procedural equality.55

By reporting via either Title IX path, survivors also gain access to a whole range of services, accommodations, and resources that the criminal justice system cannot provide because it is not designed to provide them. Under both Title IX and the Clery Act (as amended by VAWA), schools must provide supportive and protective measures such as stay-away orders, changes in classes or housing, and various prevention and educational programs.56 These services and accommodations are vital to restoring survivors’ equal educational opportunity, but survivors cannot access them unilaterally because they require action by school officials to, for instance, change class schedules, move students to new housing, or authorize a tuition refund. Therefore survivors cannot access these services without reporting to their school. Because mandatory referral turns a report to the school into a report to law enforcement, and law enforcement may investigate regardless of a victim’s wishes, victims who do not want a law enforcement investigation would have to forego reporting to the school as well, making it impossible for those victims to access the services and accommodations that Title IX guarantees. Because the criminal justice system does not—and structurally cannot—provide those services and accommodations, mandatory referral could thus entirely foreclose survivors’ ability to access those important Title IX rights or any comparable rights.

Without access to such services and accommodations, studies show that many survivors are at serious risk of experiencing a downward spiral of damaging health and negative economic and, in the case of students, educational effects. As Dana Bolger’s Title IX Conversation research confirms, and as corroborated by Alyssa Peterson, Olivia Ortiz, and Zoe Ridolfi-Starr in their Conversation Features, these effects are very real, very discriminatory, and potentially life-derailing.57 Previous research also documents the grave health consequences of sexual violence, including increased risk of suicide, substance use, pregnancy, and unhealthy weight control and sexual behaviors.58 Such studies estimate that the cost of rape and sexual assault (excluding child sexual abuse) to the nation is approximately $127 billion annually in 2012 dollars, the highest victimization cost in the United States, some $34 billion more than the next highest (all crime-related deaths except drunk driving and arson).59

Bolger’s research further confirms what other researchers have shown: current student survivors face trauma-induced health and educational problems such as declines in educational performance, the need to take time off, dropping out of school, and transferring schools.60 These health and educational effects feed potentially devastating financial consequences. Student survivors can lose financial aid, which may include valuable scholarships requiring a high level of academic performance that experiencing trauma makes challenging to achieve, at least in the short term.61 Survivors can lose valuable tuition dollars spent on classes that their health makes them unable to finish at all or finish on time. Research with student and employed survivors shows an even more negative impact on those victims who have fewer economic resources.62 Such disparate impacts likely occur with student survivors who are first generation college students, are on immigrant visas, are undocumented, or otherwise face pre-existing barriers and challenges to going to college in the first place.63 It is probable that these students will have less access to individual and family resources that they can use to overcome trauma and get their educations and lives back on track. In the long term, these negative educational consequences likely translate into lower earnings, as lower grades lead to lower-paying jobs and more difficulty gaining admission to graduate programs that feed into high-paying jobs.64

For all of these students, and especially for the ones most vulnerable to intersectional discriminatory consequences, Title IX’s requirement that schools provide victims with services and accommodations that can help restore normalcy to survivors’ educations and lives is deeply important. The push to criminalize Title IX by mandating that school officials refer student reports of gender-based violence to law enforcement forces survivors to make an often impossible choice that frequently creates insurmountable barriers to accessing these critical services and resources. The fact of the matter is that student survivors always have the option of reporting to the police. But forcing them to do so by infantilizing them, as mandatory referral does, is against our fundamental commitment to equality and is highly likely, in practice, to reduce already low rates of reporting even further. Instead, we should be looking, as Catharine MacKinnon did in her presentation for the Journal’s Title IX Conversation, to equality-based approaches for addressing and ending gender-based violence.65

III. affirmative consent

MacKinnon’s search for equality-based approaches brings this Essay to the final area in which recent legislation has been influenced by criminal legal concepts and distracted us from Title IX’s status as a civil rights law: state legislative mandates that colleges and universities adopt “affirmative consent” policies. In critiquing the deliberate indifference standard used in private Title IX sexual harassment lawsuits, Mackinnon advocates that Title IX jurisprudence66 instead adopt the excellent, equality-based due diligence standard of international human rights law.67 For similar reasons, the Title IX movement should approach the adoption of “affirmative consent” laws and policies with extreme skepticism. Instead, it should look to the “welcomeness” standard in sexual harassment law to achieve the policy goals that appear to be motivating the move towards affirmative consent. While continuing to advocate for affirmative consent may have some usefulness, that advocacy should seek to amend state criminal codes to adopt affirmative consent standards, not inject affirmative consent standards into Title IX’s equality-based system.

The first and umbrella reason why affirmative consent is inappropriate for Title IX systems is that “consent” is a criminal law concept.68 Robin West explains: “[T]he absence or presence of consent demarcates, broadly and imperfectly, sex that should be regarded as criminal from that which is not.”69 Therefore, using any definition of consent to define violations of Title IX will criminalize Title IX, thus undermining Title IX’s purposes in similar ways to those discussed in Parts I and II.

Moreover, West points out that the line between consensual and non-consensual sex is often used as a proxy for differentiating harmful from non-harmful sex, encouraging the view that if sexual activity is consensual, it must be good, as in not harmful.70 When viewed from this lens, the push towards making consent affirmative—i.e., requiring any sexual activity regarded as sitting on the consensual side of the demarcation to have occurred based on an affirmative indication by all those participating that “yes,” they want to engage in this sexual activity—is a push to redefine what sex is harmful and what is not.

However, there are other legal ways and reasons to draw this line, and recent state legislation requiring colleges to adopt “affirmative consent” policies forgets these other options.71 In fact, schools and other entities that are governed by civil rights laws prohibiting sexual harassment have always been required to use the welcomeness standard, which does not rely on consent and which differentiates between harmful and non-harmful sexual activity according to equality purposes and principles.

Laws prohibiting sexual harassment, Title IX included, prohibit sexual attention and activity that is not welcomed or is unwanted by the person towards whom the attention or activity is directed. The differences between welcomeness and consent were discussed as early as the 1986 case Meritor Savings Bank v. Vinson,72 in which the Supreme Court established the claim of hostile environment sexual harassment. The Court stated that “the fact that sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’”73 Lower courts, including several courts of appeal cases decided as recently as 2014, have repeatedly made this distinction, primarily in workplace sexual harassment cases.74

In its Title IX guidance, OCR has adopted the welcomeness standard articulated by Vinson and developed in later case law. In its 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students of Third Parties, OCR has stated that “[c]onduct is unwelcome if the student did not request or invite it and ‘regarded the conduct as undesirable or offensive.’”75 Citing Vinson’s distinction between voluntariness and welcomeness, and noting that fear of retaliation, increased harassment by other students, or negative treatment by teachers or other adults could keep a student from openly objecting to or complaining about harassment, OCR also makes clear that “[a]cquiescence in the conduct or the failure to complain does not always mean that the conduct was welcome.” Finally, OCR rejects the following circumstances as necessarily proving welcomeness: “that a student . . . accepted the conduct” or “willingly participated in conduct on [past] occasion[s]”which “does not prevent him or her from indicating that the same conduct has become unwelcome on a subsequent occasion.”76

The current focus on affirmative consent seems to indicate that most schools were neither aware of nor using the welcomeness standard, and thus a reasonably strong, practical argument can be made that affirmative consent at least brings university conduct policies much closer to the welcomeness standard than before. The benefits of this shift are demonstrated in a case that wended its way through the Iowa state courts before the Iowa Court of Appeals finally declared it moot in July 2015 because both students involved had graduated.77 In that case,78 a male Iowa State University (ISU) student (and star basketball player), Palo, and a female ISU student, Doe, met up after a night of partying separately. They had been exchanging text messages, none of which mentioned having sex. They previously had a brief consensual sexual relationship, but Doe was dating someone else by the time this meeting occurred.

Palo brought another man, Cruise, to the meet-up, whom Doe also knew but who was not an ISU student. The three went to a vacant house, and Palo and Cruise asked Doe to engage in a “threesome.” She said “no.” At this point, Cruise raped Doe,79 who said “no” clearly and cried throughout the attack, while Palo walked in and out of the room. After Cruise had completed the rape, he told Palo it was “his turn.” Palo then had sex with Doe—according to him, at this point she said neither “no” nor “yes.”

The Iowa administrative law judge and district court that considered the case appeared to agree that Iowa’s criminal standard required Doe to have said “no” to Palo and to have assumed that Palo was not responsible for criminally sexually assaulting or raping Doe. ISU, however, applied its internal affirmative consent policy, which required a “yes” in either words or actions. It found that Palo violated the policy because, as both parties agreed, Doe never said “yes.” The University President further found that, to the extent Doe was silent and unresisting during Palo’s assault, she was in shock from the trauma of Cruise’s rape and that under the circumstances it would be unreasonable to think Doe affirmatively wished to have sex with Palo. Thus, the University’s standard facilitated a more accurate result, and gave Doe some measure of justice. She also received services at and through ISU that allowed her to graduate from ISU on time. Had the case ended there, it would have reached a result that was basically in keeping with Title IX’s requirements. Instead, Palo used state law mechanisms to challenge the university’s decision and keep ISU in court for nearly three years defending its policy.80

If ISU had been allowed to apply its own policies, the result that ISU reached in the Palo case would have showed the promising aspects of affirmative consent, and its example adds strength to the arguments that many activists and lawmakers have advanced81 while pushing for affirmative consent policies. But when the trend of affirmative consent school policies is looked at in the aggregate and in the context of Title IX’s purposes and requirements, there is unfortunately more cause for concern than for hope. Although university affirmative consent policies approach welcomeness, even at their most robust, affirmative consent would not adequately advance Title IX’s equality principles.

Most importantly, affirmative consent could legitimate sexual behavior that the welcomeness standard would still treat as harmful and unequal. Whereas consent standards judge the victim’s behavior and only consider whether that behavior indicated consent from the accused assailant’s point of view, welcomeness takes a more equal approach by looking “to whether conduct is both objectively and subjectively unwelcome and offensive.”82 As the First Circuit put it in an early case, “[i]n some instances, a woman may have the responsibility for telling the man directly that his comments or conduct is unwelcome. In other instances, however, a woman’s consistent failure to respond to suggestive comments or gestures may be sufficient to communicate that the man’s conduct is unwelcome.”83 The court ultimately advised that “the fact finder [must] keep[] both the man’s and the woman’s perspective in mind.”84 Other U.S. Courts of Appeals have confirmed that “a defendant’s lack of subjective knowledge as to whether his advances were unwelcome or were serious enough to affect a term or condition of employment is not determinative,”85 and the welcomeness standard allows the “classif[ication of] conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment.”86

Several cases have specifically discussed welcomeness in the context of gender-based violence like sexual violence or stalking behaviors, such as in a case where a supervisor “pressured and coerced” the plaintiff to come to his house on several occasions where he then isolated and sexually assaulted her.87 While the Tenth Circuit expressed skepticism as to “whether sex-related conduct with one’s supervisor is truly ‘voluntary,’”88 it ultimately relied on Vinson to decide that the plaintiff’s “‘voluntary’ acts in going to [the supervisor’s] house [did] not make her unreasonable as a matter of law.”89 In two cases where a plaintiff ended a previous, consensual sexual relationship with a male employee, and the male employee began harassing the plaintiff, the courts did not rely exclusively on the harasser’s point of view, but found the conduct unwelcome based on the plaintiff’s “unresponsiveness” to sexual advances,90 rejecting as an excuse for the harassment “a defendant’s lack of subjective knowledge as to whether his advances were unwelcome or were serious enough to affect a term or condition of employment.”91

Given that welcomeness already includes, and indeed goes beyond, the protections provided by affirmative consent, recent moves to require schools to adopt affirmative consent into their sexual harassment policies are at best duplicative and at worst undermine the welcomeness standard. Nevertheless, cases like Palo suggest that there is still something significant to gain from instituting an affirmative consent policy. The question is how the Title IX civil rights movement should deal with this dilemma.

This Essay concludes by briefly suggesting two methods for activists to consider. First, the lessons of cases like Palo and the victories of the Title IX movement thus far could be leveraged to press for direct changes and reform of consent standards in state criminal codes. Affirmative consent offers a perspective and approach that could improve the way our nation conceives and addresses sexual and other forms of gender-based violence in the criminal system. Second, the Title IX movement could push law and policymakers to amend the laws and policies that have recently put affirmative consent standards in place for educational institutions. These policies could and should instead refer to welcomeness, a change easily made by replacing all policy references to consent with references to welcomeness, and prohibit, consistent with Title IX, unwelcome sexual attention and activity.92

Conclusion

The Yale Law Journal’s Conversation on Title IX demonstrated the power and influence that the remarkable student violence-survivors-turned-activists-and-policymakers have developed over the last several years. This contemporary civil rights movement cannot and should not limit the pride they feel in these admirable accomplishments. Nevertheless, the movement must remain vigilant towards forces hostile to its goals of advancing equality and ending gender-based violence and other forms of discrimination. Some of the most insidious of these hostile forces are found in efforts to criminalize Title IX’s substantive and procedural standards. Three current examples include the attempts to import criminal due process requirements into Title IX investigations and grievance procedures, to mandate that school officials refer all reports they receive to criminal law enforcement, and to replace the Title IX equality-based standard of welcomeness with the criminal law’s affirmative consent standards.

We should start opposing these criminalization efforts by consistently articulating their incompatibility with Title IX and other civil-rights-, equality-based approaches and working to prevent proposals that would criminalize Title IX from being passed into law. In addition, the movement should consider using the lessons learned from affirmative consent policies to reform state criminal laws, while at the same time replacing references to affirmative consent in the laws and policies applicable to educational institutions with the more equal and more accurate welcomeness standard.

Nancy Chi Cantalupo is Assistant Professor of Law, Barry University Dwayne O. Andreas School of Law; B.S.F.S., Georgetown University; J.D., Georgetown University Law Center. Her most heartfelt thanks and admiration go to Know Your IX co-founders Alexandra Brodsky and Dana Bolger and to all of the student survivors and their supporters who are organizing with groups like Know Your IX, taking our nation by storm with their extraordinary courage, intellects, and movement. In addition, she is enormously grateful to all of the professional colleagues, including Alexandra and Dana, who have helped her develop the ideas and analysis in this Essay over the last three years of truly frenetic work to begin addressing the epidemic of gender-based violence in our schools. Her top shout-out goes to her wonderful colleagues at the Victim Rights Law Center: Stacy Malone, Lindy Aldrich, Jessie Mindlin, and Colby Bruno, whose support and work have positively changed her life almost as much as they have the lives of the VRLC’s clients! She also thanks the extraordinarily committed members of the White House Task Force to Protect Students from Sexual Assault, especially Lynn Rosenthal, Demetra Lambros, and Carrie Bettinger-Lopez; her co-Negotiators for the VAWA/Clery negotiated rulemaking, particularly Alison Kiss, Holly Rider-Milkovich, Laura Dunn, and Fatima Goss Graves; fearless victim’s advocate Susan Landino; her new colleagues Dean Leticia Diaz and Professor Leonard Birdsong; and policy experts Lisalyn Jacobs and Anne Hedgepeth. Finally, she is ever thankful for the intellectual engagement, challenges, and support given to her for so many years by Professors David Super, Victoria Nourse, and Robin West.

Preferred Citation: Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L.J. F. 281 (2016), http://www.yalelawjournal.org/forum/for-the-title-ix-civil-rights-movement-congratulations-and-cautions.