Education Secretary Betsy DeVos announced last week that the Trump administration plans to revise Obama-era federal guidelines for colleges and universities on handling sexual misconduct.
It is currently unclear exactly what changes DeVos has in mind, but they will presumably have significant consequences that could affect student journalists writing about sexual violence.
When Title IX was passed in 1972, it wasn’t intended to address sexual misconduct—the term “sexual harassment” wouldn’t even be coined until three years later. The massive expansion of the law’s scope since that time has resulted in far stronger support for survivors, but it has also introduced ambiguities that leave room for misinterpretation.
With that in mind, here is an overview of how the current system affects student reporting and where there is room for potential change.
Not-So-Open Records
College administrators have used Title IX to block requests for incident records.
At Central Michigan University, administrators cited Title IX restrictions to deny open records requests from Central Michigan Life about where sexual assaults were occurring on campus.
Sydney Smith, managing editor of the paper, told the SPLC last October that “each time my requests were denied for the exact same reasons: invasion of privacy for those named in the report — even though I asked that the names be redacted — in violation of Title IX.”
Administrators argued that even with redacted names, the data Smith was requesting could allow people to connect the dots and compromise survivors’ privacy.
“Imagine the massive chilling effect this would have on the reporting of rapes and other forms of sexual assault,” said CMU spokesperson Steve Smith.
Sydney Smith didn’t buy this justification. “I was told that obtaining police reports of assault was a ‘gray area’ of the law and Title IX required the university to be less transparent,” she said. “I highly doubt that is what lawmakers intended.”
Similar situations have played out at the University of North Carolina—Chapel Hill and the University of Kentucky.
North Dakota officials took matters a step further by enshrining Title IX shields into law: Senate Bill 2295, signed this past April, exempts schools from having to disclose documents relating to Title IX investigations in response to open records requests.
Lisa Feldner, chief of staff of the North Dakota University System, argued that this is necessary because the state has so many small schools. “We have one under 500 students,” she told the SPLC. “So when you have a Title IX investigation, even if you, by FERPA, redact the person’s name, everybody’s going to know who it is.”
However, Steve Andrist, executive director of the North Dakota Newspaper Association, argued that it is important for this information to be in the public record. “We shouldn’t be eliminating an entire class of information to protect the privacy of students whose privacy are protected anyway,” he said.
Can a Newspaper Commit Sexual Harassment?
Administrators at multiple colleges have cited Title IX in accusations that provocative articles from student newspapers constitute sexual harassment.
At Michigan Technological University, the Daily Bull, a satirical paper, was sanctioned in 2015 after publishing an article with the headline “Sexually Harassed Man Pretty Okay with Situation.”
The university placed the publication on probation, and the student government reduced its funding and required its staff to attend a Title IX training course, a violation of legal precedent.
In an interview with the Daily Mining Gazette, MTU’s Vice President for Student Affairs Les Cook made the erroneous legal assertion that Title IX negates the Daily Bull staff’s First Amendment rights. “[The Constitution] doesn’t supersede it,” he said. “Title IX is a federal compliance policy. Those policies supersede anything else.”
At the University of Alaska-Fairbanks, sociology professor Sine Anahita sued the Sun Star for sexual harassment in 2013 over two of its articles. One was an investigative article which contained screenshots of online harassment that revealed the names of the targeted students; the other was a satirical April Fools’ Day article announcing the construction of a vagina-shaped building.
The professor argued that the paper’s coverage constituted sexual harassment under Title IX, triggering an investigation that lasted nearly a year. The university ultimately dismissed her complaint, though, and an external review for which Anahita appealed concurred, writing that “Title IX allows a range of expression and conduct that some people will find offensive.”
SPLC staff writer Samuel Breslow can be reached by email or (202) 974-6318
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