What They Don’t Know Might Hurt You: Avoiding the Negative Impact of Journalistic Rushes to Judgment on Your Title IX Process
By Jackie Gharapour Wernz
The renowned journalist and activist Ida B. Wells once said, “The people must know before they can act, and there is no educator to compare with the press.”
Today, however, journalism is quite different from before the turn of the century. Almost any story can be published, with no requirement that the writer understands, let alone includes, the full context of the issue. “Stories” sometimes “break” on social media threads, with no author or editor in sight to control unfettered opinions from being mistaken for “news.” And even in more established publications, the desire to offer the most sensationalistic coverage in the shortest amount of time creates an environment in which presenting the whole picture is often not the goal.
The result in situations involving Title IX can be disastrous for schools, colleges, and universities. News outlets, bloggers, and social media posters present an incomplete and often inaccurate account of the Title IX process to your community. The results can range from a turnover churn of Title IX administrators (with recent reporting suggesting two-thirds of Title IX coordinators have been in their position for more than three years) to bomb threats.
What are the risks, and how can your school district, college, or university defend against or deal with such an incident?
Case In Point
A May 4, 2022 article in the Cornell Daily Sun, which bills itself as “the nation’s oldest, continuously independent college daily,” is one of many examples of journalism we see in this realm. Although the story, “A Student’s Experience with the Title IX Office,” explicitly deals with the personal account of one student, it is written in the style of an objective news story, not an opinion piece.
The story relays several concerns that the student, an alleged victim of sexual harassment at the university, had with the Title IX process. Examples include frustration with the lack of “urgency” in the process and the inability to have the alleged perpetrator entirely removed from campus based on the allegation alone.
The university did more than most in rebutting the issues raised in the story. A Title IX administrator explained in the piece that the Title IX process is not instantaneous. The article says the administrator also explained to the complainant in a recorded meeting that the conduct alleged, even if proved, would not implicate Title IX. It seems likely that the behavior, even if true, was not sufficiently severe, pervasive, and/or objectively offensive to rise to the level of a Title IX violation.
But the overall point of the story is to suggest that this university chose not to respond to the complainant more quickly and chose to allow an alleged perpetrator to remain at school despite reports of misconduct. That’s not likely the truth.
The Process is the Problem
Anyone with a basic understanding of the Title IX process in schools, colleges, and universities knows that many of the critiques in stories like these are criticisms of the Title IX process laid out in the 2020 Title IX regulations, not a criticism of the school itself. Schools, colleges, and universities have no control over whether they comply with the 2020 Title IX—they must do so or risk losing federal funding.
For example, the 2020 Title IX regulations require schools to move at a glacial speed when responding to complaints of sexual harassment. It’s not a choice—it’s the law. And the Title IX process indeed allows emergency removals for alleged perpetrators in cases in which there is an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment. But that would not apply in a case where, as here, the allegations were of “months of text messages, verbal altercations and conversations with the same individual.” Even if it triggered Title IX, such conduct would not warrant an emergency removal. In such a case, Title IX would prohibit removing a student from campus based on an allegation alone.
The Tip of the Iceberg
A minimal investigation by the reporting teams writing stories like this would lead to a much more complete story. Such a story would tease out which complaints about a Title IX program are due to that program and which are due to the 2020 Title IX rules. Unfortunately, that does not happen often.
If this type of rush to judgment is what we can expect from an Ivy League school that has one of the top-ranked journalism programs in the country, it’s not surprising that we see an even lower level of concern for providing the full context from other school publications and, even more so, from Twitter threads and local news outlets and the like. The Cornell example is genuinely just the tip of the iceberg of a much bigger program.
Defending Against Journalistic Rushes to Judgment
What can your school, college, or university do to avoid and deal with such journalistic rushes to judgment? Here are some thoughts:
- Educate your Local Media. Have someone from the Title IX office develop a relationship with your local news sources—both on campus and off. Help them understand the full context of the law and its requirements, as well as how to find more information if they need it. We can assist you with these delicate conversations as needed.
- Stock Up on Training. Another preventative measure is training for your Title IX team. When complaints are raised against your coordinators, investigators, and other team members, one of the most effective defenses is showing how well trained your Title IX team is. And quality training, such as that offered by our team, should consider some of the most common criticisms of Title IX programs to help avoid them. If you have not scheduled your Title IX training for the summer or fall, contact us at titleIX@thlaw.com for information about our training programs.
- Remember the Great Resignation. When media, whether traditional or social, raises criticisms about your program, it may be tempting to look for someone to blame within your program to create a scapegoat for them. Before you do, please keep in mind the great resignation. I have seen schools unable to fill Title IX team member positions with qualified candidates for months and, in some extreme cases, even longer. Yet I have seen incredibly qualified Title IX coordinators pushed out of office based on the types of journalistic rushes to judgment like those described here. What else can you do instead?
- Share Your Side. Even if the situation warrants consequences for a Title IX team member, ensure that there is a “there there” before such a drastic response. A couple of years back, UCLA learned of a social media post recounting an individual experience with their Title IX office after reports of sexual assault. Their response is an excellent example of how you can speak up to share your institution’s side of the story to set the record straight about purported concerns.
Although nothing can completely neutralize a case of journalistic rush to judgment, these steps will help minimize the damage such an incident has on your Title IX apparatus. If you have any questions about these steps, you can always reach me at email@example.com or titleIX@thlaw.com.