Since a youth-led movement made Title IX a household name in the early 2010s, student survivors have regarded schools’ mechanisms for reporting sexual harassment under Title IX—which includes rape, sexual assault, dating and relationship violence, and stalking—as a tool to advance gender equity. But recent backlash by men’s rights advocates, fueled by a nationwide revolt against the #MeToo movement, gained substantial footing when Trump Administration Secretary of Education Betsy DeVos handed anti-survivor voices a seat at the political table. Now, more and more, survivors find themselves as the subjects of sexual harassment investigations by their schools; abusers and rapists seeking to exact revenge—and draw out the abusive dynamic they have crafted—are punishing survivors who exercise their Title IX rights by weaponizing the system using retaliatory crossclaims.
Title IX of the Education Amendments of 1972 guarantees that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Courts have determined that this prohibition imposes an obligation on a school receiving federal funds to respond in a manner that is not deliberately indifferent when it has actual knowledge of a report of sexual harassment. Under the 2020 Title IX regulations promulgated by Secretary DeVos’s Education Department, schools must adhere to demanding procedures—including a live-hearing with cross examination by each party’s chosen representative, who may but need not be an attorney—in responding to reports of sexual harassment.
As the procedures utilized by schools are manipulated to look more and more like courts (though lacking many of the basic protections provided in actual courts), perpetrators of sexual harassment in schools are following suit, taking a page from domestic abusers’ court playbooks: litigation abuse. Litigation abuse, which involves an abuser’s attempt to maintain power and control over a survivor using the legal system, is a tactic that domestic abusers have leveraged in protection orders, divorce, and custody matters for decades. While sexual harassment complaints to schools under Title IX are not “litigation,” abusers have seamlessly transitioned and adopted the abusive tactic of retaliatory crossclaims. A 2020 survey conducted by Know Your IX found that nearly 10% of survivors who took the survey experienced retaliatory crossclaims, defined as an affirmative response to one of the following prompts:
(1) perpetrator found out I was going to file [a complaint with the school] and so raced to file one against me first; or
(2) perpetrator filed a Title IX complaint against me (after mine)
Of those survivors who endured retaliatory crossclaims, half were effectively pushed out of school, either taking a leave of absence or transferring institutions. These numbers make clear that retaliatory crossclaims undermine Title IX by using schools’ Title IX enforcement mechanisms to perpetuate—rather than root out—gendered inequities. But schools, which obviously prefer to minimize their exposure to liability in order to save money, fear lawsuits by abusers, who are increasingly taking to court to complain that actions enforcing Title IX constitute gender discrimination against them. Schools’ fear of lawsuits by this highly litigious contingency leads them to retreat from naming the abusive dynamic at work, instead enabling it by entertaining even blatantly retaliatory crossclaims. Student survivors are left to fend for themselves, face to face with an abuser intent on wielding against a survivor the process actually meant to protect that survivor.
The Department of Education could address this issue through a new regulation. Until then, if you are a student survivor of sexual assault, rape, or dating or relationship violence facing a retaliatory crossclaim by your abuser, you need an advocate who understands the power and control dynamic at play and recognizes the ways litigation abuse may manifest in school sexual harassment proceedings. At KCNF, our attorneys have a keen eye for abusive dynamics and are committed to holding schools accountable to their obligations under Title IX—even when abusers try to weaponize the process itself. Contact us for a free intake today.