ABA Approves CLA-Sponsored Resolution on Title IX Enforcement

The California Lawyers Association sponsored Resolution 802, which was approved by the American Bar Association’s (ABA) House of Delegates at the ABA 2021 Annual Meeting in Chicago on August 9. The House of Delegates is the policy-making body of the ABA. 

Resolution 802 supports bringing off-campus conduct back into the fold of Title IX, the 1972 federal law banning sex discrimination in education. The resolution also urges an interpretation of Title IX that is consistent with the plain language of the statute in that it does not distinguish between student and non-student victims. The resolution is aligned with CLA’s mission of improving the administration of justice. It was also approved by the CLA Board earlier in 2021. 

By way of background, in May of 2020, the Department of Education issued Final Rules on Sexual Harassment that restricted the responsibility of educational institutions to investigate and address sexual harassment that occurs off-campus, and eliminated the responsibility to address sexual harassment that occurs outside of the United States. In April of this year, the department announced it would conduct a comprehensive review of its Title IX regulations. Because that review is ongoing, the resolution is well-positioned to contribute meaningful solutions to the problems of sexual assault and sexual violence.

The approach advocated for in Resolution 802 demands that the focus not be on the control over a victim’s educational context, but instead whether a school has control over a perpetrator. One cannot ignore the risk to campus safety that results from turning a blind eye to allegations of misconduct perpetrated by members of a campus community simply because the alleged victim is an outsider. A Title IX consistent with Resolution 802 will protect high school athletes and recruits who attend on- and off-campus parties, as well as high school students who visit college campuses. It will protect students who attend programs run by entities that lease or use campus facilities, and those who study abroad.

Resolution 802 was conceptualized by CLA member Ireneo Reus. CLA Member Stephanie Joseph was the principal drafter of this resolution, and she was assisted by CLA members Skyler Gray and Xiner Ning. The resolution was presented to the ABA House of Delegates by CLA President Emilio Varanini, and Beth Whittenbury.

Resolution 802 was the product of extensive consultation with Title IX experts across the country including, but not limited to, Professor Hannah Brenner Johnson from California Western School of Law, Jessica Stender from Equal Rights Advocates, and Kristen Gales from the ABA’s Section on Civil Rights and Social Justice. 

The resolution was co-sponsored by the ABA Commission on Domestic and Sexual Violence, and the ABA Commission on Sexual Orientation and Gender Identity, and was supported by the ABA’s Section on Civil Rights and Social Justice, and ABA Commission on Women in the Profession. 

The full resolution and report can be viewed here: https://www.americanbar.org/content/dam/aba/administrative/news/2021/08/annual-meeting-resolutions/802.pdf