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There's a "nuclear option" on college sexual assault — and it will never be used

A student at Occidental College wears a blue ribbon painted on her face to raise awareness of sexual assault.
A student at Occidental College wears a blue ribbon painted on her face to raise awareness of sexual assault.
Bloomberg via Getty Images

The Obama administration is investigating nearly 70 campuses for mishandling sexual assault complaints, and has started a nationwide campaign — "It's On Us" — to teach bystander prevention.

But some advocates for victims of sexual assault would like to see them do more than just offer help and proactive campaigns. The problem is that the federal government really only has one way to punish colleges for not dealing with sexual assault. It's so severe that it's described two ways: the nuclear option or the death penalty.

How Title IX works

The Education Department has the authority to oversee colleges' handling of sexual violence and other gender issues under Title IX, which is better known for requiring equal opportunities for men and women when playing sports. Title IX forbids gender discrimination in education more broadly, and that includes a responsibility to protect students from sexual assault or violence.

But while the federal government has authority over many areas of higher education, it doesn't have always have a lot of ways to punish colleges if they don't comply with laws or federal regulations.

Colleges can be fined for violating the Clery Act, which requires them to report and publicly disclose crimes, including sexual assault, that happen on campus. And those fines can sometimes be large: The largest fine to date was levied on Eastern Michigan University, which had to pay $350,000 for 13 Clery Act violations; Oregon State paid more than $220,00 for reporting "extremely inaccurate" data on crime on campus.

But colleges can't be fined for violating Title IX. Instead, the Education Department and universities end up reaching voluntary agreements on what colleges will do in order to behave better in the future. Often, what colleges have to do is costly — they have to hire more staff or provide additional training in responding to sexual assault.

This arguably does more good than a simple fine; the money goes toward actually changing things on campus. But it also helps the colleges save face. Voluntary agreements often include quotes from federal officials who say they "applaud the effort" a university is making to prevent sexual assault and saying they look forward to continuing to work together. It's hardly a public relations coup, but it doesn't always look like a punishment, either.

And most Title IX complaints don't even get to that stage. The vast majority are dismissed, because they weren't filed on time, because the case doesn't fall under the Education Department's jurisdiction, because the complaint has already been handled, or because the college reaches an agreement to change before the investigation is complete.

The 'academic death penalty'

There is another option besides voluntary agreements: a program found in violation of Title IX can lose its federal funding. That's a punishment that makes even the largest Clery Act fine seem like a parking ticket.

Colleges would lose access to federal student grants and loans — the lifeblood of colleges that are dependent on tuition, which includes all but the colleges with the largest endowments. Federal research funding could also be at risk. The results would be so dire, essentially shutting a college down and putting thousands of students' education at risk, that this punishment has never been used. And no one seriously thinks it ever will be.

That leaves the question of just how effective a threat can be if no one, including the colleges who would suffer, really believes the government would carry it out. Some in Congress would like the department to be able to a less-nuclear option, like punish colleges by only taking away a small portion of their federal funding. A Senate bill would allow the department to fine colleges up to 1 percent of their annual budget for Title IX violations.

But for now, the Obama administration has three main tools. It can issue guidance telling colleges how to better comply with the law. It can reach voluntary agreements with colleges who pledge to do better. And it can use the power of the White House for a massive public relations campaign. So far, it's made a bigger splash with the latter.