This is the first column in a three-part series on sexual assault on campus by Vitae columnists Annie E. Clark and Katie Rose Guest Pryal.
As a member of a college or university community, you’ve no doubt heard a lot lately about the topic of sexual assault on campuses. You may have heard about Emma Sulkowitz, carrying a mattress around Columbia University as both an art project and as a protest against being forced to attend class with her alleged rapist. You may have read the now-discredited rape story published in Rolling Stone, which went on to blame a rape victim for its own reporter’s failings. You might have read summaries of the leaked transcript from the high-profile case out of Florida State. Maybe your institution’s Title IX coordinator sent out a universitywide email about your new obligations in interacting with students—and those obligations seem a little heavy.
We’re here to help you make sense of all of this new information. We’re writing both as experts on campus rape, and as survivors. Within a year of each other, the authors of this piece were both raped while college students. We both reported our rapes to campus authorities. Years later, we also both published stories about reporting rape (Annie, Katie), hoping that our own experiences would help catalyze change. Annie later helped found a national organization, End Rape on Campus that is leading the charge in filing Title IX complaints against campuses on behalf of rape survivors.
This three-part series seeks to explain how faculty members can help students know their rights under Title IX and how Title IX can give them the tools to make their campuses safer. Here we provide a primer on the new ways that campuses are approaching sexual assault.
1. What is Title IX?
When people hear about campus rape and Title IX, often the first thing they ask is, “Isn’t Title IX about sports?” Title IX is not just about sports. In fact, it doesn’t even mention sports. The text of the law, more specifically of Title IX of the Educational Amendments Act of 1972, is in fact very short. It reads, in its entirety:
“No person in the United States shall, on the basis of gender, 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.”
In 1972, when that language was written, it was meant to ensure that women had equal access to federally supported educational programs. Today, activists are using Title IX to hold their institutions accountable for not supporting survivors of sexual violence.
2. Why is Title IX involved at all with campus sexual assault?
Since Annie helped lead the movement that brought Title IX into play on this front, she’ll tell this part of the story.
Annie: In 2012, a survivor of campus rape reached out to me from the University of North Carolina at Chapel Hill. She’d tried to report her rape, and the university told her “she was just being lazy,” and that “maybe she couldn’t handle Carolina.”
She called me because I was once an undergraduate at Chapel Hill. After I was raped, I had taken the same steps as the 19-year-old student who contacted me:
Step 1: Go to the university administration, and ask for change.
Response: They say no.
Step 2: Get your fellow students together and push for change. Protest. Write. Speak out.
Response: They say no, and wait for you to graduate. (Rape survivors many times get silent, drop out, don’t publicly identify themselves, etc.)
Knowing I’d worked to change policy at Chapel Hill, the student called me to brainstorm her concerns about how the university was handling sexual assault. At the time, I was working as a low-level administrator at the University of Oregon and noticing similar patterns of deliberate indifference toward campus assault as I had witnessed at UNC. After several conversations, and realizing that the epidemic of campus rape hadn’t improved much in the past few decades, this brilliant student and I decided to do something about it.
We thought about writing a piece for The Chronicle of Higher Education on campus rape. But as we worked on our article, it began to resemble a long list of legal violations. We knew we had to do more than write an article.
For months, we learned everything we could about sexual assault, higher-education law, and social movements. We intimately studied all the tools we had at our disposal, and learned from other survivors who had come before us. We also knew that the U.S. Department of Education, just one year earlier, had sent out a reminder that schools had an obligation, under Title IX, to deal with sexual assaults on their campuses.
Through our research, Title IX became our vehicle, and federal complaints became our avenue. We decided to draft a Title IX complaint.
Case law has established that sexual harassment is a form of sex discrimination. We learned that rape, shoehorned under a sexual-harassment framework, constitutes a violation of Title IX. Under many colleges’ sexual-misconduct policies (that’s what they’re often called), punishments for rape seemed to be no different from those for lewd text messages. And when survivors were forced to change their class schedules or their patterns of behavior because universities allowed a serial perpetrator to stay on campus, that was a violation of Title IX.
Yes, we knew we were taking on a felony crime using a civil rights framework, but we also knew Title IX was a good law that could catalyze bigger changes. We knew that Chapel Hill like so many other campuses, was breaking federal and state law in order to save its own reputation. We weren’t lawyers, though, and we couldn’t afford one. The Department of Education’s website proved unhelpful, so we just wrote the complaint as best we could—over a period of a months—and crossed our fingers, sending it by mail, fax, and email to Washington.
3. What’s with this Title IX complaint and investigation business?
Annie: My co-complainant and I filed our complaint with the education department’s Office for Civil Rights. We did not file against UNC of out malice, but rather out of frustration, knowing our nation’s students deserved better. Our goal wasn’t to sue for money or to sign a settlement agreement that would keep us silent. We wanted to talk to other survivors. We needed to make campus sexual assault a national issue—because we knew it wasn’t only about Chapel Hill.
We filed hoping that the government would hold our university accountable for harming its students. A few weeks later, I received a fat envelope in my office mailbox in Oregon. The federal government was going to investigate our case.
An investigation doesn’t automatically mean that your university violated a policy, only that there were sufficient claims in the complaint for the department to investigate further. An investigation, we soon learned, is just what it sounds like. Federal investigators from the Department of Education do a records request from the campus. They interview people. They hold open meetings where others can share their concerns.
And then you wait. You wait a really long time.
When the investigation began, the media came calling in droves. One of the top public universities in the country was suddenly under investigation for mishandling sexual assault? The rape survivors were publicly talking about their stories? And they’re saying this happens elsewhere, too?
Within a period of months, we had a collective of over 800 rape survivors who were connecting, sharing stories, and filing their own lawsuits. Other students, faculty, and administrators wanted to learn what they could do to hold their colleges accountable.
4. So, why do colleges and universities deal with sexual assault in the first place? Shouldn’t a crime be handled by the police?
An institution has an obligation under Title IX to deal with issues of sexual assault involving members of its community, whether or not the local police are investigating the assault as a crime. When a college knows or reasonably should know that one of its students has been assaulted, it must act.
Police and campus investigations can work in tandem, and one should not hinder the other. Most of the time, students can choose whether to go through one process, both of them, or neither. Unfortunately, making that choice can feel like choosing between the lesser of two evils. Just last month, the U.S. Senate Judiciary Committee held a hearing to discuss this very issue.
The criminal justice process for rape survivors can be long, grueling, and revictimizing. Research shows that survivors who go through this process often have worse mental health outcomes than those who do not. And state statutes, for the most part, have a more narrow definition of what constitutes sexual assault than many campus policies. For example, same-sex sexual assault isn’t recognized in some states. Though the punishments for assailants can be harsher within the criminal justice system, the evidentiary standards are higher (sometimes nearly impossible) to meet. And with a poorly trained police force that often doubts victims, the outcomes for survivors are most often worse that they are for perps.
Plus, campus administrators can do things the police can’t. The police can’t change your course schedule so that you don’t have to attend class with your rapist. The police can’t move your dorm room so you don’t have to live down the hall from him. Some—arguably most—student survivors just want to be students. They don’t want to take the stand, face a jury, and relive the worst moments of their lives. They just don’t want to continue to be lab partners with their rapists, and that’s where a college can help.
But campus procedures can also harm. For example, in many cases, the punishments that institutions hand out for rape are laughably light, including things like book reports. Currently, expulsion is only meted out less than a third of the time that an accused is found “responsible” (a common disciplinary term) for sexual misconduct.
5. So what does my Title IX coordinator do?
Part of the challenge when learning about campus policies involving Title IX and sexual assault is that every institution has such different rules. But while we face a patchwork of policies that are constantly changing, there are basic things every campus should do, and must do, to meet their legal obligations to their students.
For example, all institutions must have a Title IX coordinator who performs certain duties. Those duties, as explained by the Victims’ Rights Law Center, include disseminating a notice (e.g., a campuswide policy) of nondiscrimination; overseeing the investigation of a complaint of sex discrimination; identifying systemic patterns of discrimination and taking corrective action; and educating the campus community about logistics of making a report and going through a disciplinary procedure.
We will delve into how those procedures work in more detail tomorrow in our next column, but for now, the most important thing you need to know for your own work at a university is this:
If a student tells you about a rape, you will likely have to report that information to the Title IX coordinator on your campus. Unless you are an employee with certain statutory privilege or confidentiality—and you are operating within that role (e.g., you’re a licensed therapist on campus working as a therapist at the time a student reports an assault to you)—chances are that you count as a “Responsible Employee” under the language of Title IX for reporting purposes. Nearly all administrators and faculty members fall in this category. Some colleges call responsible employees “mandatory reporters.” So if you don’t fall within the exception above, and you hear of a sexual assault, you must report the information to the campus Title IX coordinator. That mandatory reporting requirement can feel very disconcerting to faculty members accustomed both to academic freedom and to keeping student confidences.
Once the Title IX coordinator receives a report, that coordinator should reach out and have a conversation with the student making the allegation, and explain the process. If the student is unwilling or doesn’t want to go through a disciplinary process, the Title IX coordinator must balance a variety of factors: the individual’s wishes and safety, and the safety of the larger campus community.
Chances are, if a student is sharing an experience with you, it is because that student trusts you. You may be reluctant to betray that trust by turning around and telling the Title IX coordinator. In our next column, we’ll talk more about what to do when a student comes to you for help after a sexual assault.