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Don’t Roll Back Title IX Enforcement

The Past and Future of Campus Sexual Assault Policy

The recent Title IX Listening Sessions of July 13 2017 sponsored by U. S. Department of Education Secretary Betsy DeVos have prompted this week’s forum at Public Seminar. As part of the process, Secretary DeVos also hosted men’s rights activists who champion the cause of individuals claiming to be falsely accused of sexual misconduct. The prior day, Candice Jackson of the Department’s Office of Civil Rights had made controversial comments implying that sexual assault charges made by women on college campuses were mostly the outcome of mutual intoxication and post-breakup bitterness. The following day she apologized for being “flippant” and came out as a sexual assault survivor herself. The three critical articles published this week arose out of a conversation between three scholars whose work collectively engages gender justice, the psychology of sexual consent, and Title IX.

On Monday, Ali Shames-Dawson argued that policymakers should address social research on consent that reveals its complexities. In this second post, Katie Gentile examined how the deployment of rape myths and gender tropes flips the script to make the accused rapist a victim, and the accuser a perpetrator.

Today Haylee Millikan outlines the history of Title IX and the implications of rolling back the 2011 “Dear Colleague” letter which clarified procedures for institutions handling sexual assault.

Once again, the Trump administration was in the news for erroneous and misleading statements. This time? Candice Jackson, acting assistant secretary for civil rights at the U.S. Department of Education, commented to the New York Times that “[sexual assault] accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”

My reaction to this was a dull and empty anger, one I have cultivated since I began working years ago as a campus activist focused on gender violence. Statements like this are not uncommon in my world. They are frequently made by those who oppose affirmative consent policies or who do not believe the staggering statistics regarding sexual assault on college campuses in the US (23.1% of females and 5.4% of males will experience sexual assault during their college career).

What is new, to me at least, is that this time the statements are coming from federal officials.

Publications and editorial writers have described Jackson’s statement as “flippant,” but I believe it was more than that. Since Trump began his campaign for President, the media and the public have dismissed his more outlandish statements, citing his tendency to speak before he knows what is actually going on. Yet, again and again his administration has attempted to do exactly what he said he would do. Title IX rollbacks have already happened, and we shouldn’t be surprised if they continue. Education Secretary Betsy DeVos has the power to roll back Title IX protections and regulations: to not take Jackson’s comments seriously is to dismiss the attitude of this administration when it comes to sexual assault — a stance that is imprudent at best and dangerous at worst.

In Public Seminar on Monday, Ali Shames-Dawson explored the complexities of consent, the “dance of ambiguity” that occurs without the clarity of saying yes or the prioritizing of mutual pleasure. She described the doubt that victims feel as a result of this ambiguity. When I was sexually assaulted in college, like many women (and men), it took me over a year to use the word “rape” to describe what had happened to me. For months, I blamed myself for staying silent through the traumatic experience, although really I was too drunk and high to react to it. I should have been able to trust the man who assaulted me, a friend I had known for 15 years. I talked in terms of “gray areas” until I realized that the only person who has ownership over my body is me. Many women (and people of all genders) experience the slow taking-away-of our bodies as we age; but I knew how it felt to be touched without my consent before I got my first period at 13, and this is not uncommon.

I have many friends who have experienced sexual and domestic violence. As I was writing this article, a woman I know told me that a man she had previously consented to having sex with had raped her while she slept. She told me it took her a long time to come to terms with it, and that she never considered going to the police because she didn’t want her life to be turned upside down or her flaws made public. Our flaws as survivors — our promiscuity or our drug use, or our choice of skirt length — are still used as a way to blame us for being assaulted. In contrast, the defense of perpetrators often relies on glorified histories, and concern about their promising futures. Think about the remarks from the father of Brock Turner, the rapist who was also a swimmer at Stanford, who claimed that “20 minutes of action” should not affect the rest of his son’s life and career. Both pieces of the puzzle are vital to a complicated and often misunderstood issue. Each speaks to the multifaceted ways we must grow, both as a society, and as thoughtful users of Title IX’s provisions.

But let me backtrack.

I firmly believe that journalism is, above all else, a tool for civic action, and that a deeper understanding of complex issues is vital to coming up with meaningful solutions. But one of the biggest issues I see in debates about Title IX is a lack of knowledge about the history and content of the law. So what is Title IX? How and why did it begin, and how can it be possible to roll back the inclusion of regulations regarding sexual assault?

Title IX was introduced as a part of the reauthorization of the Higher Education Act of 1965, partly because it was originally packaged with the Equal Rights Amendment and Senators were having a hard time getting the ERA out of committee (and, well, we know how that turned out.) Speaking about Title IX on the Senate floor, Senator Birch Bayh of Indiana, its primary sponsor, said:

“We are all familiar with the stereotype of women as pretty things who go to college to find a husband, go on to graduate school because they want a more interesting husband, and finally marry, have children, and never work again. The desire of many schools not to waste a ‘man’s place’ on a woman stems from such stereotyped notions. But the facts absolutely contradict these myths about the ‘weaker sex’ and it is time to change our operating assumptions.”

Young people forget, I think, that this was a bold and brave statement, and that legislation like this was designed to fight discriminatory views about women and our role in society.  Title IX’s text (and I’m paraphrasing) prohibits sex discrimination in any educational program or activity receiving Federal funding. Most famous for integrating women into sports, that route was chosen in part because  athletic scholarships were an important route to affordable higher education. In 1975 the Department of Health, Education and Welfare issued regulations about equal opportunity in athletics (which you can look into here on the NCAA’s website); high schools and colleges were given three years to comply and primary schools were given one year to comply. In 1979, HEW finalized a “three-pronged test” for assessing compliance with Title IX’s requirements for equal participation opportunities.

In 1980 the law moved forward again when an appeals court established in Alexander v. Yale that sexual harassment constituted sex discrimination, thereby making sexual assault — as a form of harassment — actionable under Title IX. 1980 also marked the creation of the Department of Education. With North Haven Board of Education v. Bell in 1982, sex discrimination in employment was prohibited. However, in 1984, Title IX was set back by a Supreme Court decision in Grove City College v. Bell which stated that the law only applied to programs within an institution that received direct federal funding. This was once again overturned by the Civil Rights Restoration Act in 1988.

In 1992, the Supreme Court held that plaintiffs could sue for monetary damages under Title IX, which led to a decrease in complaints to enforcement agencies and an increase in lawsuits. In 1993, the US Court of Appeals determined that “financial and budgetary difficulties are not an excuse for Title IX non-compliance.” Student-on-student sexual harassment became part of Title IX in 1996, and in 1999 the Supreme Court affirmed that a school district or campus can be held liable if found to be acting with “deliberate indifference.” In 2000, the Department of Education issued a common rule including educational institutions not originally included in the law, like vocational programs for inmates and police academies. In 2005 the law expanded to address discrimination against pregnant women and mothers.

The US Supreme Court also found in 2005 that schools could not retaliate against those who protested sex discrimination. However, within months, the Department of Education also released “the Additional Clarification,” which asserted that schools could simply be in compliance by surveying their female students about what sports they wanted to play — not actually providing opportunities. In 2006 the Department of Education rolled back regulations regarding single-sex classes within coeducational institutions, (which the ACLU opposed) and the number of single-sex classes within those institutions increased exponentially. In 2010 “the Additional Clarification” was rescinded.

In April of 2011 a policy guideline released by a Department clarifying the role of a certain law (known as a a “Dear Colleague” letter) served to  explain “that the requirements of Title IX cover sexual violence and to remind schools of their responsibilities to take immediate and effective steps to respond to sexual violence in accordance with the requirements of Title IX.” For the first time, sexual violence became a more prominent aspect of Title IX’s regulatory powers than athletics or access to educational opportunities. Following the “Dear Colleague” letter, many investigations were opened against institutions across the country (which you can look into more here, using a tool created by The Chronicle of Higher Education.)

In 2014, Title IX was expanded to protect transgender students from a discrimination, a provision promptly rescinded by the Trump administration in February of 2017. The recent rescinding of the 2014 “Dear Colleague” letter makes it clear that the current administration may also roll back regulations put in place by the 2011 letter, de-prioritizing campus sexual violence.

Since 1972, Title IX has been a distinct example of what American democracy is supposed to be: it has been a work-in-progress to create greater access to opportunity, something the Trump administration claims that it desires. It began as a compromise, a leftover provision from a stalled ERA that most people in favor of civil rights could approve. Over the years it was reinterpreted to cover equity in athletics and in the classroom, sexual harassment perpetrated by faculty and by peers, sexual violence on campuses, and discrimination against transgender students. It became more nuanced and complex as society shifted to a more evolved understanding of what gender discrimination means.

In a few months, the Department of Education has taken crucial steps back in time. What would it mean to go further and roll back the 2011 “Dear Colleague” letter? First of all, this isn’t a “repeal and replace” situation. Those who want to roll back Title IX are not concerned with the safety and well being of gender violence victims or gender-nonconforming students. They are concerned with alleged discrimination against men through so-called “false reports,” which research shows are rare. They argue that the legal system should handle sexual assault cases instead of universities, a position also held by some feminists.

The problem with this line of thinking is that there are benefits for sexual assault victims in not going through the court system. Victims have seen the legal process destroy lives. They watched as Brock Turner admitted fault and yet served little time; and they understand the difficulties of bringing a case in the first place. Until the law actually protects survivors, until massive reform has taken place inside police stations and courtrooms, it is vital that women pursuing an education have the ability to seek justice without taking their case to court. I never considered going to court: I knew that I had waited too long, that I had little to no evidence left by that time, and honestly,  that I couldn’t mentally handle the strain of an investigation. Does that mean my case should not have been heard?

In addition, if the 2011 letter is rescinded, there will be fewer consequences for administrations that mishandle sexual assault cases. There will be less incentive to create programs protecting students, teaching consent, and addressing dynamics internal to institutions that encourage sexual assault. Universities have not proven themselves trustworthy when it comes to handling sexual assault cases and protecting students: currently there are 345 active investigations against universities for mishandling sexual assault cases. Perhaps we should have faith that educational institutions care about their students enough for fight for them, to provide them with protections that allow equal access to an education.

But faith and law are not the same thing, and what the 2011 letter does is clarify how institutions should go about enacting the protections of Title IX. Tiana Lowe, in an article in The National Review, argues on the side of re-allocating Title IX money to legal services for survivors. I disagree, but I do believe that she gets it right when she writes: “The true flaw of [the 2011 “Dear Colleague”] letter was the fact that it expanded the authority of a broken system […] rather than fundamentally repairing it.” Title IX isn’t perfect; most legislation isn’t. It needs to evolve, and lawmakers need to pay close attention to the issues so that they can respond with better legislation and regulations.

Sexual assault is a massive and complex problem that needs to be attacked from all angles. Cultural norms about consent and pleasure need to change. We need reform in sexual education policies and procedures, and through a shift in how we talk about sex. Rape kits and 24/7 Sexual Assault Nurse Examiners (the only people qualified to administer rape kits) must be available at every hospital and campus health center. Legal services and mental health services need to be accessible. Reform needs to happen on almost every level. But until then — we need Title IX and the provisions of the 2011 “Dear Colleague” letter to remain intact.

I want to return to something Senator Birch Bayh said when arguing for Title IX on the Senate floor: “It is time to change our operating assumptions.” Moving forward with Title IX, and with gender violence legislation in general, means altering our assumptions about sexual assault and gender discrimination as we learn more. We are not at a place yet where we can trust institutions to be equitable, but that doesn’t mean we should erase the progress we have made and leave nothing in its place. Federal regulations are difficult because of the sheer number of institutions that they encompass. However, this large scale also gives us the opportunity to study and learn from what works and what does not. Secretary DeVos (and the rest of her team) should not push us further back in time, not only because of the impact it would have on students, but because of how it will slow, and even reverse, progress for stopping sexual violence on campuses across the nation.

Haylee Millikan is an MA Candidate in Creative Publishing and Critical Journalism at The New School, has been featured on CNBC, and is a proud feminist activist.

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