Thursday, July 16

Ethics and Title IX

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Jessica Luther

by Jessica Luther

How colleges and universities—and even grade schools—handle reports of gendered harassment on their campuses (including but not limited to reports of sexual misconduct, domestic violence, stalking, sexual assault, and rape) remains a persistent topic. 

The Department of Education recently handed down a $4.5 million fine, the largest-ever of its kind, to Michigan State for “its systemic failure to protect students from sexual abuse” and requires the school “to make major changes to its Title IX procedures.” The DOE has recently found that the University of North Carolina “violated campus safety laws for years to an extent that can’t be fully measured” and is currently investigating the University of Maryland. The University of Texas, following sustained student protests and extensive coverage in the student paper, recently announced that they have hired an outside law firm to review their Title IX policies and offer improvements. These stories are plentiful.  

While there are multiple entry points into a discussion of how educational institutions respond when gendered harassment or violence is reported, this article will look at one in particular: the way in which compassion and compliance can be at odds as administrators manage the aftermath of reported harm. 

This article will cover:

  • Title IX and Compliance
  • Institutional Betrayal and Courage
  • Bringing Compliance and Compassion Together

Title IX and Compliance

Title IX, a statute passed as part of the Education Amendments of 1972, is only 37 words long: 

“No person in the United States shall, on the basis of ***, 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.” 

The idea is that schools that receive federal funding must make sure that all students have equal access to education no matter their ***. It is a civil right. Title IX covers a range of issues including the treatment of pregnant and parenting students, equity in sport, and how schools handle reports of gendered harassment on their campus. 

It’s this last one that received increasing attention throughout the last decade. While the statute bars discrimination, how the DOE determines if an educational institution is meeting this mandate is ever-changing, as each new Secretary of Education has the ability to draft new guidelines and alter old ones. There were significant changes under the Obama administration, some of which have been withdrawn by Betsy DeVos. DeVos also issued a new set of interim guidelines in 2017 and announced new policies in 2018 (note: groups that advocate for survivors are concerned about these policies). 

Additionally, Title IX operates alongside other laws like the Clery Act and Campus SaVE Act (which is technically part of Clery through Violence Against Women Act amendments). Clery forces schools to publicly release statistics every year about crime on campus and to give timely warnings if they believe there is a safety threat, while Campus SaVE adds more requirements around transparency of rights for those who report, accountability from institutions in terms of disciplinary procedures, and education in terms of primary prevention and bystander intervention. And it’s not just the Department of Education that has jurisdiction to investigate and punish schools who fail to follow Title IX. The Department of Justice, in some cases, can also intervene.

There is quite a checklist that universities have to follow in order to satisfy all the requirements. 

One of the earliest pieces I wrote about campus sexual violence and university response was about the University of Texas, in May 2014. In the piece, I described “a poster-sized chart on the wall” behind the desk of the Title IX coordinator. She had called it “maddening” at the time and then described the chart thusly: “There are five levels: Title IX compliance officers, first responders, responsible employees, faculty/staff, and then students. The ‘diamonds’ are required by Clery and SaVE. The ‘pluses’ are implied or necessary elements based on resolution agreements and/or the recommendations by a professional association. The ‘checkmarks’ are required explicitly by Office of Civil Rights or the Department of Justice.” I remember thinking that chart looked daunting, as well as confusing, at the time. 

This is, I came to understand, what compliance looks like in practice. And no matter how kind or caring the people are whose jobs it is to implement Title IX/Clery/SaVE/DOJ guidelines on campus, the ultimate goal is to be compliant under the law. And following a checklist can come off as cold and calculating, and can create gaps in response that leave those who report and who are reported feeling bad—even as everyone is doing their jobs correctly. 

Over the last five years, as I’ve reported extensively on university response to students who report being harmed, I have often heard from those students that the process of reporting has made them feel bad—and, at worst, re-victimized. For one example, see this piece I co-wrote in 2018 about Texas A&M. Often how those students feel has little to do with whether boxes where checked by administrators (or, perhaps, are exactly because administrators must make sure to check boxes). 

For those whose cases are not found in their favor, a negative response to the process makes sense on its face. But I’ve talked to students who got the outcome they were seeking and still, on some level, regretted having ever reported. And none of this speaks to the experiences of those who are reported—people who, I assume, enter the process hostile to it.

reporting crime

On top of all of that, universities are rigidly hierarchical, students have very little power, and most are, in practice, conservative spaces just as any bureaucracy is. Change takes a long time; the status quo is preferable. 

Institutional Betrayal and Courage

A large part of what is happening, I believe, is a disconnect between what those who report believe will happen (most of them students, but also faculty and staff), and what actually happens. 

Dr. Jennifer Freyd, a Professor of Psychology at the University of Oregon, has long worked on the impact of “Institutional Betrayal” which can apply to any institution that one expects to protect them and that does not, in the end, meet that expectation. For those who report and who have experienced harm and its aftermath of trauma, whether an institution meets that expectation is often more complicated than whether the university was by-the-book compliant. Even worse, experiencing Institutional Betrayal can have a range of negative emotional and physical outcomes.

We hear a lot about “trauma-informed” or “victim-centered” approaches to response, which suggest a process that will have compassion at its core. And, again, while people who carry out this work do care, they are also responsible for being compliant under the law. They have to carry out thorough investigations, they are obligated to follow due process rules, and they are all members of a society where gendered harassment is massively under-reported and our understanding of how to manage it is constantly changing. In fact, earlier this year, The Association of Title IX Administrators released a statement cautioning trauma-centered approaches, worrying that there is not enough science to guide administrators at this point. 

All of this, like much of Title IX guidelines, is still up in the air and everyone is learning as they go. That’s a difficult thing to admit, because the reality is that as we all figure this out, inevitably people will be harmed—both initially by their perpetrators, but also in the reporting, investigating, and sanctioning processes. 

Bringing Compliance and Compassion Together

Administrators have to be able to hold all of those concepts at once, while dealing with incredibly serious reports and individuals who very possibly have experienced harm and/or trauma at the hands of a fellow student or a faculty member—all in the service of maintaining everyone’s civil right to access education. 

Freyd has some answers. The other side of the coin from Institutional Betrayal is what she calls “Institutional Courage.” This includes “institutional accountability and transparency, as when institutions conduct anonymous surveys of victimization within the institution.”

None of this easy. Of course, compliance is important and it is necessary. Part of being institutionally courageous, according to Freyd, is complying with criminal laws and civil rights codes. But also, she wrote in 2018, people must “go beyond mere compliance. Avoid a check-box approach by stretching beyond minimal standards of compliance and reach for excellence in non-violence and equity.” She goes on to suggest that administrators have to learn how to listen better and respond sensitively, embrace whistleblowers and the necessary critique they bring, apologize when appropriate, be willing to take in-depth looks at how policy is playing out in practice and change it when necessary, continually re-commit to this work, and to put money and resources into making it a reality. 

reporting sexual assault

Institutional betrayal can lead to real psychological and physical harm. Aimorn1992/shutterstock.com

There should be regular standards and best practices. This is not a call to shirk responsibilities or do away with the checklists. But there has to be a concerted and on-purpose effort to soften the sharp edges of compliance; to put into practice the compassion about which so many administrators say they care, and that students, faculty, and staff expect when they choose to report.


About the author

Jessica Luther is a freelance journalist, author of Unsportsmanlike Conduct: College Football and the Politics of Rape, and co-host of the feminist sports podcast Burn It All Down. She is also a PhD candidate in the Physical Culture and Sports Studies program at the University of Texas at Austin.

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