It’s been a year or more of mounting anger and activism about college sexual assault, as awful stories of investigations botched and mishandled have emerged, and students have filed complaint after complaint against their universities. Gratifyingly, Washington is taking notice. The White House came out today with beneficial, if modest, recommendations for strengthening the laws that are supposed to protect students. And Congress may actually enact them, as Sens. Claire McCaskill and Kirsten Gillibrand shift some of their focus on sexual assault in the military to sexual assault on campus.
The White House is urging schools to adopt prevention programs that have been shown to work and to conduct anonymous surveys to gauge how often sexual violence happens on their campuses—and how often students report it to the authorities. We know there’s a big gap between what students experience and what they report—the shocking statistic is that one in five women are sexually assaulted during their college years, but only a fraction of that number reports it. Hard numbers, collected uniformly around the country, are important for judging the scope of the problem nationally and at individual schools.
Another change activists fought for: Greater transparency in ongoing investigations, which has been sorely lacking. There has been no publicly available list of the schools under investigation for sexual violence allegations under Title IX, the federal law that obligates schools to independently investigate reports of sexual assault and harassment. There are 53 Title IX investigations of universities pending, and while the existence of an investigation isn’t the same as proven wrongdoing, the public should be informed about which schools these are. The Obama administration says that list will soon be available—though unfortunately, a spokesman told me, it won’t be maintained on the new website the White House announced, notalone.gov, that’s supposed to provide resources for students and schools. (The White House is still figuring out where the list will live.)
The administration’s recommendations are generally to the good, and Congress should make them stick by enacting them into law. And yet, I have to pause to say that I can’t believe how long it has taken to put this issue at the front of the national agenda—and how toothless the laws written to protect students remain. This is a problem the White House recommendations don’t sufficiently address.
Title IX has been on the books since 1972. The Clery Act, which requires schools to disclose campus crime statistics, passed in 1990. In 2011, the Department of Education’s Office for Civil Rights, which is responsible for enforcing Title IX, sent schools a Dear Colleague letter emphasizing their responsibilities to provide an education free from sexual harassment and violence. And yet today the talking point from Vice President Joe Biden is, “Colleges and universities need to face the facts about sexual assault. No more turning a blind eye or pretending it doesn’t exist.” Well, yes, but shouldn’t they have stopped turning a blind eye a long time ago?
“I don’t see why schools need all this help enforcing a law that’s been around since the ’70s,” says Laura Dunn, an activist who helped push for the national survey and other proposed changes. I asked Dunn what she thinks the most important missing piece is, and she said, “That’s easy. Enforcement.” In the history of Title IX, the Department of Education has “never once sanctioned a school for sexual violence-related violations of Title IX,” according to the activist group Know Your IX. “Such tolerance allows institutional abuses to go unchecked at students’ expense.” Too true. In 2010, NPR and the Center for Public Integrity combed through documents to investigate the issue. They found that “Colleges almost never expel men who are found responsible for sexual assault,” and “are ill-equipped to handle cases of sexual assault.” Meanwhile, “The U.S. Department of Education has failed to aggressively monitor and regulate campus response to sexual assault.” The evidence: “Between 1998 and 2008, the department ruled against just five universities out of 24 complaints. ... No punishment was given in those cases — simply guidance on how to improve campus procedures.” When I asked the Department of Education for comment, a spokesman emailed that “institutions about which OCR has recently found areas of noncompliance include SUNY and the University of Montana.” No sanctions, though. Instead, an OCR official said last year, “I applaud SUNY for its willingness to show leadership.”
This is all pretty much the definition of toothless. In fairness to the Department of Education, it has operated on the assumption that the only way to take away federal funding from a school that violated Title IX is to take away all the funding. That’s like stoning a thief to death—crazily out of proportion and damaging for students, including the victims of sexual assault. The activists think there is already another enforcement mechanism on the books, but they would like Congress to make this crystal clear by enacting intermediate sanctions for schools, like fines. “Cultural change is a huge part of preventing campus violence, but enforcement is key for cultural change,” Alexandra Brodsky, one of the founders of Know Your IX, told me. (Disclosure: Brodsky is a student at Yale Law School, where I am a fellow and lecturer.) “If everyone on campus knows that a rapist has been reported, and is being allowed to stay on campus, that’s a pretty clear message that sexual violence isn’t a big deal.”
The lack of enforcement also helps explain one of the year’s most egregious Title IX lapses: Florida State University’s apparent failure to conduct any kind of timely investigation into a rape allegation against star quarterback Jameis Winston. Whether Winston is guilty or innocent, the school’s inaction smacks of protection for a prized athlete. In 2010, the DOE’s assistant secretary for civil rights, Russlynn Ali, told NPR she was willing “to withdraw federal funding from offending schools and refer cases to the Department of Justice for possible prosecution.” But it’s never happened. Has no school deserved to be punished? The Department of Education is now investigating FSU. If it’s true that FSU didn’t even look into the complaints against Winston until they became public almost a year later, shouldn’t the school face consequences?
There is a better path here, and to a degree, it’s been paved by the Clery Act, which is a narrower law than Title IX but prompted 23 complaints of its own just last year, and at least is occasionally enforced. For example, in 2004, the Department of Education cited Georgetown University for forcing a student who wanted access to the records of her own sexual assault grievance proceedings to sign a nondisclosure agreement. (I learned this from a government website where you can look up Clery Act investigations, by year or by school—the kind of database that still won’t exist for Title IX but should.) In 2013, the department fined Yale University $165,000 for failing to report four sex offenses involving violence back in 2001 and 2002. The government said it launched the investigation in response to an article I wrote for the Yale Alumni Magazine in 2004. The findings against Yale were a long time coming, but as Brodsky puts it, in the end, the law can prove “a pretty effective shaming mechanism.” Yale has certainly put more energy into prevention of sexual assault and harassment since I wrote about this a decade ago.
I still recognize, as I did then, that “Sexual harassment and assault are among the most vexing and intractable problems on any campus.” Schools must pay attention to the rights of the students who are accused as well as the students who say they’ve been victimized. They must provide due process. And they must guard against the rare but real threat of false rape accusations. (I also agree with Slate’s Emily Yoffe that they should talk frankly about the toxic combination of binge drinking and nonconsensual sex with female as well as male students. That doesn’t mean victim blaming. It means arming women with facts they need to protect themselves.)
The stream of bad news about campus sexual assault keeps on coming. Earlier this week, a group of students filed three complaints against Columbia University, charging that the school mishandled cases, mistreated alleged victims, and gave too much leeway to accused perpetrators. Listen, I don’t want schools to kick men off campus without solid proof. (And as my colleague Hanna Rosin writes, men can be victims too.) But how much is that actually happening? I hear a lot more stories of women who come forward and end up feeling deserted by their schools—or worse, pilloried by other students if their cases go public. Often it’s the alleged victims who withdraw from classes or don’t graduate, not the alleged assailants. Dunn wants the Department of Education to ensure that schools help the specific students who allege assault before the universities are allowed to resolve a Title IX investigation. If a student makes a credible accusation, that makes a lot of sense.
One important change Dunn helped win when the Clery Act was updated last year: Students who come forward with accusations now have the right to bring a supporter of their choosing to the disciplinary proceedings. Previously, schools could make their own rules about who gets to have representation, and often alleged victims weren’t allowed to bring a supporter or a lawyer to a hearing, Dunn says. Changing that “is essential,” Dunn says. “Historically, the accused student brings his lawyer, the school gets scared of liability, and the case is dropped. Now there is an equal playing field from the start.”
Yes, good—but not enough. Without more action from Congress, providing for real enforcement, Dunn says the reality remains that “very bluntly, women’s education is not as valued as the education of the men who harm them.” I don’t want to believe this—I’d like to think we’re past it. But I’m afraid we’re not.