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.”