by Stephanie Krehbiel

Series Introduction:

With all the drama to choose from in the news, a person could be forgiven for not following the latest Title IX developments in the U.S. Department of Education. A lot has been going on there, though, and unfortunately, none of it is very encouraging to those of us who are passionate about ending campus sexual violence.

But if education is power—and I know that it is—we have resources in abundance, and we plan to use them! One of our long-term organizational goals at Into Account is to help students, parents, faculty, staff, and alumni be as well-informed as possible when they encourage/push/demand change related to the sexual violence in their schools. This post is the first of a three-part series on Title IX, sexual violence, and higher education. In part one, I’ll talk about why Title IX exists. In part two, I’ll walk you through the current threats to the movement against campus sexual violence, and how students and advocates are fighting them. Part three will discuss the particular challenges of Christian colleges, and how the conservative movement for “religious liberty” has made campuses less safe for students vulnerable to sexual violence (particularly LGBTQ students).

You don’t have to become an expert on landmark federal legislation to care about this stuff. But information about existing laws can give you the confidence to advocate from your deepest values. Here’s one of ours: regardless of who you are, your body belongs to you and you alone, and you deserve to go to school, and to learn, without having to live in fear that someone will violate it. If all the laws changed tomorrow, we’d still fight for that. Every bit of activism that Into Account does around Title IX enforcement stems from that unshakeable conviction.

Part One: When Freedom from Sexual Violence Became a Civil Right

Regular readers of our blog may remember Erin Bergen’s account of her own experience with the Title IX complaint process at Goshen College after she was sexually assaulted there as a student. In the fall of 2016, before the U.S. presidential election, Erin filed a complaint against Goshen with the Office of Civil Rights in the U.S. Department of Education. The OCR notified Erin in December 2016 that they would be investigating Goshen as a result of her complaint.

Before talking about what has happened with Erin’s case since December, it’s worth reviewing why Title IX is relevant to campus sexual violence, and why complaints like the one Erin made to the OCR are integral to enforcing it. Title IX became federal law in 1972, as an amendment to the Higher Education Act of 1965. (The HEA is a landmark bill that increased federal funding for colleges and universities and financial aid for students.). Title IX’s purpose is to prevent discrimination based on sex in all federally-funded educational institutions. In language and intent, it reflects the precedent set by the Civil Rights Act of 1964, which outlawed discrimination based on “race, color, religion, sex, and national origin,” in voting, public accommodations, public education, and employment. (I’m glossing over a lot of detail and nuance in that 1964 legislation. So your civics assignment, should you choose to accept it, is to go read the whole law. It’s a good thing to do in these times.)

With this federal protection against sex-based discrimination in place, the prevalence of sexual harassment and sexual violence at colleges and universities became a civil rights issue. For the first time, the federal government recognized what many women in higher education already knew: that the prevalence of rape, abuse, and sexual harassment at colleges and universities constituted a serious educational access barrier. (Sexual violence isn’t just cismen* abusing and assaulting ciswomen, but when Title IX first became law, no one in government was talking about other forms of sexual violence in relation to campus policy. More on that, and Title IX’s particular relevance to LGBTQ students, later in the series.)

Title IX regulations stood in defiance of a mess of narratives reinforced by religion, institutional practices, and patriarchal logic: That women lie about sexual assault. That some women deserve to be raped. That men’s sexuality is beyond their own control and women are responsible for keeping it in check. That the sexual dominance of men over women is the natural order of things. That the education of women is less important than the education of men.

And yet as monumental as this defiance was, and as far-reaching as the implications were, the passage of Title IX did not lead to a glorious, new, violence-free era for women in higher education. For many women students, victim-blaming narratives and misogynist stereotypes have been more powerful than the protection afforded by the law. When I was a college student in the nineties, I had no idea that Title IX was related to anything but women’s athletics. In that era, my ignorance of its full reach was more the norm than the exception.

Today, almost two decades since I graduated from college, people know a lot more about Title IX. This is thanks in large part to the Obama administration’s attention to civil rights issues generally, and campus sexual violence in particular. Under Barack Obama and his appointees, the Department of Education aggressively promoted a proactive approach to sexual violence in colleges and universities. This meant reviewing and changing policies, and addressing weaknesses with education and training, rather than secrecy and intimidation. Being proactive even meant doing what was almost certainly counterintuitive for many administrators: encouraging victims to report, with the near-certain knowledge that their school was no dazzling exception to the dismal statistics.

A lot of positive change came out of those eight years. Had things remained as they were before then, it’s unlikely that either Erin or Beth would have had the resources to come forward and ask for accountability from their schools. The number of student victims who filed complaints about their schools with the federal government skyrocketed during the Obama administration. Some people look at this fact with suspicion, but as an advocate, I see it as a sign that something was giving victims hope, that the benefits of coming forward were finally starting to outweigh the risks.

In spite of all of that, one of the enduring challenges of Title IX legislation is its dependence on victims reporting their grievances. Unfortunately, the evidence still suggests that the overwhelming majority of victims do not. For victims, pursuing a Title IX complaint means submitting to a process that requires a great deal of faith in the school’s ability to listen without judgment, to maintain confidentiality, and to protect them from retaliation. If a school’s policies and culture are such that survivors can’t be assured of those things, they are likely to stay quiet.

That very silence can be used as evidence that the school doesn’t have a sexual violence problem. But when 23.1 percent of college women and 5.4 percent of college men nationwide experience sexual assault, the reasonable assumption isn’t that zero reports means zero assaults– the reasonable assumption is that something is wrong with the reporting system. A college that reports zero sexual assaults in its Clery statistics may as well be waving a red flag of warning.

Erin’s complaint went through the OCR in a moment of transition, between a U.S. administration with unprecedented interest in fighting campus sexual violence, and an administration led by a president with a storied history of sexually abusive behavior towards women and a general disdain for federal regulations. Perhaps that’s why, over seven months after hearing that the OCR was investigating her case, Erin still hasn’t heard anything new. Goshen College hasn’t heard anything new, either. According to Ken Newbold, the Title IX Coordinator and Interim President at Goshen, nothing has changed in relation to the investigation since Erin’s story came out in April, at which point Goshen made the following statement: “In regards to the current Department of Education’s Office of Civil Rights investigation, we have already responded to the requests and are fully cooperating with the investigators.”

In an email to me, Newbold added the following, however: “Regardless of the OCR’s current approach to enforcement of Title IX, we are committed to campus safety for all of our students and continuing to improve the development of proactive initiatives related to sexual violence and misconduct education, prevention and response. One example I would like to highlight, is that by early September at least 75 percent of our student body will have received bystander intervention training — led by students in our Prevention Intervention Network — to be equipped with skills to respond when they observe unhealthy situations.”

The reforms that Newbold lays out here are straight out of the Department of Education’s 2011 guidelines for Title IX enforcement, issued in the form of a “Dear Colleague” letter that is now under considerable fire by Trump appointees. If Goshen is currently taking those guidelines more seriously than ever before, student activists like Erin deserve a large portion of the thanks. And while changing the campus culture through student-led initiatives is transformative and necessary, seeing a survivor-centered policy audit and subsequent overhaul of institutional policies and practices would be a tangible indication of a shift from business as usual.

Goshen has publicly committed to a policy audit in the past. They should follow through on that commitment–not because of any federal investigation, but because it’s the right thing to do for Goshen students and survivors.

We face a strong likelihood that the federal government is about to renege on its responsibility to survivors. If that happens, college students who are vulnerable to sexual violence are going to need their schools’ constituent communities more badly than ever, to apply some of the pressure that won’t be coming out of Washington anymore.

So this is no time to get complacent. Ask questions of your administrators. Push for concrete answers and follow-through. Support the students, faculty, and staff who you know are affected. Help your school live up to its best aspirations.

Part Two: Betsy DeVos and the debate over due process and standards of proof

*The prefix “cis” refers to people whose gender presentation and identity matches the sex they were assigned at birth.