How can we write Title IX Guidelines that protect survivors and promote justice?

consent culture
Written By Mackenzie

The open comment period on proposed rule-making for Title IX guidelines around campus sexual conduct closes January 28. Speak About It asks: How can we write guidelines that are human, humane, and equitable, while being replicable at schools across the nation? Read our full statement below.

From left: Educators Maya, Olivier, Alexxis, Kyra, and Jeo at New Hampton School.

Speak About It is a consent education and sexual assault prevention organization. We have worked with thousands of college students since 2010, and have watched changes in Title IX guidelines shape campus life. The Department of Education has proposed new guidelines for sexual conduct under Title IX, which are now open for public comment. This moment must be used as an opportunity to listen to students, school administrators, and our partners in prevention, while re-examining and re-affirming the goals of Title IX. Responding to sexual violence must be a community-wide effort to create systems that support survivors and ensure justice. We encourage all of you to lend your voice by making comment on the proposed regulations by January 28. You can learn how here.

 Speak About It is invested in Title IX, and not just because it has supported and encouraged our work on campuses across the country. Regardless of national regulations or mandates for prevention, we will continue to spark conversations about sex, consent, and community change because we all have skin in this game. Title IX regulations affect students from kindergarten to college, and the social dynamics of sex, gender, power and relationships affect all of us. We are compelled to comment because we are committed to the long game that is building a culture of consent.

Schools have been applying Title IX to sexual assault cases only since the early 1990s. Huge strides have been made since then, with campus activism increasing in the past two decades along with the growing #MeToo movement. But, many folks—including experts—are still trying to assess best practices. There is no denying that the 2011 Obama-era regulations were imperfect. Some argue that the previous regulations created conditions that supported racial bias in decision-making. Many schools found the old guidance taxed administrators and campus resources that were already struggling to meet student need. But the 2011 and 2014 guidelines also raised the bar for colleges to take an active role in creating healthier learning communities for all students, and asked them to wrestle with accountability on campus.

It is time to admit that nobody is getting this 100% right. There is simply not enough information to do so. Title IX is a charged issue, and applying it to sexual misconduct means that the law encompasses some of our most intimate relationships and deeply personal interactions. How can we write guidelines that are human, humane, and equitable, while being replicable at schools across the nation?

The goals of Title IX have not changed: to build towards a more safe and equitable system of prevention, response, and justice. Speak About It believes the best way forward is to ensure any new regulations outline the current best knowledge in the field and continue to build upon prior work for safer, violence-free campuses. We are not policy-makers nor experts on the law or Title IX. However, there are a number of issues in the proposed regulations that are cause for concern given our own experience working with students and administrators at hundreds of schools across the country. Many of the proposed changes would affect vulnerable students first and most.

We have a number of specific concerns that we list in more detail  below. However, our topmost concern is the lack of prevention education written into Title IX. These new guidelines must include provisions and additional incentives for year-round prevention education if they are to improve existing conditions in educational institutions. Otherwise, they will continue to fall short. From almost a decade on the road, Speak About It knows that effective sexual assault prevention education is holistic, continuous, and customized to the community, and that effective response puts survivors in the driver's seat and prioritizes restorative justice wherever possible. There is a deep need for this kind of consent and sex education at both the K-12 and university levels. Education is a vital pathway to supporting survivors, ensuring campus safety, and creating culture change.

We are concerned that the new regulations limit protections for survivors, and may make them feel more powerless in the aftermath of harassment and assault. There is certainly a need to ensure that implicit bias has no role in investigations and that fairness for all parties is prioritized. However, the proposed guidelines present an assumption that the number of falsely accused perpetrators is equal to the number of people who experience assault. This is not true. This misconception is damaging to survivors who are afraid to report for fear of being disbelieved. Removing protections for survivors will not create a more fair process. It will instead leave swaths of students, especially women of color and LGBTQIA students who are already less likely to report or be seen as credible and more likely to experience assault, without any recourse or support.

It’s clear that we need to work with experts across multiple fields to rewrite regulations for investigations that ensure fairness without jeopardizing the protections for survivors that activists worked tirelessly to build into Title IX. Any new regulations must be shaped with the guidance of social scientists, legal scholars, education professionals, researchers, and folks with lived experience.

The open comment period is an opportunity to think about what effective institutional support looks like; to move beyond partisanship and into prevention. We detail below a few of the comments that we plan to submit to the DOE during the Notice of Proposed Rulemaking (NPRM) period before January 28. We encourage you to make thoughtful comment, and to urge experts, professionals, and stakeholders in your schools and communities to do the same. We encourage you to engage with the rulings, take a look at the articles we’ve provided in our statement, and decide what you want the rules and regulations to be for your community. How do you think we can all move towards a culture of consent? What are the best regulations that we could create right now? The only way forward is through organized, thoughtful work. Make your voice heard. 

Detailed comments on proposed rule-making

The new regulations seek to narrow the definition of harassment and assault to actions that are “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity.” After years of hearing survivors’ stories, we understand that sexual violence doesn’t just exist in a binary of “bad” and “not that bad.” Assault can take many different forms, all of which should be of concern. What counts as ‘objectively offensive’ manifests differently for different folks depending on their experience or identities, and this new definition leaves little room for these disparities. We also worry that rigid interpretations of “pervasive” would disqualify one-time instances of harassment or violence as unreportable because an abuse wasn’t continued, repeated, or ongoing.

The new definition leaves little room for the diversity with which survivors react to trauma. A victim of assault may throw themselves into their school work, thus being unable to prove that a perpetrator’s action denies them access to their education. The new definition also places power into the hands of a school or investigator to decide if a rape or assault is “severe” or “bad enough” to count, a demoralizing narrative that countless survivors have faced when coming forward with their stories.

While this narrowed definition is in line with the Supreme Court’s 1998 definition, it is not fully aligned with state laws or many existing on-campus policies. This narrower definition also ignores the best-practice standard of affirmative consent, or the “yes means yes” model for consent for any sexual activity. Folks who do not give a clear “No,” who freeze, or revoke consent will be disserviced by this new definition, making reports of assault less likely to be taken seriously, if reports are made at all. Likewise, if someone experiences harassment but their experience is deemed to fall outside the boundaries of this new definition, a victim may feel invalidated, furthering the disempowerment already caused by an assault.

We are particularly concerned that this narrower definition will override the important work that we and numerous others have done to get students to understand the value and intricacies of affirmative consent. By placing modifiers on harassment and assault like “so severe” and “pervasive”, the new definition ignores the role that coercion, social pressure, and other power dynamics play in a non-consensual or traumatizing sexual encounter.

Likewise, the new regulations do not require schools to take action on instances of assault that occur outside of an institution’s geography. Many administrators and activists have already raised concern over this, because empirical research and anecdotal reports show that a significant number of sexual assaults occur at off-campus housing, parties, greek houses, or by members of other campuses. The behavior of community members on or off campus affects the overall safety and health of the community, and schools should be incentivized to investigate any behaviors that impact campus climate. The proposed regulations are unclear whether schools have an obligation to investigate off-campus incidents. We worry this disincentives schools from doing so, which could leave a majority of assault cases uninvestigated.

The addition of cross-examination by an advisor causes concern for Speak About It, not only because of the potential damage and re-traumatization that cross-examination may cause to a survivor of sexual assault, but also because of the socio-economic inequality this measure could promote. We worry that this rule encourages students to seek and maintain counsel throughout an investigation. These new regulations move toward reproducing a model of the criminal court system, which will reproduce challenges that lead to low reporting rates and even lower prosecution rates in sexual assault cases. A Title IX investigation is not a civil or criminal court proceeding, which we know many survivors prefer due to systemic issues around trauma and inequity in the criminal justice system. Likewise, students’ unequal access to quality counsel depending on their ability to pay a lawyer will affect the results of an investigation and put undue financial strain on both the accuser and accused. There needs to be an alternative to cross-examination that ensures equity for all parties, with consideration for factors like financial need and implicit bias.

We are concerned that the guidelines are quick to incentivize mediation as a primary means for informal resolution. Some students may not want to go the route of a formal investigation, and prior guidelines left little room for that. However, mediation is not always an appropriate avenue, as the process assumes both parties are in-part responsible for actions leading to a situation in question. This structure may imply that survivors had a role in their own assault. The DOE needs to recommend processes that center survivors or mirror restorative justice practices, and will need to provide financial support to institutions who wish to explore restorative justice-style resolutions. Mediation and informal resolution should never be used as a means to forgo an investigation or absolve a school or the accused of responsibility.

Finally, any new guidelines must include provisions and incentives for year-round prevention education at all institutions. We believe that the existing regulations need to incentivize more prevention education as part of a school’s response to assaults on campus and as a means to create positive and supportive campus culture. The Clery Act, which covers provisional crime prevention education on college campuses, is not enough to ensure appropriate cultural changes are made from kindergarten to college in terms of gendered violence and healthy relationships. More must be done, yes on college campuses, but especially for children in early childhood all the way to high school. And, if there’s more requisite education required, the Department of Education needs to ensure funding and resources to bring schools from kindergarten through college up to speed.

Mackenzie https://www.wespeakaboutit.org
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