The Promise of Title IX: Sexual Violence and the Law

The Promise of Title IX: Sexual Violence and the Law

The campaign led by Title IX activists has shown why we need remedies outside of criminal law to fight sexual harassment and promote equality, as much in the workplace as on campus.

Ask any student organizing against campus rape what question he or she most often hears, and the answer will likely be: why are schools handling these cases at all? The clear legal answer is Title IX of the 1972 Education Amendments, which requires most schools to take active steps toward eliminating discrimination on the basis of sex, including preventing and responding to sexual harassment, so that students can continue to learn. What is truly puzzling then, is not the question itself, but the persistence with which it’s asked.

When most people hear “rape,” they think “crime,” and only crime. This limit to our collective thinking about gender violence and what to do about it means that we overlook the distinction between criminal proceedings and the alternative that Title IX presents to students on campus. Instead of viewing school disciplinary proceedings for rape or harassment as failed attempts at criminal adjudication, we should understand them as means to a different end—to address sexual violence on campus as a civil rights issue.

The widespread confusion about universities’ roles in dealing with sexual violence casts Title IX as an anomaly. While everyone else is stuck dealing with the police, students seem to have an extra option unavailable to others: they can report sexual violence using campus proceedings and federal agencies.

Yet this account forgets that schools are not the only institutions required to combat sexual harassment and violence as a matter of civil rights. Title IX does not stand alone, nor do the students who wield it. The demands and strategies of Title IX activists build upon and parallel half a century of civil rights organizing for similar protections in the workplace. And looking back can help us understand why remedies outside criminal law are essential to keep communities safe and promote equality.

Protections from sexual harassment at work and at school share legal and theoretical roots. Title VII of the Civil Rights Act—which prohibits discrimination on the basis of sex, race, or nationality in (some) employment—was passed in 1964. Title VI of the act similarly prohibits most schools from discrimination based on race or national origin. Protection against sex discrimination at federally-funded educational institutions from kindergarten to graduation programs—Title IX—followed in 1972. Title IX is brief: it simply says that educational opportunities may not be denied on the basis of sex. But over the last four decades, the law has evolved, and today, schools are required to take affirmative steps to prevent sexual violence and to ensure that survivors can continue to learn.

While Title IX was still fresh on the books, a young Smith graduate named Catharine MacKinnon moved to New Haven for law school and joined a local women’s consciousness-raising group. There, she heard stories from female secretaries of what was beginning to be called “sexual harassment.” Based on these accounts, MacKinnon wrote a paper that became a book, published in 1979 shortly after her graduation from Yale. Sexual Harassment of Working Women introduced the legal community to a vision of civil rights law that reflected the experiences of these secretaries and many other workers—sexual harassment, understood to include sexual violence like rape, constitutes sex discrimination.

MacKinnon argued that working women were sexually harassed because they were women—and therefore that sexual harassment was a form of discrimination. Sexual harassment, she theorized, came in two forms: exchange of professional advancement (or safety from professional retaliation) for sexual favors, and hostility toward individuals in the workplace because of their sex, expressed through sexually demeaning behavior, comments, and attitudes.

In 1986, the Supreme Court bought this argument and held that Title VII prohibited workplace sexual harassment as a form of discrimination. Employers subject to Title VII were required to adopt measures to prevent and respond to workplace sexual harassment—including rape—and mistreated employees could now report harassment to the federal Equal Employment Opportunity Commission (EEOC) or sue in court. The agency and courts have also followed MacKinnon’s logic to prohibit the sexual harassment of men who, they claim, are also harassed because they are men.

Sexual harassment was rampant not only in New Haven workplaces but also on campus, said students, and it was holding women back. The same year that MacKinnon graduated from Yale, the young professor helped a group of its undergraduates file a suit against the school. One plaintiff, Ronni Alexander, had stopped playing the flute after her instructor harassed and eventually raped her. Another, Pamela Price, was presented the choice of an “A” in class in exchange for sex with her professor, or a “C” if she refused. But Yale provided no effective grievance process through which these students could complain. An environment that allows violence and harassment to take place in the absence of protections or remedies, Lisa Stone, another plaintiff, argued, deprives students of the “atmosphere necessary to . . . pursu[e] . . . a liberal education.”

The court eventually dismissed the case on a technicality—all had graduated by the time the appeals court heard the case—but Alexander v. Yale nevertheless proved to be a remarkable victory. The court held that a school’s failure to adequately remedy sexual harassment could constitute sex discrimination prohibited by Title IX. Following the decision, Yale instituted a grievance board to hear complaints, and colleges across the country followed.

While the Title IX suit MacKinnon led against Yale focused on sexual harassment by college professors, today’s student organizers have turned their attention primarily to abuse by fellow students and schools’ inadequate responses, including refusal of essential services and bungled disciplinary procedures. Despite this substantive pivot, these students rely on the legal mechanisms early Title IX advocates helped develop. Today, in a system roughly parallel to EEOC reporting, students can challenge their schools’ responses to sexual violence and harassment either in court or through a complaint to the Department of Education’s Office for Civil Rights (OCR). Complaints may be filed against a school and, if OCR finds the concerns compelling, it will launch an investigation into the college’s policies and practices, often visiting campus for interviews. Theoretically, OCR can find a school out of compliance and revoke all of its federal funding, devastating students in the process. In reality, most investigations conclude in what’s called a “voluntary resolution agreement,” in which a school agrees to policy changes and continued monitoring by OCR in order to avoid being found non-compliant. Sometimes, OCR may require specific remedies for student complainants who need emergency intervention to pursue their studies in the wake of violence. Students can also file law suits in federal court under the Title IX private right of action, much like workers can under Title VII (though workers must first file through the EEOC, whereas students may skip OCR and go straight to court). Lawsuits are arduous and public, but can provide one remedy a complaint cannot: monetary damages for the plaintiff.

Of course, the law on its own does very little: simply prohibiting sexual harassment at work and at school isn’t enough. Meaningful enforcement has come only after years of worker and student organizing. In the early years of Title VII, labor groups worked both with and against the federal enforcement agency, the EEOC, to produce a regime with more teeth. As Yale graduate student Blake Emerson has argued, organizers collaborated with civil rights groups like the NAACP to file a flood of complaints that called on the government to enforce anti-discrimination law and simultaneously demonstrated the limits of its response. These organizers ultimately kept the EEOC from adopting a narrower mandate under Title VII.

Emerson notes that today’s college students have followed a similar model, filing over 130 complaints with the Department of Education while simultaneously demanding an end to impunity. Although the government has required some colleges under investigation to improve their policies, it has historically refused to name schools that do not comply with the law, opting instead for amicable settlements. Most tellingly, the DOE has never financially sanctioned a college for sexual assault–related violations of Title IX. OCR may reasonably wish to avoid the “nuclear option” of removing all federal funding, but survivors have been dissatisfied with the agency’s unwillingness to use its other compliance tools, including transparent investigations, to shame schools for their illegal treatment of students. Like earlier generations of workers, then, students have both called on the agency for help and proved to be some of its fiercest critics, sending in record numbers of requests for investigations by the OCR while continuing to protest outside its doors. The protests have at least compelled the Department of Education to now publicly name schools that have violated the anti-discrimination law.

To be clear, on a strictly legal basis, these complaints and lawsuits have frequently failed. Even when organizers have pressed for enforcement of anti-discrimination law, the will of agencies to hold schools accountable for their violations fluctuates with administrations, and courts have often failed to take these concerns seriously. In a pair of cases, Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education, the Supreme Court announced a standard for university liability so high that it is almost impossible for student survivors to meet. Survivors must show that the school had “actual knowledge” of harm that is “severe and pervasive” (a higher threshold than would typically be required for third-party liability)—meaning, according to one court of appeals, that a single rape is not sufficient for consideration under Title IX.

Employment case law, too, traces a history of under-enforcement and unsympathetic courts. As organizers agitated for change, judges pondered whether women wearing revealing clothes had been “asking” for unwanted sexual attention from supervisors, and referred to derogatory comments as “stray remarks.” In 2013, the Supreme Court further restricted employer liability by narrowing the definition of a “supervisor” for whose conduct a company is automatically responsible.

Despite these obstacles, civil rights protections against sexual harassment, including rape and abuse, have been an essential tool for workers and students. Lawsuits and complaints often fail— but sometimes they win, and that possibility inspires both fear and action in employers and schools. Women and other groups targeted for harassment now take up more space and power in many industries as human resources departments not only seek to follow the law but also to internalize its values. University responses to gender violence, while still lacking, are undeniably improving. For individual victims, workplaces and schools can offer a range of remedies otherwise unavailable through criminal law, such as expulsion, termination, or suspension of wrongdoers; support and counseling services; and seemingly small but essential accommodations like desk changes, extensions on papers, and professor and supervisor reassignments.

Even where the law has failed, it has drawn attention to and improved public understanding of the injustices suffered by victims of sexual harassment. Civil rights law makes a normative commitment that is respected, even when underenforced, and gives victims a vocabulary with which to voice their outrage. The year after Anita Hill’s famous testimony about harassment by Clarence Thomas, for example, sexual harassment complaints to the EEOC increased by 50 percent. The agency’s enforcement was still lax—this was, after all, the agency that conservative Thomas had led when he harassed Hill. But the flood of Title VII complaints after Hill’s testimony highlighted to the public that harassment was not “just life” but instead, a threat to workers’ civil rights, with all the ethical weight such a designation carries.

Meanwhile Title IX (which has been less successful in the courts than Title VII) has perhaps served better as a symbol than a law—the broader principle that everyone, regardless of gender, should be able to learn without fear is harder to dismiss than the complaints or cases of individual students. As the understaffed OCR’s backlog grows, the deluge of complaints serves at once as an earnest request for enforcement and a public tally of continued harms inflicted upon students. Today, a Title IX complaint takes years to resolve, by which point the students who complained have often graduated. Yet filing such complaints offers an opportunity to articulate demands, garner publicity, and educate students about how they, too, can demand more of their university. For the last two years, students at campuses across the country have worn “IX” on their mortar boards at commencement ceremonies, often drawn with red duct tape, even when the law has failed to keep them safe.

Little highlights the importance of the right to protection from harassment and violence better than the hard fight of those workers who have been denied it. Certain workplaces and employment relationships are excluded altogether from Title VII coverage; exemptions include workplaces of fewer than fifty full-time employees and people who work as contractors or in other ad hoc arrangements.

In practice, these “exceptions” encompass a huge number of workers, including many women working in the most precarious conditions. Domestic workers, for example, mostly work alone, without the number of colleagues required for coverage by Title VII or state equivalents. Some states like Connecticut have reduced the number of workers required for protection from sexual harassment but still explicitly exempt domestic workers, whose labor is still largely viewed as too informal or too intimate to regulate.

Despite these exclusions, domestic workers are organizing one of today’s strongest labor movements. When we spoke to Natalicia Tracy of the Brazilian Worker Center in June, she asked, “Why shouldn’t we have the same protections as everyone else?”

Tracy is the executive director of the Center, which is based in Allston, Massachusetts. Having worked eighteen years in elder care, child care, and house cleaning, Tracy leads campaigns for better legal rights for domestic workers. When she spoke to us, Tracy was celebrating—the Connecticut state legislature had finally approved a Domestic Workers’ Bill of Rights, modeled on similar laws recently passed in California, Hawaii, and New York. Among other important protections, these statutes prohibit sex discrimination, including sexual harassment, of domestic workers.

According to Tracy, the anti-harassment provision is essential to protect domestic workers from powerful employers. Most of the women she organizes with work alone in private homes, without colleagues who can watch out for them. Most also lack the financial resources to simply quit a bad job and find a new one, and many fear retaliation from employers. Under the new Bill of Rights, domestic workers can lodge complaints with the Connecticut Commission on Human Rights and Opportunities (CHRO) if they face retribution from employers.

Interns, another sect of vulnerable workers, are also organizing for anti-harassment protections, galvanized by a failed 2013 lawsuit that revealed the law did not protect them from a boss’s unwanted sexual advances because, as unpaid workers, they were not covered by Title VII.

To organizers, sexual harassment is just one of many abuses to which intern workers are susceptible. “The language and cultural image of the intern is a young, bright-eyed know-nothing,” explains Eric Glatt, who heads Interns ≠ Free Labor. Interns, he says, are defined by their “willingness to do what they’re told.” This makes them and other temporary employees especially vulnerable to exploitation. Women, Glatt adds, are “more likely to do internships than men, and more likely to do unpaid internships than men,” and so they are also more likely than men to suffer from harm when protection mechanisms are absent or lacking. As always, inequality compounds inequality.

Although discussed in silos, today’s student and worker movements against sexual harassment forcefully articulate the need for anti-discrimination law as a desperately needed complement or alternative to the criminal justice system. For many, a criminal trial isn’t even an option; but when it is, it’s also often inadequate. Anti-discrimination law prohibits a broader range of conduct than do state criminal codes, which sometimes fail to recognize forms of verbal and emotional abuse ranging from lewd comments in the workplace to psychological violence against an intimate partner. Further, abuse against many male and queer survivors, recognized under Title VII and Title IX, are essentially ignored by some criminal laws, which tend to presume female victims and male perpetrators. As Glatt notes, complainants and plaintiffs also have “more agency” in civil proceedings compared to victims in criminal cases. In criminal cases, prosecutors decide whether and how to far to go; the Rape, Abuse and Incest National Network (RAINN) shows that only 3 percent of rapes are prosecuted.

As for those who have a shot at a day in criminal court, and particularly for survivors of color, the police are too often a source of violence rather than justice. Racial inequality, compounded by immigration status and poverty, the same factors that make workers or students vulnerable to sexual abuse in the first place, also render the criminal justice system inadequate or dangerous. Women of color are disproportionately subject to sexual violence at work, at school, and at the hands of the police. Tracy also explains that criminal responses are insufficient because many of the workers she organizes with are undocumented and fear the police. (And, unlike the Bill of Rights, criminal law won’t protect undocumented workers from retaliation by unhappy employers or immigration authorities.)

“It’s important to think about why as a society and a culture we feel like we always need to call the cops—in all situations, but particularly with sexual violence,” insisted Dedunu Sylvia Suraweera, an organizer with Intern Labor Rights, echoing a long history of anti-carceral feminists. A police response, she believes, wouldn’t begin to address the structural and deep-rooted issues that cause abuse, such as social relationships and the workplace as a site of power and inequality.

Student organizers have levied similar critiques when opposing proposed state laws that require schools to turn over reports of sexual violence to the police against victims’ wishes. These activists and Suraweera benefit from decades of work, particularly by women of color, to find alternatives to dealing with sexual abuse that lie outside the criminal justice system. Especially post–Ferguson, this approach, which has long been essential to marginalized communities, has now become salient in privileged academic and legal circles, which can no longer ignore relentless headlines documenting police brutality.

Undeniably, there are forms of physical protection that the police can offer that civil rights law and community interventions generally cannot. While anti-carceral organizers criticize the damage caused by criminalization and incarceration, most acknowledge that the current dearth of alternatives means that some victims may turn to criminal law enforcement. Yet the practical and political appeal of another solution is undeniable.

As Suraweera sees it, civil rights law aims to re-stitch the social fabric of communities that policing threatens to rend. After all, the successful resolution of an anti-discrimination complaint or lawsuit is not incarceration but remedy: courts or government agencies may order employers or schools to institute policy changes or provide victims with the support, financial or otherwise, which they need to recover and rebuild their lives. Civil rights law and the remedies it can require from schools and workplaces—from switching a shift to extending a deadline—are simply unavailable through a criminal conviction. A student may need a dorm change in addition to, or instead of, a conviction. Also, when employers and colleges follow the law, they offer a host of services, from tutoring to counseling, that may do more to ensure continued opportunities to work and learn than the one-time lodging of a criminal complaint. Anti-discrimination law, born from concerns about systemic inequality, allows for both individualized and structural solutions, while criminal law plods from defendant to defendant, victim to victim, simultaneously ignoring the unique circumstances of different victims and the shared roots of their injuries.

Organizers, though, are careful not to treat civil law as a magic bullet, however promising it may seem. It is those students fighting hardest to protect Title IX from conservative legislative encroachment that best know how schools often disregard the spirit and letter of the law when handling sexual assault cases (though a handful of responsive schools have proven this is not a task beyond a university’s competence). The corporatization of higher education has proved to be an increasingly stubborn obstacle: while Title IX promises equality, a growing industry of “campus safety” consultants have distilled the law’s requirements to a checklist for schools to avoid legal liability without threatening their bottom lines, or, for that matter, doing much to help students.

And, after all, taking any sort of legal action is a foreign concept to most people. Some legal action can be taken without a lawyer, like lodging complaints to OCR or the EEOC, or reports to the CHRO under the new Domestic Workers’ Bill of Rights. But other options like Title IX or Title VII lawsuits require attorneys, and many legal services organizations cannot secure state funding to take on these cases. Even for those who hit the pro bono jackpot or can afford a lawyer, legal action can be frightening and risky for many who cannot afford to lose their jobs.

These obstacles to access are not inevitable. In fact, the federal government and many states invest significantly in services for victims who report to the criminal justice system; similar investments in civil legal services for these victims could be made. Additionally, the state could create incentives for attorneys to take on civil cases on a contingency basis. And, perhaps most importantly, legislatures could resurrect the private right of action included in the original 1994 Violence Against Women Act, which provided a civil rights remedy for survivors unaffiliated with a university or employer. The future possibility of such programs, though, is of little comfort to those who need help today.

It would be easy but naïve to hope that civil rights law could end gender violence completely. Yet the intertwined and unfinished histories of worker and student organizing for civil protections provide, at the very least, a reminder of the many different remedies survivors seek in the wake of sexual abuse. Widespread skepticism of responses to violence outside of the criminal law ignores the ways rape is wielded as a weapon, not just against individuals, but against entire classes of people. Violence—by bosses, by classmates, by the police, by those we love—has always been a threat to equality, and to the right to both participate fully in public life and return safely to our private ones. Anti-discrimination law expresses the desire of victims and their movements to end these forms of violence, not simply through individualized punishment but by securing collective justice. Our imperfect civil rights are a start, both as a tool and a commitment, to doing just that.

Alexandra Brodsky is a law student at Yale. She is also an editor at Feministing and co-founder of Know Your IX, a national student campaign against campus sexual violence. She co-edited The Feminist Utopia Project: Fifty-Seven Visions of a Wildly Better Future, which will be published by the Feminist Press in October 2015.

Elizabeth Deutsch is a law student at Yale. Her writing has appeared in the New York Times, Politico, Bloomberg View, and other publications. She holds an MSc in Gender from the London School of Economics, where she was a Marshall Scholar.