When Title IX Is Not Enough

When Title IX Is Not Enough

Student experiments in DIY justice point to the shortcomings of the current Title IX system in confronting sexual harm on campuses.

Students at Columbia University in 2014 with a mattress in support of Emma Sulkowicz's project against sexual assault, “Carry that Weight.” (Selcuk Acar/Anadolu Agency via Getty Images)

When I was a junior in college, I ran into a problem at Art House, a combination residential hall and space for programming and events that I managed. Because we often had parties, movie screenings, and concerts, our living room was open to the whole campus. And because it was common knowledge not to go forward with any complaints under Title IX, which prohibits sex-based discrimination in educational institutions that receive federal aid—our dean of Title IX, Scott Backer, had a bad reputation even before his firing for revelations of sexual misconduct with a minor—several residents came to me with concerns about running into someone who had harmed them, or made them uncomfortable, in their own home.

Completely unsanctioned by my employers at the university, the residents and I developed a DIY safety system. First, I taped an envelope to my door where people could anonymously drop names written on slips of paper. With those names, I made a list that I would recite to the residents checking student IDs at the door (a regular school policy) on the nights that we had events. On at least one occasion, one of the named students made it through the doors. A male resident informed him that he was banned from the space and asked him to leave. He did, and as far as I know, he never returned.

The weight of this project disquieted me at the time (I was fresh from an internship at a public defender’s office in New York City and beginning to read abolitionist literature) and leaves me conflicted now. On the one hand, we had created a registry; did we not believe in people’s ability to change? On the other hand, this was people’s home, and didn’t they have the right to not want specific people there? They wanted to dance without catching someone who had hurt them in the corner of their eye; they didn’t want to spend the night locked in their room afraid of who was walking through the front door.

We were hardly alone in our pursuit of safety through ad hoc methods. The #MeToo movement, flourishing around the same time as we made our list, brought to the forefront the omnipresence of gendered and sexual violence. The Shitty Media Men spreadsheet, a privately shared Google Doc that was quickly leaked to the press, introduced a digital crowdsourcing element that took off. At schools across the nation, public and private, large and small, students created hashtags, anonymous forms that collected names and stories, and Instagram and Twitter accounts to share them.

I came to think of our list as part of a broader collection of experiments in DIY justice, a broad umbrella that includes private attempts to regulate spaces (like our list), public-facing attempts to shame institutions into action, and also more structured—but still not institutionally supported—intra-group grievance processes or restorative circles. Whether an envelope taped to a wall, a circulated list, or a social media account, these systems are imperfect. They are often messy and unwieldy; some have gotten their creators disciplined, threatened, and sued; with the exception of some restorative circles, they almost always offer no path for the accused to clear their names, work toward meaningfully changing their behavior, or recover from what can be truly debilitating ostracization and isolation.

The list we made at Art House was short, with just a half-dozen names, but it felt heavy. I worried that if we alienated these young people, they might they fall deeper into hateful, aggressive behavior. And I worried that by not telling them they were on the list or giving them any avenue to get off it, we were imitating the permanent churn of criminalization. Still, if we couldn’t go to the university for help, either through the Title IX office or through some other channel, did we have options other than coming up with some system ourselves?

DIY justice emerges from and reveals the shortcomings of existing methods for dealing with problems like sexual assault. As attorney and Know Your IX co-founder Alexandra Brodsky writes in a new book, vigilantism is a result of failed institutions and failed processes. “No one, I think, wants to live in a world where the Shitty Media Men list or bathroom scrawling is plausibly a top choice,” Brodsky writes. “The obvious solution, then, both to the sexual violence and to the dangers of vigilantism, is to provide a better alternative so victims know they can safely report through more structured paths.”

In 2011—around the same time as a new rush of news, reports, and activism highlighted the prevalence of rape on campus—Obama’s Department of Education released a “Dear Colleague” letter that instructed institutions to take sexual violence seriously or risk losing federal funding. New guidelines established a “preponderance of evidence” standard (which meant that the accused party was to be found responsible if it was “more likely than not that sexual harassment or violence occurred”), set expectations that schools eliminate cultures of sexual harassment, mandated reporting by school employees, and pressured schools to use a “single investigator” model to determine guilt. In 2017, Trump’s Department of Education rescinded the letter, and in 2020, the department released new rules. Among other changes, these rules did away with the single investigator model, narrowed the definition of sexual harassment, allowed schools to change the burden of proof to a “clear and convincing” standard, and—most controversially—mandated live hearings and permitted cross-examinations by anyone the parties chose. They also removed any requirement that schools provide Title IX educational programming, leaving it up to the individual institutions instead. The changes were widely seen as efforts to discredit survivors. In June, President Biden’s Department of Education began hearing public comments on the new administration’s forthcoming changes to Trump’s rules.

Activists like Brodsky are convinced that a better alternative can indeed come through Title IX. Perhaps it can. But without a reckoning with how past feminist demands for a government response to sexual assault expanded policing and incarceration and the racist and sexist tropes that brace them—the phenomenon scholar Mimi Kim calls the “carceral creep,” calcified in the 1994 Violence Against Women Act—the options provided by universities will continue to be too extreme and punitive, and thus insufficient. People will continue to resort to DIY justice. While many forms of DIY justice are afflicted by the carceral creep, the approach also demonstrates a willingness to experiment with systems beyond the police and the courts. With Biden’s review underway, social life at campuses resuming, and last year’s Black Lives Matter uprisings bringing abolition and restorative justice into popular conversation, the time is ripe for new, expansive demands.

 

As one of the founders of the advocacy organization Know Your IX, Brodsky helped coordinate the last decade’s wave of campus activism around sexual violence. Campaigns focused—and often succeeded—on educating students on their rights under Title IX, bringing designated offices to campuses, and getting administrations to take sexual violence and harassment seriously. There’s a strategic reason to focus on schools, Brodsky told me: they are “uniquely positioned to protect the education of young people, and there are a lot of remedies available to them that no other institution in the young person’s life can provide,” such as making counseling and tutoring available (to help compensate for any time missed).

Yet much of the high-profile activism around Title IX so far has tended to focus on punishment—expelling rapists, zero-tolerance policies—rather than prevention, or the remedies Brodsky gave as examples.

“There was a school of thought during the second wave of feminism that nothing else counted rather than punishment,” law professor Aya Gruber told me. “Lots of the Title IX litigation and activism have been [more] focused on the discipline and punishment” of individuals, rather than changing the culture around sexuality—or, even more urgently, getting survivors the resources they need. On campuses, that means that undocumented and LGBTQ+ students and students of color feel less safe and thus are less likely to come forward, especially if university police handle the investigation. In her testimony at the Department of Education’s June hearings, Thalia Charles, a student at Lafayette College and a Know Your IX organizer, recommended that to protect vulnerable students, the department must “prohibit schools from tasking campus safety or school resource officers with conducting sexual harassment investigations.”  (Local police, of course, can put those students at even higher risk.)

“The Catch-22 of focusing on discipline as the remedy,” Gruber continued, “is that you are now telling people who have been harmed that ‘nothing is good for you other than getting the other person kicked out.’ And to do that, you’re going to have to subject yourself to really stressful, taxing processes.”

The knowledge of the misery of that process was what stopped me from telling anyone at all when a consensual hook up my freshman year twisted into something else. “That could definitely be considered assault,” I remember thinking, clear as day, “but I’m not going to deal with that right now.” Even if I had trusted the administration, I knew that this incident, a he-said she-said that started with us publicly making out on a dance floor, would hardly make for an open-and-shut case, and I had no interest in putting myself—or someone else—through that process. But the true, simmering despair came two years later, when I saw the name of the same person on a scrap of paper fished from the envelope taped to my door. Had he done the same thing to someone else, or something worse? If I had made a different choice, could I have prevented it? Many students are confronted with the same options: report an incident and undergo a grueling process whose ideal end result is an expulsion? Don’t report it, like me? Or share your story in a social media post, blasting out a name to the public to warn others?

There is another option: they can join with abolitionist feminists in reversing the carceral creep in favor of something more emancipatory. This path requires advocating for the redistribution of resources. It also requires understanding the social, economic, and political nature of the problem, rather than conjuring the specter of a serial rapist lurking in the bushes.

 

In her influential article “Crime Logic, Campus Sexual Assault, and Restorative Justice,” law professor Donna Coker argued that Title IX offers a glimpse at a way out of the carceral creep. “The framing of sexual violence as a civil rights matter could provide a welcome departure from the crime-centered approach to gender violence that has dominated the United States’ response for more than two decades,” Coker writes.

In other words, if universities can adhere to the fact that Title IX’s emphasis is on civil rights—the right to an education—rather than a criminal code, they can serve as a proving ground for non-punitive frameworks. What’s more, Coker argues, because studies have indicated that many young men who commit sexual harm at college do so only once, or only while in college, there is an opportunity for public health–centered interventions:

The interactive role of peer support, problem drinking, and hostile masculinity points to opportunities for universities to disrupt patterns of sexual aggression. For schools to take advantage of this opportunity, university administrators must reject Crime Logic and instead look to change the social conditions that foster sexual violence.

Some methods of changing the social conditions would be unpopular and politically arduous—for example, abolishing fraternities and sororities, which often indoctrinate their recruits with toxic ideals around gender and sex and then provide the space for those ideas to be acted out. Coker, for her part, cites policies aimed at reducing binge drinking, including a ban or a tax on alcohol.

At my school, underage drinking was already banned in residential halls, which I believe encouraged furtive bingeing to dispose of the evidence of rule-breaking; I can’t imagine further restrictions helping much. Instead, universities could fund and support other alternatives for fun—free film series, student theater productions, and concerts can all provide students with nighttime and weekend options beyond the pregame-to-house-party pipeline in which much binge drinking occurs.

The other big piece of the puzzle, Coker writes, is peer pressure to “score” and other tropes of masculinity. These ideas can be disrupted through workshops and peer training. Workshops are not an automatic good; both Gruber and Brodsky caution against an overreliance on consultant-designed compliance trainings, which Brodsky says run the risk of being so cheesy or unrealistic that they turn people against the ideas they attempt to present. (She remembers one digital training she sat through that asked respondents if having a magazine cover with a bikini-clad Beyoncé on the cover at an office counted as sexual harassment. The correct answer was, incredibly, yes.) Student-led and student-designed workshops, by contrast—especially those that use “healthy relationships” framings to overcome puritanical abstinence- and STD-risk-centered sex-ed courses—show promise.

“I think a lot of these unhealthy sexual behaviors come from . . . people getting to college, having been completely repressed before, so they drink, they’re nervous, they drink a lot, they don’t want to openly communicate about sexuality,” Gruber told me. “I think that schools have an obligation to basically educate students about sexuality.”

College feminists can and should demand a lot of their universities on this front, Gruber says. Demands could include funding full-time summer fellowships so that students can develop sex-positive programming taught to all incoming first-years. Those same students could also be paid by their universities to teach versions of this programming in high schools, middle schools, and elementary schools in the state.     

There is statistical reason to believe such approaches work. Take the Green Dot program, a bystander-intervention training program at the University of Kentucky focused on all kinds of violence. It began on campus but soon spread to high schools across the state; a study found that over the course of five years the training led to a significant reduction in violence of all types at high schools.

It is critical that this education be intersectional, Coker writes. The dominant narrative of the rape victim as white, heterosexual, and female is not only statistically misleading but racist, classist, and homophobic in its implementation, both leading to increased criminalization and abandonment. “While some bystander intervention programs address sexist and homophobic beliefs, I have found none that address racialized gender beliefs, such as ‘hypersexualized’ and violent stereotypes of African-American men and women,” Coker writes.

Education can also be fun. That’s one of the main goals of Sexy Sex Ed, an Appalachia-based program that hosts workshops and camps and goes to schools, bars, concerts, block parties, and community gatherings. The program’s education links pleasure, consent, and empowerment—drawings of dildos and other sex toys dance across their materials—which is a far cry from the abstinence- and fear-driven education that is often the only alternative to having no sexual education at all.

The return to campus this fall is ripe for such interventions. At the College of New Jersey, Zach Gall, a prevention education specialist who works with men accused of sexual assault, is running bystander intervention and healthy relationship programming for first- and second-year students—and directing programming to third- and fourth-year students as well. Those older students “are traditionally harder to reach,” he told me. “We’re seeing this as a chance to reestablish a culture of care and really make prevention the priority.”

 

Prevention is crucial. But what about when sexual violence does happen?

Designated resource centers—with free services—could offer students walk-in appointments with a qualified counselor, who could let them know of all their options and arrange for them to get extensions on assignments or other immediate needs. Subsequent steps in any sort of process would not start unless the student requested them.

If I had such an option during college, I might have gone to talk over my uncertainty about what had happened. I could have gotten the Plan B I needed there for free, instead of asking the person who harmed me to drive me to the pharmacy and split the cost. I could have expressed my concern that he not get in a ton of trouble, but that I wanted him to understand that he did something wrong, and that he couldn’t do it again.

There are many ideas for what could happen next. Coker suggests a restorative justice process, rooted in three fundamental questions: “who has been harmed?” “what are their needs?” and “whose obligation is it to meet those needs?”

In the “conferencing” model of restorative justice that Coker outlines, first the survivor must agree to participate, followed by the accused—who must admit to having engaged in the conduct. Then there is a face-to-face meeting with both parties, a trained facilitator, any supporters from both sides, and other professionals such as an alcohol treatment provider. Coker writes:

In the conference meeting(s), the offender usually begins by describing his or her conduct. The victim follows by describing the impact of the harm, and the victim’s supporters fill in additional information. The victim has the opportunity to ask questions of the offender, such as “Why did you think this was okay?” or “Why did you choose me?”

The process, if successful, ends in a reparative plan. Plans may include victim compensation, rehabilitative measures for the offender (counseling, for example), stay-away provisions, and community service. [Restorative justice] program staff follow up with the offender to be sure that the plan is completed and with the victim to see that she or he is receiving support and that she or he has not experienced retaliation.

In certain cases, the accused could agree to take a year or so off so that the survivor could continue their education without fear. In the most extreme examples, Gruber said, “if somebody is creeping around drugging people’s drinks and raping them, expulsion doesn’t seem to be somehow too stiff a penalty.”

In a negotiation, “everything should be on the table,” Gruber said. She told me that, six years ago, she went to her provost and suggested an even more streamlined version of this approach: “an alternative resolution dispute system where representatives of the parties come together. The parties themselves don’t have to be face to face. But the representatives say ‘In order for her not to go forward with this or that measure, could he agree to do x, y, and z? And could the school facilitate him in doing x, y, and z?’” According to Gruber, the provost wrote it down and nothing ever came of it.

The reason? “They thought it wasn’t possible under [Obama’s] Dear Colleague letter and figured we’re not going to test it.” Strangely enough, the changes to Title IX rules under Trump’s Secretary of Education Betsy DeVos opened the door to allowing informal resolution and mediation—in other words, restorative justice—under Title IX. The Biden Department of Education should keep those measures, or introduce ones explicitly tied to restorative justice that allow schools the flexibility to respond case-by-case based on the students’ needs.

At the end of the year I managed Art House, I tore the envelope off my door and threw it away. We all went on to live different places the next year. I’d like to think that the residents had some good nights of dancing in our home. But without linking our efforts to a larger project, the experiment in DIY justice ended when we returned our keys, leaving the ethical questions lingering behind.

Today, college feminists have an opportunity to use the old forms of Title IX activism on campus to move forward with new attitudes about sexual harm—attitudes driven less by fear of stretches of dark campuses and more by new understandings of desire, and new alliances with anti-carceral organizers who have developed robust restorative and transformative justice processes. They can flip the old paradigm that colleges are hotbeds of both sexual assault and feminist overreach and prove that there are other, more abundant ways to keep us all safe.


Lyra Walsh Fuchs is editorial assistant at Dissent.


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