— 20 U.S. Code § 1681
Initially, when Professor Smith offered her the graduate assistant position, Beth was thrilled. He was one of the leading researchers in the field, and graduate students fought to be on his team. Then he started commenting on her clothes, touching her thigh when he walked by her in the lecture hall, and telling her in way too much detail about the sexual problems he and his wife were having. She wanted out. But there was no way out; just as he could make the career of anyone in the field, his word could end a career before it began. Nor was it possible to appeal to the university hierarchy. Professor Smith brought in lots of grant money, he had powerful friends among alums and major donors. The school would do its best to ignore any complaint a mere grad student might make.
The names are fictitious, but the stories are true. Variations on them happen again and again. Every year, 28.4 percent of undergraduate women and 6.8 percent of undergraduate men at colleges and universities throughout America are raped or sexually assaulted by physical force, violence, or incapacitation, usually by other students, but distressingly often by their professors or faculty advisors.
From 2015 until I retired in 2018, part of my job as Associate Dean of the Law School of the City University of New York (CUNY) was to investigate sexual harassment and assault complaints. During my time at the Law School, we had only two or three cases a year. Perhaps that was because our students are older, although 9.7 percent of women in graduate school, and 2.5 percent of men, are victims of rape or violent assault annually. Perhaps the Law School’s small size (only about 650 students in all) accounts for it, although cases have been reported not only from huge universities like Yale, Columbia, and Stanford, but from small liberal arts colleges like Amherst, Skidmore, and Vassar as well. CUNY Law is a progressive institution, devoted to diversifying the legal profession and producing lawyers who will work in public interest jobs and promote social justice. Maybe that is the reason for the low incidence; our students are steeped in gender politics. But even though the incidence of misogyny seems much higher among Republicans and other conservatives, the left is not immune. More likely, we at the Law School were just lucky.
I was lucky, too, to be working during an all too brief window when the agencies in charge of enforcing Title IX not only did so, but did so actively and responsibly. Title IX (so named because it became the ninth chapter – or “Title” – of the U.S. Higher Education Act of 1965) had been enacted in 1972. Its brief provision, quoted above, was quickly understood to mandate equality for women in hiring and pay for faculty positions, in student enrollment, and in undergraduate sports. But it was not until the late 1970s that Title IX was held to apply to sexual harassment or assault. And it took another 20 years before the Department of Education issued definitive guidelines to universities telling them what they must do when a student or employee claimed to have been harassed or assaulted, on campus or off, by another student, a faculty member, or an administrator.
Until then, the typical response of universities to harassment and assault complaints had been woeful. Despite the high incidence of harassment and assault, most chose to pretend things like that didn’t happen on their campuses. It was the fortunate woman complainant whose story was merely not believed, or who was quietly fobbed off with meaningless assurances that the school would look into it. Less fortunate women found themselves actively scorned and taunted when their complaints were needlessly made public, forced to undergo humiliating interviews, or sometimes required to withdraw from school, while their attackers suffered no or minimal consequences. Once a large enough number of students or employees had accused a professor, he might be asked to quietly take a leave for a semester, but few were fired. And women often found themselves having to continue in the same class with their harasser or rapist.
Not that the mere publication of guidelines instantly changed the behavior of universities. That took a concerted effort led by women’s groups. But, finally, by 2015, the winds of publicity were shifting in favor of believing women who’d been victims of harassment or assault, and the guidelines were being enforced. More and more colleges and universities appointed “Title IX coordinators” to shepherd student and employee complaints through investigation and prosecution. More and more colleges and universities actually began to take their duty to investigate and prosecute at least somewhat seriously, especially when the Department of Education reminded them that the penalty for a university’s failure to do so was the withdrawal of all federal funding.
Compliance was not perfect by any means. The first response of most prestigious centers of higher learning was still to hope any complaint could just be swept under that gorgeous carpet in the trustees’ meeting room. But they were, no matter how reluctantly, getting better.
I was at a small school, so our entire Title IX department consisted of only three people, and we all had other work to do as well, but of the three, one of us was Associate Dean, one was Dean of Students, and the third was head of security, so we wielded considerable authority (unlike the universities that purposely appointed only low-level staff to Title IX positions, so that the college could stage the charade of an investigation and then ignore the findings).
The Law School, though, had the good fortune to be part of a very large university that had wisely decided to be proactive and responsible in enforcing the Title IX guidelines. The City University of New York consists of 25 colleges and graduate schools and enrolls 275,000 students each year. Whenever we needed assistance in finding support for survivors or in investigating complaints, we could count on CUNY to provide it.
The major purpose of the guidelines promulgated by the Department of Education was to protect students and staff against sex discrimination in general, and against sexual harassment or violence in particular, partly by educational programs aimed at increasing awareness of the need for informed and voluntary consent in sexual relations, and partly by promptly investigating and prosecuting claims of sexual harassment or assault. We were required to do a thorough, fair, and impartial investigation, and to complete it in 60 days. And then to hand our findings to an impartial and disinterested adjudicator.
Because of the especially harmful physical and emotional effects of harassment and assault on their victims, the guidelines mandated numerous protections for complainants. If the complainant and respondent were in the same classes, we had to find a way to reorganize their schedules so that would no longer be the case. Not always easy in a small school. We were also required to recommend and provide (if they chose it) expert counseling and emotional support for the parties. Most crucially, the complainant could not be required to face the respondent, least of all to suffer something so horribly reminiscent of the rape itself, like being cross-examined by the respondent.
Respondents did complain that these procedures violated their rights as defendants. Their arguments, however, in addition to being self-serving, overlooked the key differences between a criminal trial, in which such protections for defendants are warranted, because a criminal trial may result in a felony conviction or incarceration, and an internal university proceeding, where the most serious penalty possible is termination of employment or expulsion.
Not all colleges and universities were as responsive as CUNY. But, by 2017 or 2018, more and more of them were slowly but surely coming around, albeit still half-heartedly. Google “Title IX” or “sexual assault” and the name of your favorite college these days, and its Title IX phone number and guidelines are likely to be what comes up first.
But that moment of hope came to a crashing end with the election of Donald Trump and his appointment of Betsy DeVos as Secretary of Education. She and her staff were determined to roll back everything Title IX had accomplished, and, at least in regard to sexual harassment and rape, they succeeded.
On August 14, 2020, just months before Trump was turned out of office by the American electorate, the Department of Education put into force its revised guidelines. The Trump/DeVos rules significantly narrowed the scope of Title IX, providing, for example, that Title IX applied only to sexual assaults that occurred in “campus-controlled” buildings or during college prescribed educational activities. Moreover, a victim may file a complaint only if the assailant and she attend the same university. The rules do away with the 60-day time limit on investigations, leaving the time totally open-ended, a perfect way for a college and a respondent to stall until everyone graduates, leaves, or just grows tired. The rules also significantly strengthen the hands of respondents by sharply increasing the required burden of proof — and permitting live, in-person cross-examination of complainants by any representative the respondent chooses. That could include a rapist’s parents or siblings, his fraternity brothers, or his friends, significantly increasing the likelihood of traumatizing his victim all over again. Mediation is now allowed in cases of date rape, sexual assault, and domestic violence, despite the testimony of numerous experts that being forced to sit in the same room and talk to her assailant is another sure way to re-traumatize a victim.
There is now, however, real hope that the Trump/DeVos rules will be superseded. The Biden Department of Education has put together a new set of regulations closely paralleling those in place pre-Trump. The 90-day comment period on those ended on September 14, and the agency has now only to review and to decide whether to act on the 235,000 comments it received, before it can announce that new regulations are in effect. Agencies usually take a year to a year and a half to finish that review process, so we cannot expect the return of better days until sometime between September 2023 and March 2024.
Even once the new regulations come into effect, the situation won’t be as good as it was. Once there was simply a problem to be solved: how to prevent or at least lower the incidence of sexual harassment and rape at the nation’s colleges and universities. Now, with the advent of down-and-dirty Republican politicking, something that never ought to have been politicized has been. We cannot trust that the newest guidelines, once they are in place, will last any longer than the next presidential election. Nor can we expect that these rules will be as clear, as hopeful, as understanding, or as comforting as those that my colleagues at CUNY Law School and I were fortunate to work with and learn from. Already, there are signs that the Biden Department of Education is self-censoring, making a compromise here, staging a retreat there, in the vain hope of placating the ravenous right. It may, we are told, maintain that higher burden of proof that the Trump/DeVos regulations introduced; it may re-introduce some of the benefits for respondents invented by DeVos’ minions. For Anna, for Beth, for all of us, the fight for equality, the fight for simple safety, is far from over.