On a blistering day in mid-July, several dozen college students rallied on an unshaded plaza in front of the Department of Education’s headquarters in Washington, D.C., wearing their schools’ colors and carrying megaphones. When Martha J. Kanter, the undersecretary of education, heard their shouting and emerged from the air-conditioned building, they handed her a stack of boxes containing a petition with more than 100,000 signatures. The petition called on the government to take a more punitive stance against universities that fail to protect survivors of sexual assault. These schools, the document declared, are in violation of Title IX, a law that prohibits discrimination on the basis of sex in higher education.
The rally was just one part of a growing national movement of college students, alumni, and faculty who are fed up with universities’ unwillingness to reform their policies on sexual violence, which they say punish survivors for reporting assaults and give lenient sentences to rapists. On August 6, a group called Know Your IX—founded by many of the same activists who attended the rally at the Department of Ed—launched a website that offers information to fellow students about their rights and provides tools for effective advocacy around sexual violence. Another group called End Rape on Campus provides logistical support for students who want to launch a complaint against their school.
These national groups have pushed a sluggish bureaucracy to make some impressive changes. Thanks to their efforts, the Department of Education’s Office of Civil Rights (OCR) is investigating 39 schools—including Swarthmore, Occidental, the University of Southern California, Dartmouth, the University of California at Berkeley, Yale, and the University of North Carolina at Chapel Hill—for possible violations.
So far, the complaints have resulted in a series of agreements between universities and the OCR that are less comprehensive than the activists hoped. Now activists are facing a new challenge: Even after promising reforms, schools are making small policy changes that have little impact on the way the survivors and perpetrators of sexual assault are treated. The problem is that universities aren’t tackling the underlying cultural attitudes that make campus sexual violence so pervasive.
These tensions are coming to a head at Yale, the campus where the new wave of the movement against sexual violence began. Activists at Yale had been petitioning the administration for decades to adopt a more serious policy on sexual violence. After years of getting the institutional runaround, enlisting the federal government’s help was their only option.
In March 2011, a group of sixteen Yale students and alumni filed a Title IX complaint with the OCR. It alleged that by “failing to eliminate a hostile sexual environment on campus,” Yale was in violation of Title IX. They pointed to a series of inflammatory incidents as proof; one had occurred just months earlier, when members of the Delta Kappa Epsilon fraternity—a good ol’ boys club if there ever was one (alumni include both President Bushes)—marched past Yale’s Women’s Center as part of a pledging activity, chanting, “No Means Yes! Yes Means Anal!” and “My name is Jack, I'm a necrophiliac, I fuck dead women.” The university held a public forum, the president of the fraternity apologized, and the fraternity suspended pledging activities. Eventually, Yale banned DKE from campus for five years, but the university seemed content to slap the frat on the wrist until after the federal complaint was filed. At the same time, another agency within the Department of Education was wrapping up a seven-year investigation of Yale’s noncompliance with the Clery Act, which requires schools to report sexual-assault statistics. Yale was eventually fined $165,000 for Clery Act violations, but pleaded the amount down to $155,000—an almost laughable sum for a school with an endowment of $19 billion.
The spring of 2011 was a turning point for campus sexual assault survivors and advocates across the country. The complaint against Yale was followed weeks later with a letter addressed to universities that receive federal funding, signaling that the Department of Education was ready to get serious with schools that were in violation of Title IX. Russlyn Ali, the Assistant Secretary for Civil Rights, cited a survey conducted for the National Institute of Justice finding that nearly one in five women and six percent of men are victims of actual or attempted sexual assault during college. “The Department is deeply concerned about [sexual violence],” Ali wrote, “and is committed to ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school’s programs and activities.”
The letter outlined universities’ obligations under Title IX. “It was a very important signal that the Department of Education was ready to treat this seriously and hold schools accountable for not meeting their obligations under the law,” explains Fatima Goss Graves, the vice president for education and employment at the National Women’s Law Center.
But the limitations of the OCR’s power soon became clear. By June 2012, the OCR and Yale had come to an agreement, which left the university in a strange limbo. Yale avoided being labeled “noncompliant,” which could have resulted in a total loss of federal funding. Instead, Yale entered into a “voluntary resolution agreement” with the OCR. But it was not “compliant” either. Under the agreement, the school promised to update its grievance policy, which students had disparaged as “unclear and confusing”; establish new training on sexual misconduct for students and staff; create a new vice president for student life; and launch a Title IX working group. Yale also began releasing biannual reports on the outcome of sexual-misconduct cases, a level of transparency few schools offer. The OCR said that it would monitor Yale at least through 2014.
Now, the latest sexual-misconduct report from Yale has led some to doubt whether the university’s practices changed along with its policies. It shows that of the six students who were found guilty of “nonconsensual sex,” in a six-month period only one was given a two-semester suspension. The rest were punished with a combination of written reprimands, counseling, and orders to stay away from the complainant.
The report’s light sentences are particularly disturbing because, according to a study of incarcerated rapists conducted by psychologist David Lisak, repeat predators account for nine out of ten rapes on college campuses. “Lisak's work debunks the myth that campus rape is really just a ‘misunderstanding’ between two people,” says Amada Sandoval, director of the Princeton University Women’s Center. “A very small percentage of offenders commit most rapes—and many of them rape multiple times.”
Overall, Yale’s case casts doubt on whether voluntary resolution agreements—which the OCR has also adopted with several other institutions—place sufficient pressure on recalcitrant universities. “Yale, like many of these institutions, did make some important structural changes. It’s now much clearer how someone should report sexual violence,” says Alexandra Brodsky, one of the sixteen original complainants, a 2012 Yale graduate who will enroll in Yale Law School this fall. “But what I’m hearing from survivors is that the responses they’re getting from administrators are exactly what they were before.”
As it wraps up investigations at other schools, the OCR is for the most part replicating its agreement with Yale, relying on universities’ promises to reform rather than issuing sanctions. In May, the OCR came to a voluntary resolution agreement with the University of Montana, even though the school’s policies and attitudes toward sexual assault were arguably worse than Yale’s. The investigation was a response to a series of sexual assaults that involved football players. In one case, a student said that she passed out after drinking and woke to find herself being raped by five men, including four football players. Although the University of Montana had, like Yale, been in violation of numerous Title IX regulations (the student newspaper obtained e-mails in which an upper-level administrator wondered whether a student who spoke publicly about her rape could be punished under the school’s code of conduct), the OCR praised its reform efforts. Like Yale, the University of Montana agreed to a wide range of policy changes. The OCR optimistically declared that the agreement “will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” But the “blueprint” did not include any consequences if the university failed to measure up within its three-year probationary period.
It’s clear from the growing number of amicable agreements that the OCR would rather cooperate with schools to improve their policies instead of finding them noncompliant. According to Jim Bradshaw, a spokesman for the Department of Education, “In virtually all cases OCR is able to negotiate a resolution agreement to address compliance issues short of having to move to enforcement.”
Dana Bolger, one of the founders of Know Your IX and a rising senior at Amherst, remains optimistic that the OCR will fine universities who do not comply with Title IX. But it’s possible that the OCR may not have the power to issue fines—or if they do, they will not choose to exercise it. That leaves the most dramatic of punishments alone on the table: loss of federal funding, which would devastate scientific grants and financial aid. For obvious reasons, the OCR has never taken this action—and Bolger doesn’t want them to. “Cutting off financial aid for students would be horrible, and wouldn’t fix things on campuses,” she says. “I think in some ways it would make things worse.”
But lobbying the OCR isn’t activists’ only strategy. Media hubbub over the complaints can be a more effective weapon than the federal government. Brodsky recognizes the role that a scarlet letter can play, especially for elite universities like Yale. “At a certain point, a complaint, even if it doesn’t result in any federal sanctions, is embarrassing, and it does lead schools to act,” she says. “Public shaming is pretty effective.” At Yale, upper-level administrators understand that recent online outrage over the new sexual-misconduct report is bad for the university’s image. Five days after the report was released, Yale’s President, Peter Salovey, wrote an e-mail to the Yale community saying that the university would release more information about the process for investigating and reporting sexual-misconduct complaints.
In the next few months, Brodsky, Bolger, and others will continue to lobby the Department of Education to enforce more punitive measures for noncompliance. But they will also encourage the OCR to investigate schools it suspects may be violating Title IX without waiting for a complaint to be lodged. Currently, 10 of the 39 cases under investigation were OCR-initiated, but Bolger says that’s not enough. “Filing a complaint can be a traumatizing and time-consuming process,” she explains. “The OCR needs to take some of the initiative.”