How to Keep Yourself Safe When DeVos Takes Your Rights Away
“Do you know what a mandated reporter is?”
As I sat across from my professor after recounting an incident that happened to me earlier that day, I realized that, despite being on the e-board of Feminists United, I had absolutely no idea what the Title IX process really entailed. I had marched in rallies for sexual assault victims, helped my best friends process their sexual traumas, but when it came to getting justice for myself, I didn’t know where to start.
Title IX, which was passed as part of the Education Amendment of 1972, is a federal civil rights law that initially applied to equal opportunity in sports. The original text states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program receiving Federal financial assistance.” While this law wasn’t intended to apply to private schools, many followed suit because it became the standard at the time. In the 1990s, Title IX expanded to include sexual harassment and assault, meaning that schools had to provide resources and judicial process for anyone who experienced sexual violence or gender discrimination.
However, it wasn’t until the Obama administration’s Dear Colleague letter in 2011 that addressing issues of sexual assault on campus became a huge conversation. With the addition of this Dear Colleague letter, any college or university that receives federal funding became required to have a designated Title IX coordinator. Additionally, this letter gave more detailed language as to how colleges should understand discrimination on the basis of sex — specifically, that any act of sexual violence would fall under this umbrella. Later, “Discrimination on the basis of sex” expanded to also include discrimination based on sexual orientation or gender identity. So, while it initially started as a law to integrate sports, it became much more than that, evolving into a sort of catch-all civil rights law for anything that lay on the intersection of education and gender.
But all of this seems incredibly esoteric in the moment. When someone experiences an incident of sexual assault or gender discrimination, justice is often the last thing they think of. The priority for a lot of survivors is healing. The Title IX office at Ithaca recognizes this, and trauma counseling has become a huge part of what they do. Lara Hamburger, Campus Educator for the Advocacy Center, explained that speaking to a Title IX coordinator does not have to end in a case being filed. Instead, students can use the Title IX office as a resource to figure out their next steps.
“I think that there’s a lot of misconception that [if you speak with a mandated reporter] a case is opened and an investigation begins, but that’s not what it means,” Hamburger clarified. “In fact, at Ithaca College, the Title IX coordinators […] take very seriously allowing the student to make that choice about what happens with the information.”
When a student decides to meet with a Title IX coordinator, whether it be on their own or at the suggestion of a mandated reporter, they are doing exactly that: having a meeting. The student will not be forced into making a decision they’re uncomfortable with, and they don’t have to open an investigation. They can even choose to file a report and take no action on it immediately, but return to it later. Because the student’s agency has already been taken away to some degree as a result of the incident they experienced, the Title IX coordinators give students full autonomy to choose their next step, unless the perpetrator has threatened harm to the campus community.
“A lot of what people can use Title IX for, and end up using Title IX for, is just as a resource for getting connected to other resources,” Hamburger explained. “They can be used for getting support without going through a process.”
Hamburger gave the example of housing as a way in which a student might use Title IX as a resource. If a student has faced assault and wants to change their on-campus housing, Title IX could help them with that process. Or, if a student needs to be excused from class, Title IX could get in contact with the professor. Where it becomes tricky is when the student needs to request specifically to be away from the perpetrator; then, a formal process has to begin.
Once a student decides to open an investigation, meetings ensue. I remember from my own Title IX process that I was attending meetings almost weekly to help build my case. It can be traumatizing and exhausting to constantly relive the details, but students are welcome to take a friend with them to help alleviate some of that stress. In these meetings, the student will never be forced to be face-to-face with the accused. Both parties will supply witnesses, and each witness will give their record of the event. Unfortunately, the idea of gathering evidence is another thing that can dissuade students from reporting incidents of assault and harassment. It can feel dehumanizing and invalidating to try and prove something happened when that same something can affect a student’s daily life in ways no one else could ever detect. However, thanks to the Enough is Enough law that has been adopted by New York and California, the language has changed in an attempt to remove some of this burden.
“This is a law that has the language of affirmative consent and says that any college receiving state funding must use [this language],” Hamburger said. “It’s not ‘no means no’, but rather you have to look for that affirmative yes. It’s a much more humanizing and well-rounded standard.”
Once the case is built by the Title IX coordinator, both the accuser and the accused attend a hearing with Judicial Affairs. The hearings will be held at separate times, and the two parties will not have to come into contact with one another. Unfortunately, it can take a long time for Judicial Affairs to make a decision, but once a decision is made, they will notify both parties by email. Additionally, there is an appeals process if the outcome isn’t what one of the parties wanted.
The formal judicial process is one of the most intimidating parts about opening an investigation. After working for months to strengthen your case, it can be crushing to realize that despite your efforts, justice may not be served. Even though the climate surrounding conversations on sexual violence has changed, thanks in part to the #MeToo movement, it doesn’t mean that the actual process has changed. Survivors are coming forward more often, but that doesn’t mean they are always getting justice. Just look at the case of Kesha v. Dr. Luke: even after years of legal battle, the New York Supreme Court dismissed the case because the statute of limitations had run out on two of the rape allegations. If even someone as high-profile as Kesha can’t get justice despite overwhelming public support, then how can a college-aged survivor feel confident enough to trust the notoriously-shaky college judicial system?
“There are so many anecdotal circumstances that we can see of people coming out with sharing their experiences and being mis-believed or being blamed,” Hamburger said. “That’s changing a little bit with #MeToo… Reports on college campuses are increasing somewhat. We know that there’s a lot of internalized blame that survivors experience, and that may be an attitude of, ‘I don’t deserve the time and energy that someone else would put into this’ or, ‘What happened to me isn’t as bad as what happened to someone else.’”
And with Education Secretary Betsy DeVos’ proposed revisions, which she announced just a couple weeks prior to the publication of this article, students who wish to file Title IX reports may face even more barriers. While Secretary DeVos proposed many changes, several of them fall under the umbrella of protecting the rights of the accused. While the U.S. legal system operates on the presumption of innocence until proven guilty, that doesn’t mean that the accuser shouldn’t receive just as much support. One of the most damaging changes DeVos proposed would give the accused the right to cross-examine their accuser. This change has the potential to be so triggering to the victim that it would stymy people from coming forward. Additionally, DeVos’ changes would narrow the definition of sexual harassment that the school has to respond to, making it harder for students experiencing harassment rather than assault to get justice and support.
“One really big thing is that the scope of what they consider sexual harassment would change,” Hamburger explained. “The things that would be reportable would change quite a lot… The thing that Title IX, as it stands now, allows for is that someone who feels harassed can explore that within Title IX and say, ‘Here’s the impact this has had on me.’ With the change, it might not include some verbal harassment.”
One of the best things that Title IX does in its current state is provide a sort of rulebook for how any mandated reporter should deal with incidents of assault or harassment. Some professors may be naturally more adept than others at recognizing harassment and assault and addressing the impact; others may be more uncomfortable with it. Title IX accounts for this disparity by including a broader definition of harassment and assault that needs to be reported That way, even if the student and Title IX coordinator decide that the incident doesn’t require judicial action, at least all of the options are explored. If DeVos’ changes are cemented into the actual education law, then two professors could hear about the same incident from the same student and either report or not report based on their biases.
“It’s not so professors become tattletales for their students, but rather because there were many, many reported inconsistencies with how faculty and staff were responding,” Hamburger said. “Some people have very natural skills around this and have experience, and many don’t. So those folks who were left saying, ‘Well, I don’t even know what to do with this information,’ or even victim blaming would leave the student in a worse-off situation.”
Following Secretary DeVos’ announcement, there is a 60 day comment period in which people can express their agreement or dissent with the proposed changes. It will be open until January 28. Students may feel powerless right now, but it is pivotal that anyone who sees issue with the proposed changes writes or signs onto another comment. Additionally, those who are able should be prepared to organize protests and demonstrations to express their dissatisfaction. Title IX may not be a perfect system, but DeVos’ changes would make it even more difficult and triggering for survivors to get the support they need.
Above all, it is important to remember that Title IX in its current state is in place to provide resources to students. No one should be afraid to talk to their professor because of the misconception that a mandated reporter’s referral to Title IX means a case will be opened. No one should hesitate to set up a meeting with a Title IX coordinator simply because they fear the resources are not for them, and no one should be subjected to a judicial process that leaves them in a worse place mentally than when they began.