Ending College Sexual Assault
Can Obama’s new campaign bring change?
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Can Obama’s new campaign bring change?
In the fall of 2011, a student we will call Maya arrived at Michigan State University for her freshman year. She had come to East Lansing from her small-town high school to pursue an education in law and public policy, and in a required math class during her first semester she met a fellow freshman who also happened to live in her dormitory. We will call him Robert. Neither Maya nor Robert knew much about the other, but they bonded over the generic annoyances that mark the first days of college — dining hall food, neurotic professors, and their shared realization that they were no longer the smartest kid in every room. Maya, who had always excelled at math, became Robert’s unofficial tutor and the two frequently studied in one another’s rooms.
Despite the early intensity of Maya and Robert’s relationship, it never went beyond platonic shows of affection. At times, Maya suspected Robert might be interested in something more, but he didn’t make any physical advances until, one night in October at a study session, despite several clear verbal and physical refusals, he forced himself on Maya and attempted to rape her.
In the direct aftermath of the attack, which only ended when Robert’s roommate barged in, Maya retreated into what she called “normal victim reactions.” Despite having spent time in Robert’s room before the assault, she kept wondering why she had gone over on that particular night. Could she have seen it coming? “He was my best friend,” Maya explained. “How do you expect that? What are you supposed to do when your friend does that to you?”
Internally, Maya tried to play the assault off as if it had not happened and went back to seeing Robert socially. They ate meals together in the dining hall and hung out in large groups, but some mutual friends began to notice that Maya seemed more detached whenever he was around.
Robert’s attempts to initiate a relationship continued throughout the early months of their freshman year. Maya found herself caught in a cycle of abuse wherein her assailant doubled as her only real emotional support. Robert began telling her about his suicidal ideations and although Maya knew, at some level, that she was being manipulated, she could not fully shake her concern for his welfare. “I’m just a caring person,” Maya told me. “I guess I’m caring to a fault.”
Later in the semester, Robert sexually assaulted Maya again, this time in the stands at a football game. Robert slid his hands underneath Maya’s sweater and down her pants. When she told him to stop, he said that he had to keep his fingers warm. When she tried to move his hands, Robert pinned her arms down and continued to grope her under her clothes. When Maya’s protests finally caught the attention of nearby fans, Robert stood up and asked her to come back to his room with him. Bewildered, Maya refused, and Robert stormed off in a rage.
“It became absolutely clear,” Maya said of the second assault, “that he felt like he owned me. I was terrified.”
The second assault set off weeks of intense personal withdrawal that Maya classifies as “a disassociation from self.” She feared going to class or anywhere she might encounter Robert. She fell behind in her studies and felt too unfocused to conduct daily chores. Then she attended a seminar on gender violence that outlined patterns in abuse and assault between college students who knew one another and the months of self-blaming and confusion cleared, at least a little. “I realized that he was never going to change, no matter what I said to him,” Maya told me. “It was going to keep happening.”
During a visit to a friend’s dorm room, Maya had a near out-of-body experience. She began to hyperventilate and almost lost consciousness. “I just kept staring at that clock on the microwave,” she explained. “That’s all I remember, the blinking clock.” This was the first of a series of panic attacks that continue today.
Alarmed, Maya’s friend contacted her Resident Advisor, who, upon hearing about the sexual assault, followed protocol and notified the dormitory’s Building Director. The Building Director alerted the Michigan State Campus Police, who arrived, and, on seeing Maya’s condition, urged her to go to the emergency room. Maya refused, reasoning that once she entered the hospital her parents would be notified and she didn’t want them to know what had happened to her. Instead, she was taken to the MSU police station, where she filled out a report that included information about the two assaults. That night, the campus police went to Robert’s dorm room and questioned him. He claimed to not remember anything and was released.
In late April of this year, a committee called the White House Task Force to Protect Students from Sexual Assault released a twenty-page report titled “Not Alone,” which included strongly worded statements from President Barack Obama and Vice President Joe Biden on the epidemic of sexual assault on college campuses. The report, which came out of months of conversations between Obama Administration officials, activists, and experts, led with a chilling statistic: “One in five women is sexually assaulted in college.”
The issue of college sexual assault has a long history in the Obama Administration. In 2011, a “Dear Colleague” letter written by Russlyn Ali, then the Assistant Secretary for Civil Rights in the Department of Education, cited the same one in five statistic. Like the White House Task Force, Ali laid out a prescriptive plan to improve the reporting and handling of sexual assaults at schools across the country. It’s hard to differentiate between the suggestions made by the two documents. Both call for schools to take greater responsibility. Both suggest improved reporting, grievance, and counseling procedures for students who have been sexually assaulted. Both reference Title IX of the Educational Amendments of 1972. In fact, outside the issue of punitive enforcement for delinquent schools, the two documents are so similar in tone and content that one begins to question why they might have been published three years apart by the same administration. What happened between 2011 and 2014 that necessitated a sterner, more threatening letter from the President?
Up until the spring of 2011 — just before Maya’s freshman year — every college and university handled sexual harassment and assault claims in their own way. There are (and have long been) federal guidelines, but they were so infrequently enforced that the vast majority of campus administrators didn’t even know they existed. One victim might be funneled straight to law enforcement while another might be persuaded to keep within the friendlier confines of the school. These discrepancies in treatment often occurred even within a single school — if your dean believed that every claim of sexual assault should be handled by the District Attorney’s office, you would most likely enter into a legal system that arrests less than 10 percent of reported campus assailants and convicts far fewer. Otherwise, your case might go to an intra-school judiciary process, which meant that the same people who decided whether you had cheated on your final exam would also adjudicate whether you had been raped. A different dean might tell you to quietly rethink what had happened that night, or, in a surprising number of cases, ask you to leave campus until your assailant graduated. This was chaos, but it was an accepted chaos.
Then, on April 4, 2011, the DOE published Ali’s “Dear Colleague” letter, which reminded schools across the country of their responsibility to uphold all parts of Title IX, specifically those regarding sexual harassment and violence. Although the Letter stopped short of explicitly assigning blame for what Ali referred to as “deeply troubling” statistics, it clearly implied that schools were failing to adequately protect their students.
Title IX is best known as the federal statute that ensures equal gender opportunity in college sports but the law extends far beyond the playing field. The language “prohibits discrimination on the basis of sex in any federally funded education program or activity.” Protections against sexual harassment have been included under Title IX since 1980, when a group of plaintiffs working with a young lawyer named Catharine MacKinnon sued Yale University after it declined to install a centralized grievance procedure for sexual harassment, a term that did not yet legally exist. The core of the plaintiffs’ claim was the assertion that sexual violence toward women impaired their ability to receive an education and was therefore illegal under Title IX. The suit was thrown out by the District Court, largely on the technicality that the majority of the plaintiffs had graduated, but the reasoning in the case — that sexual violence and harassment constitutes sex discrimination — was upheld.
The ruling remained mostly dormant until 2009, when the OCR began to investigate the issue of sexual assault after the gang rape of a fifteen-year-old high-school student in Richmond, California made national news. “It became clear really quickly,” Ali explained, “that many [campus administrators and faculty] did not understand their Title IX responsibilities or their civil rights responsibilities. What was more alarming was that they didn’t really know what to do when it came to sexual violence in general.”
To address this problem, Ali’s “Dear Colleague” letter listed several guidelines, including the adoption of a “preponderance of evidence” standard in sexual harassment cases. The majority of schools had previously operated under “beyond a reasonable doubt” or “clear and convincing” standards, both of which require a high level of certainty. Although no standard legal definition exists, a conviction under the “preponderance of evidence” generally requires a 51 percent certainty that a crime took place.
The letter immediately stirred up controversy. Calls from confused administrators flooded the OCR asking for guidance on scenarios that Ali called “mind-blowing” for their severity and ubiquity. Along with the questions came a backlash against what many felt were new, independently sanctioned regulations. Several school administrators and pundits from both sides of the political spectrum argued that lowering the standards of proof would violate the due process rights of the accused. In a column published in The Chronicle of Higher Education, Christina Hoff Sommers, a self-described critic of late-twentieth-century feminism, argued that the new standard would have ensured the expulsion of the Duke Lacrosse players who had been falsely accused of rape in 2006.
There was even confusion about what legal terms like “conviction” and “preponderance of evidence” would mean in the context of a school. Campus disciplinary boards and honor courts generally employ a mix of students, faculty, and staff, none of whom have legal training in criminal matters. Would a school have to show a higher “conviction” rate to avoid investigation by the OCR? And how would these new in-house standards co-exist with the state and federal justice systems, which, of course, require a “beyond a reasonable doubt” standard for all criminal cases?
The letter was flagged by the DOE as a “significant guidance document,” but none of the suggestions were binding. Still, in the months following the letter’s publication, several high-profile universities, including Michigan State, radically restructured their protocol. In many cases, the responsibility for handling complaints transferred to schools’ designated Title IX coordinators, whose duties had previously pertained mostly to sports, and who now found themselves thrust into the position of investigating serious crimes. University counsels, propelled by a threat in the letter that non-compliance could lead to large fines, and, in extreme cases, the pulling of federal funding, worked with private law firms like O’Melveny and Myers of Los Angeles and Pepper-Hamilton of Philadelphia to lay out PR strategies and to write policies that would fit the letter, if not the spirit, of the OCR’s new guidelines.
Meanwhile, campus activist groups, fueled by the clarity of the letter, changed course. Rather than merely providing counseling and emotional support and raising awareness on campuses, they now began encouraging survivors to file federal complaints to the Department of Education. An online movement rooted in the feminist blogosphere began building as well. Activists and survivors at Amherst College, Tufts University, Yale University, and the University of North Carolina started to meet one another through social media, message boards, and the comment sections of online narratives of assault. By early 2013, the movement, which often convened on a well-guarded Facebook page, had an unofficial name, “The IX Network,” and a mission: to hold schools accountable for their responsibilities under Title IX. Within a year, the activists working within the IX Network would file dozens of federal complaints against schools across the country. They would also mount a stunning media campaign — outing accused sexual assailants before any investigation had taken place, and casting universities and their administrators as callous, craven enablers of campus rape culture — that eventually led to the creation of the White House Task Force.
But as these massive, slow-moving, eminently careful institutions ground down into legal gridlock, cases like Maya’s — that of a quiet girl at a huge school — were largely ignored. This is not a fable about a bright, hopeful young woman from a small town whose big dreams were dashed by a sexual predator. Maya’s narrative, instead, is one of unnerving institutional failure at a school desperately trying to adapt to changes demanded by the Department of Education.
The investigation into Maya’s assault began early in the spring semester of 2012. At first glance, Michigan State’s system had been set up to be receptive to cases like hers. In response to the Dear Colleague Letter, the school had rebuilt its policy under Paulette Granberry-Russell, the school’s Title IX Coordinator and a former family court lawyer with fifteen years of experience in handling sexual abuse cases. Today every allegation must be relayed both to the MSU Police Department and to an organization called the Office for Inclusion and Intercultural Initiatives (I3). I3 acts as something of an autonomous court within the university; it has no involvement in any other form of student discipline and the I3 administrators went through extensive training, consulted with legal scholars who specialize in Title IX law, and attended seminars and workshops put on by the OCR.
Maya initially had no interest in seeing Robert go to jail or dragging him through a lengthy legal process; she only wanted to attend school without having to see him on a daily basis. Her case seemed perfect for the new guidelines. While the evidence against Robert, which included text messages between Robert and a friend discussing the attack, fell short of “beyond a reasonable doubt,” it did strongly indicate that Robert had engaged in unwanted sexual contact.
Michigan State processes every claim of sexual misconduct, whether an inappropriate email sent between colleagues or a forcible rape, under the category of “sexual harassment.” This broad classification, according to Granberry-Russell, comes out of the complicated nature of the claims and the flexibility needed to ensure the protection of both the victim’s and the alleged assailant’s rights. “Sexual assault and rape are inherently sensitive and difficult cases and no one instance represents a generalized experience,” Granberry-Russell explained. According to the Dear Colleague Letter, a typical investigation into a sexual assault on campus takes no longer than sixty days, which ensures speedy due process for the accused and protects the safety and well-being of the victim. Michigan State has much more fluid guidelines which give up to 120 days. But for the next five months, an I3 administrator conducted interviews with Maya, Robert, and witnesses.
In presenting her case, Maya had submitted the contents of her police interview and transcripts of text messages sent between Robert and a mutual friend in which Robert admitted to the first assault. That mutual friend and Robert’s roommate also acted as witnesses to Maya’s deteriorating mental state and Robert’s attitude toward sex and women. But from the outset, Maya noticed details in the draft reports of her statement that did not coincide with what she had told the police. The assault was initially reported as a one-time event. Mays says that graphic details she provided were softened or omitted. She wondered if I3 had even received the police report and she argued back and forth with the administrator about the specific wording. She would send corrections with details that were exceedingly painful for her to relive, but when each new draft appeared, other facts would have been changed to mitigate the severity of her claim. These sections were supposed to reflect only Maya’s narrative, not any after-the-fact speculation. “They tried to filter me down,” Maya said.
The politics of sexual violence are inextricably entwined with the words chosen to describe the act. On college campuses, the lexicon of rape and sexual assault has taken on some odd, misshapen growths and mutations. What is rape at one institution is sexual misconduct at another is aggravated sexual harassment at another is non-consensual sex at another. Nearly everything about a case — the investigation, the punishment, the outrage, and the involvement of law enforcement — is affected by the way a school chooses to describe it.
Yale University has come under considerable scrutiny over the past few years for the growing feeling that it has been using the slippery semantics of sexual assault to downplay claims. Back in October 2010, pledges at the Delta Kappa Epsilon fraternity staged a fake rally on campus in which they chanted “No Means Yes” and “Yes Means Anal.” Despite protests from women’s advocacy groups on campus, the incident was initially classified as a “public disturbance.” Only a pending investigation by the OCR compelled the University to suspend the fraternity’s charter for five years. At the start of last school year, the university came under fire again for their use of the word “nonconsensual sex” to describe all instances of sexual assault. The University used this wording to hand out reduced punishments to offenders — in one case to an assailant who, due to scheduling technicalities, received what amounted to a one-day suspension. In response to the outrage, Yale attempted to define “consent” through a series of hypothetical scenarios involving fictional students with gender-neutral names like Ryo, Harper, Cameron, and Ansley and their complicated dating and party lives. (An excerpt: “Once in the room, they begin touching. Each is interested in hearing what the other wants, and each is paying attention to the other’s signals. They reach and sustain clear agreement upon mutually desired sexual activities.”)
Yale, like Michigan State, had put such a broad strata of sexual misconduct under a single term that nearly any claim could be diluted and downgraded into a lesser charge. The clearest incentive for schools to reclassify sexual violence claims comes in the form of something called the Clery Report. In April of 1986, a Lehigh University freshman named Jeanne Clery was brutally raped and murdered in her dorm room. After her killer had been sentenced to death by electrocution, the Clerys launched a campaign that eventually led Congress to sign what is now called the Clery Act, which mandates that schools disclose all information about crime on their campuses in an annual report.
To thousands of college applicants a year, a school’s Clery report doubles as a referendum on its safety, particularly in regards to sexual assault. Over the past two years, students at several universities, including Swarthmore, Dartmouth, and the University of California, Berkeley, have filed Clery complaints that accuse those schools of routinely misfiling, misclassifying, or ignoring reports of sexual assault in an effort to get their numbers down. Early in the spring of 2013, for example, Ariella Mostov, then a senior at the University of Southern California, reported a rape to the Los Angeles Police Department and her school’s Department of Public Safety. When she inquired why the claim had not been acted upon, she found that the school had labeled the incident an “injury response.”
There are other, much simpler ways to keep Clery numbers down. In January 2013, Melinda Manning, a former assistant dean of students at the University of North Carolina, joined four others in a complaint filed to the Department of Education. Manning alleged that in 2011, the Office of the University Counsel, the branch of the school that provides legal advice to the faculty and administration, informed Manning that the number of sexual assaults she had reported for the previous year was “too high.” She was subjected to a barrage of harassing phone calls and emails from colleagues asking her to make sure that she had done her due diligence. “It was subtle pressure,” Manning explained. “Multiple times, someone from the University Council would tell me to recount my number.” When the final report came out, the university’s administration had changed the number of reported forcible sex offenses from 22 to 19 without ever informing Manning of the change.
Manning resigned from her position at the end of the fall semester. In an open letter titled “The Dear Colleague Revolution,” she discussed her failed attempts to change sexual assault policies at UNC. “I began to see how we were fundamentally failing not only survivors, but all female students on our campus,” Manning wrote. “While my institution certainly no longer had any overt barriers for women, the myriad ways we mishandled sexual and relationship violence cases certainly hindered many women’s abilities to pursue their education.”
This underreporting of sexual assaults is made all the more troubling by problems inherent to the Clery Act itself. Only incidents that occur within the loosely defined boundaries of the campus fall within Clery jurisdiction, meaning that a rape at an off-campus party does not count towards the final tally. In 2008, Eve Carson, then the student body president at the University of North Carolina, was savagely murdered by two young men from a nearby town who stole her ATM card to make $1,400 in withdrawals. Her body was found less than two miles from campus, which meant that the crime didn’t show up in the Clery report for that year, leaving Manning in the position of having to tell prospective families that there had been no murders on campus in the previous year. “What we’re seeing with Clery,” Manning said, “is just the tip of the tip of the iceberg when it comes to violent crimes against women.”
The report on Maya’s case was finally completed by I3 on August 6, 2012, 164 days after her initial claim and 104 days past the OCR’s suggested guideline. The officer assigned to the case found Robert to be in violation of Michigan State’s Sexual Harassment Policy. Robert’s future at MSU would be decided by a Judicial Affairs Board made up of students, faculty, and staff. But because the school year had already come to a close, Judicial Affairs chose to delay the decision until the fall semester.
On its face, Michigan State’s response points to an administration trying its best. When Maya, a few months after her assault, went to see a prosecutor in the Ingham County District Attorney’s office, she was asked what she was wearing on the night of the first assault and if she had consumed any alcohol before being told that there was not enough evidence to prove sexual assault beyond a reasonable doubt. But I3 not only took up her claim, it also found Robert guilty. In Maya’s case, Michigan State clearly offered a more sympathetic alternative to the criminal justice system — but that doesn’t necessarily mean that it created a safe learning environment. Throughout the nine months it would take for the school to render any definitive judgment, Robert stalked Maya around campus. He would try to confront her in the dining hall. He would stare at her when he passed her in the hallways. Maya feared that he might do something to hurt her. She started asking friends to accompany her to places where she knew he might be. Each of these encounters triggered an intense panic that would later be diagnosed by a mental health professional as symptoms of post-traumatic stress disorder.
On November 21, 2012, a full 291 days after her initial complaint, Maya received notice that Robert had accepted the finding of the I3 report, thereby admitting that his actions violated MSU’s sexual harassment policy. During those 291 days, Robert was free to go about his life as an MSU student without any repercussions. This is the list of Robert’s sanctions: He was given probation, which meant that any further transgressions during his time at MSU “may result in more severe disciplinary action.” He was given education counseling on “sexual harassment/sexual assault and implications related to the work place, educational settings and the private sector.” And he was asked to write a report about what he had learned in this class. He was told that he could not contact Maya in any way and was barred from entering the dormitory in which she lived.
But there was one logistical problem with the last sanction: At the start of her sophomore year, the Department of Student Life, the same organization that had adjudicated the sanctions and that strives to “provide faculty, staff and students with the means to resolve conflict peacefully and to help restore members of our community when harm is done,” placed Maya and Robert in the same dormitory.
While Robert faced few consequences, Maya continued to suffer, as did her schoolwork. Aside from a concerned professor who gave her extensions on deadlines, she was granted no accommodations. She says she was not given any reason why Robert had been handed such a light punishment. She asked that Robert be moved out of their shared math class; that request was denied, and she was offered audio recordings of the class as recompense. She asked that Robert be transferred to another part of campus housing; she was told that she could move if she so wished. “There was really no escape, no matter what I did,” Maya explained. “The burden was placed on me.”
Over the next academic year, Robert violated the no contact order on eight separate occasions. According to Maya’s allegations, Robert would sneer at her or swerve his walking path so that she would have to stop in her tracks. In one instance, he saw her clear distress and laughed at her. “Knowing someone has violated you so horribly before and seeing them two feet away from you is absolutely terrifying,” Maya told me.
In February 2013, Maya was granted a Personal Protection Order, the State of Michigan’s version of a restraining order. In early March, she filed another complaint with I3, this time claiming that Robert had violated the no contact and the no retaliation sanctions handed down by the University. Two separate witnesses corroborated Maya’s story, but in May, after hearing testimony from Robert and his own witness, the I3 determined that there was not sufficient evidence to support her claim.
As part of their decision, I3 found that Maya’s general “distraught demeanor” mitigated the seriousness of her claims and speculated that Maya’s “general displeasure” upon seeing Robert around campus might give her reason to “fabricate the seriousness” of Robert’s actions. They based their decision, in part, on their belief that the process had also caused Robert considerable stress, which, according to their report, made his version of the story more credible. “They made it seem like my PTSD was turning me into a liar,” Maya said.
What options did Maya have left? When she requested help from the school, she was given a document explaining the extent of Michigan State’s legal obligations. She did not consider a civil lawsuit against the university because, despite the treatment she had received from I3, she did not want to compromise her future at the school. But had she tried, two Supreme Court precedents — Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education — would have made litigation nearly impossible.
Gebser v. Lago Vista Independent School District involved a ninth-grade student who had been harassed, fondled, and then engaged in a sexual relationship with her English teacher. The Supreme Court ruled 5-4 in 1998 that the school district could only be held liable for the abuse if the appropriate administrator had previously known about the infraction and if the school had shown “deliberate indifference.”
With those two words, “deliberate indifference,” the Supreme Court created a new standard for whether or not an educational institution could be held liable for sexual abuse. Although Gebser was a case involving a teacher and a student, the court upheld the “deliberate indifference” standard in 1999 when they ruled in Davis v. Monroe County Board of Education, a case about a fifth grader who had been sexually harassed by a classmate, that cases involving student-on-student harassment should be adjudicated under similar logic. While delivering the majority decision, Justice Sandra Day O’Connor wrote that a school was only responsible if it was “deliberately indifferent to sexual harassment, of which the recipient [school] has actual knowledge, and that harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” The language of Davis has been applied to hundreds of cases since 1999, but in only a small handful of these cases did a court find a school district guilty of “deliberate indifference.”
This is because nearly any response by an educational administration can clear the minimum legal threshold. In Maya’s case, the fact that Michigan State investigated the claim and put together a report would clear it from litigation regardless of what the report found or any gross negligence that might have occurred in both the investigative and punitive stages. When asked to quantify the effect of the two cases, Catherine MacKinnon, the lawyer in the first Title IX suit and now a law professor at the University of Michigan, said, “what schools started doing after Gebser was they would hold a hearing and blow the claimant off completely. As long as they did that, nobody could sue them for anything.” She continued: “There is no bottom line, no backstop, no place for people to fall to if nothing effective is done. Adults at work have more rights at work than their children have at school.”
Help finally came for Maya in the form of a Facebook page.
In March 2013, she read an article in The New York Times about a movement of sexual assault activists on campuses across the U.S., including Andrea Pino and Annie Clark, two of the four who had joined Manning in her complaint against the University of North Carolina. Intrigued, and desperate for any sort of help, Maya reached out to Pino and Clark, who, in turn, introduced Maya to a secret Facebook page that serves as something of a staging ground for a national, grassroots movement.
While the network initially had no official mission statement or centralized leadership, their activism focused on two areas: The first was to educate students about the prevalence of sexual assault and about the federal protections afforded them under Title IX. The second was to provide emotional support for victims. In less than a year, this network grew to more than a thousand survivors and compelled dozens of claimants to start the process of filing Title IX complaints.
This upswing in survivors going public happened almost by accident. In October of 2012, Angie Epifano, a former student at Amherst, published a lengthy narrative in The Amherst Student that detailed her rape on campus and the subsequent emotional and academic fallout. The article went viral, generating over 750,000 page views and hundreds of comments. Clark and Pino, who were working on their Title IX complaint at the time, read Epifano’s article, dissected the reasons why it had had such a viral impact, and used those notes as the basis for a media campaign they planned to launch with their complaint. “If you look at what makes the Department of Education and Universities change,” Clark explained, “it’s not the law, because they can just ignore that. It’s public scrutiny. Everything we did was very intentional with an eye to the press.”
The vast majority of the more than three dozen Title IX complaints filed in the last year come from somewhere within the network. The tone of these stories is closely edited by Clark and Pino, who consult with new complainants and publish guidelines on how their stories should be presented to the media. “We want to control the entire narrative,” Clark said. That narrative follows a simple, yet compelling structure: A student is sexually assaulted. When she gathers up the courage to report the crime to her administration, she is met with indifference or outright resistance. A shockingly callous quote from law enforcement or a campus administrator is almost always included. Clark wrote that an administrator at UNC told her that “rape was like a football game,” and that she should think of herself as a quarterback who contemplates how she would have played things differently. When Pino tried to drop a class in the wake of being raped, she says her academic adviser told her that she was being “lazy.” Ariella Mostov, a former student at USC, claims that police told her that her rape did not “count” because her assailant had not achieved orgasm.
Every activist needs a megaphone, and if you’ve read a story about a Title IX complaint in the last two years, chances are it came from Tyler Kingkade of The Huffington Post. Kingkade’s style, which might rankle some within the older journalistic rank-and-file, has been to go straight for what he calls the “WTF moment,” in which a school’s alleged response to a survivor’s report goes far beyond the pale. A mere ten-day sample of some of his work includes headlines like “University of Akron Police Suggested Sexual Assault Victim Was a Liar, Complaint Says,” “Hanover College Told Rape Victim That Attempting To Have Her Alleged Rapist Punished Is Harassment,” and “Amherst College Sexual Assault Policies Treat Alleged Rapists Better Than Laptop Thieves.” Although his stories go through traditional fact-checking and through three editors, he admits to certain leanings in his reporting. “I approach this knowing that very few women file false rape reports and that none really have anything to gain from talking to me,” he explained. The veracity of these “WTF moments” is hard to confirm, but they make for good headlines, attract hundreds of comments, and have sparked a he-said/she-said battle between universities and survivors.
Nearly every administrator I spoke to over the course of my reporting said that they were bowled over by the quickness and the efficacy with which the Title IX activists turned their sexual assault policies into national stories. But they also expressed reservations about the fairness of the movement. An anonymous report on The Huffington Post can lead to the outing of both the victim and the alleged assailant. Due process is subsumed by the declaration that women almost never lie when they come forward with rape allegations. As Clark told me countless times during nearly a year of correspondence, there’s nothing schools hate more than bad press. And while few campus administrators doubt that the sexual culture on college campus warrants serious conversation, many have questioned the feet-to-the-fire tactics of the Title IX activists.
Pamela Thomason is the Sexual Harassment and Title IX Officer at UCLA, where she has worked since 2000. Thomason, like Paulette Granberry-Russell at Michigan State, took her post as the Title IX Officer after a lengthy career in equal opportunity law. Thomason argues that the failures of a school’s process usually do not come from indifferent administrators, but rather from any one of a nearly infinite number of seemingly small, yet potentially catastrophic decisions made by individuals on all sides.
As an example of just one place where a claim can be derailed, Thomason brought up the confusion a survivor might feel in the direct aftermath of her attack. “If you’ve been assaulted,” Thomason explained, “you can make a report to your university or to your local police department. With so many different procedures that may apply, it can be very confusing. There’s a lot of uncertainty about what’s the right thing to do and a lot of times the person who has to make that decision is intoxicated at 3 AM and has been injured.” When the same uncertainty gets strung out over a process that involves a claimant, a respondent, witnesses, campus police, and administrators, the number of places where something could go wrong expands exponentially.
To help clarify what a survivor should do after an attack, UCLA has invested considerable time and effort educating students during orientation and providing easily searchable online resources for students who have been assaulted. But even something as simple as that comes with its own problems. Thomason’s office, for example, has employed search engine optimization tactics and Adwords to make those resources easy to find through generic searches like “UCLA rape,” but their links have been buried by recent news stories about sexual assaults at the university.
Thomason supports the activist efforts of groups like the IX Network because they encourage survivors to come forward, but she acknowledged that the aggressive media attention to allegedly negligent, or, in some cases, allegedly monstrous administrators has affected the way she and her colleagues approach an already difficult job. She fears that reactionary overhauls of experienced staff and administrators could lead to an even worse system. Administrators “have to be fair to everyone involved, we have to be impartial,” Thomason explained, “and that honestly feels a little bit risky right now.”
If Thomason wanted to find a school where that risk had come due, she only needed to drive over the Hollywood Hills to Occidental College, a school of just over two thousand students in Northeast Los Angeles. The Occidental case put on display the full range of tactics employed by Clark, Pino, and their allies, who have gone on to form their own organization called “End Rape on Campus” (EROC). After the publication of the Dear Colleague letter, Occidental professors Caroline Heldman and Danielle Dirks worked with an organization called the Occidental Sexual Assault Coaltion (OSAC) to put together a list of twelve demands aimed at reforming the school’s sexual assault policies. When local television and newspaper reports began to circulate in late February 2013 about the school’s mishandling of an alleged sexual assault at an off-campus fraternity house, Occidental’s president, Jonathan Veitch, penned an open letter to the campus community asking for more time for the investigative and disciplinary processes to run their course. Veitch also called out “a number of well-intentioned people,” who, “actively sought to embarrass the college on the evening news.” The next day OSAC wrote an open letter to Veitch in which they informed the administration of their plan to file a federal complaint with the OCR along with a Clery Act complaint. “President Veitch left us no other choice,” Heldman told me. Clark reached out to OSAC and offered her support.
Occidental has since become the target of lawsuits and federal complaints. It has also become a media circus, with journalists covering the firing of Occidental administrators, allegations of breaking-and-entering and computer surveillance, the seizure of faculty and staff laptops, and the defrocking of a decorated Los Angeles Times reporter who may have engaged in an extra-marital affair with an OSAC source. Both sides have stopped short of directly accusing one another, at least in the press, of using some of these unbelievable tactics, but what started off as a negotiation between the administration of the school and activists has turned into an ongoing scandal. “My preference would have been that we have this discussion internally so that we could have an honest discussion,” Veitch told me. “It was never really a conversation. It went from demands to the news.” He continued: “I’m distressed about — and one sees it across the political spectrum, on the left and on the right — the way in which complex problems get reduced to sound bites, and where positions with which we disagree get mischaracterized, and where personal attacks become a substitute for a debate about the substance.”
On January 22nd of this year, President Obama, who spent the first two years of his college career at Occidental, announced the new task force to focus on the epidemic of sexual assaults on college campuses. At a press conference in front of his cabinet and the Council on Women and Girls, Obama called the sexual assault statistics “unacceptable” and said, “we need to keep saying to anyone out there who has ever been assaulted: You are not alone. We have your back. I’ve got your back.”
The government’s campaign went well beyond the executive branch. In early March, the Campus SaVE (Sexual Violence Elimination) Act went into effect, which, at least on paper, gives survivors many of the rights that Maya was denied — the ability to change academic, living, or work situations to avoid a hostile environment, a clear path to a contact or restraining order, and the right to a prompt investigation. Then, on April 28, came the Task Force’s report, “Not Alone.”
All this sounds like hard-earned progress to the growing number of activists, survivors, and faculty who make up the IX Network. In late May, the Department of Education released the names of fifty five schools who were under investigation; many of those investigations, including those of Arizona State, Occidental, UC Berkeley, the University of Southern California, and Amherst, had come directly out of the work of the Title IX activists. Michigan State also made the list, in response to a Title IX complaint Maya filed in October of last year. And in late July, the Senate announced bipartisan legislation that would enforce many of the proposed measures found in “Not Alone,” calling for increased fines for schools that violate Title IX or Clery, a mandated survey, and, perhaps most importantly, a confidential advisor who would be available to any student who wanted to report a sexual assault.
But while the support from both Obama and the Senate is cause for hope, there is a deserved cynicism about the actual content of “Not Alone,” which, despite some stronger language and the mandate of “campus climate surveys” (what will be asked in the surveys remains unclear), doesn’t stray too far from what was already outlined in the “Dear Colleague” letter. Many of the talking points in “Not Alone” cite the need for more research and time, and, in most instances, have been written in the same sort of vague language that doomed similar efforts in the past. In a section titled “A Comprehensive Sexual Misconduct Policy” for example, the task force writes: “Although every school will need to tailor a policy to its own needs and circumstances, all schools should be sure to bring the key stakeholders — including students — to the table.” Such ambiguous language appears again and again in sections like “Preventing Sexual Assault — and Engaging Men,” in which the task force writes: “In addition to identifying a number of promising prevention strategies that schools can undertake now, we are also researching new ideas and solutions. But one thing we know for sure: we need to engage with men as allies in this cause.”
The Senate bill, if passed, would add some measure of enforcement, but the fact that it took two strongly worded statements from the Obama Administration, two years of terrible press, and a national movement of activists to even get the Senate to consider upholding the “Dear Colleague” letter speaks to the intractable nature of the sexual assault problem on college campuses.“We’re obviously really thrilled that President Obama has committed to ending campus sexual violence,” Alexandra Brodsky, a Yale alumna who joined fifteen classmates in a 2011 Title IX complaint against the university, told me. “With that being said, we know from dealing with our schools that it’s very easy for administrations to perform concern — set up committees, put together meetings — without actually changing their approach to sexual violence.”
This is the conundrum: When it comes to sexual assault, everyone from Granberry-Russell to Pino and Clark to Vietch to the “Not Alone” task force agrees on the need for a personal approach and the inappropriateness of any prescriptive, overarching system. A heavy-handed federal system would only increase the likelihood of catastrophic outcomes. “My greatest fear,” Brodsky said, “is that in an attempt to show they are taking these issues seriously, the government will end up criminalizing every option. The only people worse than schools at handling sexual violence cases are the police.”
But the middle ground, where fairness is bestowed upon both the victim and the accused, is always going to be open to wide interpretation by the individuals charged with adjudication. What might be appropriate action to Heldman might seem like undemocratic bullying to Veitch, and what sounds like a nuanced conversation to Veitch might sound like victim-blaming to the OSAC. Surveys and training will help, but they do not address some underlying questions: How do you implement nuance while fundamentally changing the culture of thousands of schools that each have their own extant policies and philosophies? What would even well-intentioned top-down change look like in practice? Would it look like what happened to Maya at Michigan State?
In reporting this piece, I spoke to a wide range of survivors, administrators, and students at schools across the country, all of whom told me of a campus culture in which lawsuit risk mitigation, bad oversight, admissions and endowment competition, and the general timbre of our national conversation about sex on campuses leave survivors with nowhere to turn but the institution that has been entrusted with their care — with disastrous consequences. Michigan State was chosen out of a lengthy list of schools not because Maya’s case was extraordinary, but rather because it best represented the pattern across the country: Michigan State is the median.
At the start of the 2013-2014 school year, Maya found out that she and Robert had classes in the same hallway, forcing her to see him on numerous occasions over the first three weeks of the semester. In the state of Michigan, a Personal Protection Order can prohibit the assailant from “interfering with you at your job or school, or acting in a way that harms your job or school relationships or environment.” But I3 determined that because Robert had not been enrolled in the same class, he was not in violation and would be able to continue his studies. When Maya took her grievances to a campus support group, an administrator told her that she might be better off transferring to another school.
As of this printing, Maya still suffers from PTSD symptoms whenever she sees Robert, which will continue to happen as long as the two take classes in the same building. Robert has tried to contact Maya through a mutual acquaintance and has approached her in the hallway.
“It’s always in the back of your mind,” Maya told me in a recent phone call. “All I can think about in class is that when its finished, I’m going to walk straight out the room and not look around because what happens if I have to see him again? I just don’t know what I’m going to do if something happens. I already know that the university doesn’t have any intent to help me in this situation. You’re there fighting by yourself.”