The Fight to Refocus Title IX on Survivors

President Biden has promised that improving how schools implement Title IX will be a top priority of his administration. Last week’s confirmation of Miguel Cardona as U.S. secretary of education signals the beginning of that commitment, and on Monday Biden issued an executive order calling for a review of existing Title IX regulations and instructing the secretary of education to “consider suspending, revising, or rescinding” policies that are inconsistent with “an educational environment free from … sexual violence.”

Following four years of the Trump administration’s approach, which was more sympathetic to men’s rights activists than to victims, survivor advocates are eager for a change. However, they are not looking for the Biden-Harris administration to simply revert back to the way things were before. Instead, they hope to build on the protections that existed to create a more dynamic and inclusive version of Title IX policy.

Few political issues have been as contentious in the last decade as the debate around Title IX, the federal law that prohibits sex discrimination in schools, including sexual harassment or assault. Each presidential administration has discretion in determining how to enforce that law. Prior to the Obama administration, enforcement of Title IX with regard to campus sexual assault was weak, but through legal guidance (including a series of “Dear Colleague” letters to colleges and universities), the Obama-Biden administration vowed to withhold federal funding from any school that failed to adequately prevent and respond to sexual assault, including adjudicating survivors’ claims of violence and providing resources to victims whether or not they chose to formally report.

In 2020, the Trump administration reversed course and implemented new federal regulation to weaken Title IX protections for survivors (or complainants) and expand privileges for the accused (or respondents). Most controversially, the regulation limited the definition of sexual harassment and the kinds of cases schools would be responsible for addressing. The Trump regulations also created new barriers for survivors trying to report, such as mandated live hearings and cross examinations, that defy judicial precedent and are known to traumatize survivors who report and discourage many from coming forward at all.

Reversing Trump Era Harms

“Over the past four years, Title IX got turned on its head so that it actually discourages students from reporting sexual violence and protects assailants and harassers more than victims,” said Maha Ibrahim, attorney for Equal Rights Advocates, an organization focused on women’s rights in work and education.

In this landscape, survivor advocates argue that student survivors are facing new problems as their schools become another tool that assailants can use to abuse their victims.

One visible example of this phenomenon is the rise of the retaliatory complaint. Assailants facing a Title IX investigation will file counter-complaints — either within the Title IX system or through a civil defamation suit — to punish victims for coming forward, force their victims into prolonged hostile contact, and, in some cases, intimidate their victims into dropping out of participating in the original case. Know Your IX, a student-focused antiviolence organization, will release a report later this month that includes a survey of 107 survivors’ experiences with reporting sexual assault and harassment to their universities between 2002 and 2020. Sage Carson, manager of Know Your IX, noted that retaliatory complaints are an increasingly common theme. She said, “One in five survivors were threatened with a defamation suit by [an assailant’s] attorney. The same amount were warned of defamation suits by their schools. Ten percent were facing retaliatory complaints by their perpetrator.… One student faced ten complaints by her respondent. At what point will this be seen as harassment?”

Shiwali Patel, director of Justice for Student Survivors, part of the National Women’s Law Center, emphasized that these tactics have been effective. “Schools have a fear of litigation because of how litigious [respondents] have been, so they are unwilling to dismiss cross-complaints when they should. It has the impact, of course, of what the respondents intended — the victims not continuing their cases.”

The impact on survivors is severe. Patel explained, “When we’re talking about sexual harassment, we’re talking about respondents — if they’re punished — but we don’t talk about survivors who are pushed out. Survivors might not feel safe on campus anymore or their grades have declined.”

The strain on survivors’ education can be long-lasting. Again referencing Know Your IX’s forthcoming report, Carson explained, “Nearly 40% of students faced some interruption in their education. Of those who didn’t, they said they couldn’t leave school because they couldn’t afford to start repaying their loans or couldn’t lose health care. [They] struggled and took longer to graduate and left with a mountain of debt because they didn’t get the support they needed. Students who did leave school couldn’t return because of their debt.” She added, “People only see Title IX as a discipline process, and that is not what Title IX is — it’s [about] access to education.”

Improving on Survivor Protections

Beyond mitigating the harms of the Trump administration, survivor advocates see an opening — and a necessity — to improve on Title IX protections for survivors. “College students today are existing in a really different campus and cultural environment than existed ten years ago,” said Tracey Vitchers, executive director of It’s On Us, the Obama-Biden sexual assault prevention initiative. “We have an opportunity to build on what has been done.”

Central to that project is understanding what has taken place since the Obama administration’s original 2011 “Dear Colleague” letter. While universities have undergone many changes in how they address sexual assault, some have hurt survivors more than they have helped them. Moving forward, advocates insist it will be important to understand how policy impacts students’ lives.

Carson emphasized the importance of detailed, student-focused data. “We need transparency in what the outcomes are for formal investigations and accessing accommodations. What did [survivors] get and how long did it take? Did they have to leave school for a time? How long did they leave school? What was the financial impact of leaving school? Transparency is essential for better outcomes.”

Kenyora Parham, executive director of End Rape on Campus, a survivor advocacy organization, said, “We should look to see if [sexual assault] numbers are going down. Are we actually doing the right thing to prevent [violence]?”

In the meantime, advocates support urgent action on the issues survivor-focused organizations have already identified. The National Women’s Law Center submitted a letter, signed by over 100 other organizations, to the Biden-Harris transition team with a list of recommendations, including:

• strengthening Title IX protections for K-12 students
• creating more resources for survivors of dating violence
• expanding access to comprehensive, LGBT-inclusive, and medically accurate sex education
• banning dress codes
• improving antidiscrimination trainings for school staff

In the case of K-12 schools, the protections recommended are not a return to the way things were done before the Trump administration, but an entirely new approach to Title IX. Ibrahim explained, “Even before the Trump era, most Title IX guidance and regulation was really crafted with only the university setting in mind, and K-12 institutions were directed, almost as an afterthought, to adhere to the same guidance and regulations. This approach does not take into account the developmental levels of students, the campus realities of a K-12 setting as opposed to a university, or important robust approaches to prevention and resolution that could focus on student growth and development, healing and community repair, rather than merely adversarial processes and punitive outcomes.” Advocates are optimistic that effectively intervening on discrimination and violence in K-12 schools would also serve as a form of prevention at the university level.

Importantly, advocates insist it is crucial to think more intersectionally about Title IX than before, including separating Title IX resources from policing. Parham said, “There are schools where victim advocates are located within campus safety, so you have to walk past campus safety to get to advocates. Not only is that intimidating, but it lessens the chance of students seeing advocates because they have to walk through this physical space composed of folks who have possibly done police brutality.” When advocates are tasked with providing supportive resources to survivors, such as academic accommodations or housing adjustments, an association with campus police can block students of color and LGBT students from getting help.

Patel recognized that the police themselves also perpetrate sexual harassment. “We recommend the removal of police from schools and putting funds into other types of resources. We know that police, at times, sexually harass students, especially Black girls. When they are involved in investigating sexual harassment complaints, [police] sometimes engage in problematic behaviors.”

Ultimately, survivor advocates insist that it is student survivors themselves who know best what they need and hope that their voices will be central in all policy developed. According to Ibrahim, “Survivors have been deliberately excluded from the conversation for four years. We’re hopeful the Biden administration will consistently invite survivors and their advocates back to the table.”

Vitchers agreed: “We need to make sure that students are at the table when Title IX changes are happening because, at the end of the day, these changes affect them most.”