By **Sarah Seltzer**
By arrangement with Alternet.Org.
Bad behavior by men on campus, date rape not taken seriously, backlash against victims who speak out: none of the elements of the Title IX case against Yale are new. What is refreshing, however, is that the issue may actually be taken seriously by none less than the federal government.
Several of the incidents leading to the investigation against Yale University have become notorious: frat members chanting “no means yes! yes means anal!” and worse outside the Yale Women’s Center. Members of yet another frat standing outside the same center with signs that read “we love Yale sluts.” Emails that ranked incoming freshman women with identifying information (including their residences on campus), based on “how many beers it would take to have sex with them.” And then there was the repeated theft of students’ “Take Back the Night” art projects, decorated t-shirts detailing personal stories of sexual assault.
Figures from a 2007 Justice Department study indicate that 1 in 5 women will be raped in college, many of whom will never report the crime—1 in 15 of their male peers will also be raped.
It’s a horrifying pastiche—no less so because these students are allegedly the cream of the crop, perhaps future presidents among them. But the most worrisome stories leading to Title IX investigations and similar controversies on other campuses (and the reason these incidents are more serious in context) are the tales we haven’t heard, the stories of the unnamed victims of campus sexual assaults who felt that the very university structures ostensibly designed to help them in their moment of need did the exact opposite—instead valuing the school’s reputation and the desire to avoid conflict. And beyond these stories are dozens of others, students who were assaulted and didn’t even bother reporting the crime because of the (often correct) perception that it wouldn’t do them any good.
It’s the combination of incidents, public and private alike, that led the 16 complainants who filed suit to label Yale a “hostile environment,” one in violation of Title IX’s provisions ensuring a level educational playing field for women. As with all such accusers, these students faced backlash on campus, claims that they were going too far and polarizing their community. But while their peers may doubt them, the government is paying attention.
In timing that may or may not be coincidental to the public acknowledgement of the Yale investigation, the Office of Civil Rights in combination with the Department of Education and the Obama administration has just launched a major new push to get universities to comply with federal guidelines for handling sexual assault—beginning with a kickoff speech from Vice-President Joe Biden, who used the phrase “rape is rape” to seemingly signal displeasure with the wishy-washy way some schools handle the issue. The OCR released a anadvisory reminding schools in receipt of federal funding that tolerating sexual harassment is a violation of Title IX—the law’s equal-opportunity guarantee for education.
Obviously, universities have unique situations. They’re not empowered in the same way law enforcement is and they have their own obligations to fact-finding, to students’ privacy and freedom of expression and to maintaining harmony in the community—and some of these systems for internal investigations may well have been intended to encourage victims to come forward. But regardless of intentions, it’s not working. As the Center for Public Integrity found last year in a must-read report, many victims of campus rapes actually feel it’s useless to come forward. And unfortunately, that feeling of futility is engendered all too often by their school’s policies.
A Widespread Problem
The incidents on Yale’s storied gothic campus are getting the most press—probably a combination of the public nature of the incidents and the reputation of the school. But the problems underlying those boorish acts of intimidation aren’t unique to Yale. In fact, the Yale investigation is one of several Title IX investigations pending by OCR, including one at Harvard Law School, the president’s alma mater. Figures from a 2007 Justice Department study indicate that 1 in 5 women will be raped in college, many of whom will never report the crime—1 in 15 of their male peers will also be raped. As we’ve explored at AlterNet, rape and the exploding problem of depression on campus are intimately linked. And the cultural and institutional plagues of shame, turning a blind eye, confusion and secrecy around rape, it should also be noted, can lead to the proportionally smaller, but nonetheless real problem of false rape accusations as well.
As to why it’s important to have that standard, Murphy says universities never put that kind of massive burden of proof on victims of racial harassment, or harassment aimed at GBLT or disabled students.
In an interview with AlterNet, Attorney Wendy Murphy, who has pioneered the use of Title IX to get schools to address sexual assault procedures (and who filed the Harvard suit), explained why flaws in university policies erect barriers to equality.
One widespread issue, addressed in the new OCR Advisory, is schools’ demanding undue evidence to adjudicate sexual assault cases, asking that victims adhere to a “clear and convincing evidence” standard (which Murphy estimates as 90-percent proof) rather than the “preponderance of evidence” standard (51 percent). Yale’s language, says Murphy, used a confusing hybrid of the two, “clear preponderance.” Crucially, OCR’s new advisory specifically demands the preponderance language, telling schools that have used the more exclusionary standards that they’ve been in violation of students’ rights.
As to why it’s important to have that standard, Murphy says universities never put that kind of massive burden of proof on victims of racial harassment, or harassment aimed at GBLT or disabled students—and that sexual harassment and rape should not have a “special set of rules” but be treated as targeted violence. It’s also simply a fact that in situations like date rape, it’s almost impossible to reach that higher standard of proof. While schools should be invested in finding out the truth of all incidents, they should also encourage victims to come forward, even if there’s no “corroborating” evidence.
Meanwhile, a predictable backlash flourishes on Yale’s campus, with some students complaining about the radical feminists who have hijacked their elite institution’s good name—because they’ve personally never felt any hostility.
A second problem Murphy identifies is universities’ “running out the clock” by waiting to rule on sexual assault and harassment claims until the completion of a police investigation (which often results in no charges being filed). At this point one or both students may be close to graduation and the university absolved of its legal responsibility. And the student who has suffered during that period has lost “education, emotional comfort, equal treatment…you can never give that back,” she says. “It does irremediable harm to run out the clock.”
These types of de facto or official policies are among many that make it hard for young people to deal with the sexual environment on campus. The Center for Public Integrity released a damning nationwide report last year that found fault (and law-skirting) on many campuses, in nearly every aspect of rape prevention and assault programs.
And just last month, Dickinson students participated in a three-day sit-indemanding specific changes to their school’s sexual assault policy; they won a sweeping overhaul and many of the protesters are sitting on the committee charged with implementing changes.
A Predictable Backlash
Meanwhile, a predictable backlash flourishes on Yale’s campus, with some students complaining about the radical feminists who have hijacked their elite institution’s good name—because they’ve personally never felt any hostility. The complainants who have gone public will continue to see their names dragged through the mud in the comments sections of student papers and many bystanders will ask, “Why, literally, make a ’federal case’? Why not just more education and resources to change this campus environment?”
Claire Gordon, a former Yale student who worked at the Women’s Center during one of the harassment incidents, has a rundown of the toxic culture at Yale, and she explains why a lawsuit may have been imperative and resources weren’t enough:
“This task force comes in a long line of committees and councils at Yale responsible for investigating, examining, reviewing, and recommending on the subject of sexual misconduct. It’s a headache just trying to trace them all…Without actually punishing the harassers, without calling it sexual harassment, without addressing the culture that has made so many men “lapse in judgment” so many times over so many years, the school has allowed this culture to persist.”
A place like the Yale Women’s Center is already there to provide the kind of education and safe environment that critics of the OCR investigation posit as an alternative—but when women seeking that “safe space” are repeatedly accosted by groups of men chanting pro-rape obscenities, clearly, the message is not getting through. Clearly, education is not enough.
Sometimes, it takes the full force of the law to make a big university pay attention.
A Last Resort
Backlash aside, Yale is already making promises to change its disciplinary system for sexual assault cases. Why? The fact that it’s under investigation will most likely push the school to bring its policies into compliance. As the AP reports: “The U.S. Department of Education’s Office for Civil Rights confirmed Friday that it has begun investigating the school. The office gets about 7,000 complaints per year and investigates about one-third of them.” In essence, the OCR investigation itself is the punishment that will force Yale’s hand. And for the students who filed the complaint, it was a last resort, a move only arrived at after what they say were futile efforts to use internal university channels.
Not every victim will want the same procedure, not every situation will merit a cookie-cutter response.
Title IX is the law that guarantees equal access to educational opportunities, regardless of gender. Traditionally, it’s thought of as a sports-equality statute but it applies to sexual harassment as well—and this month the Obama administration has made it abundantly clear that it’s taking this aspect of its application seriously. Another of the OCR’s new recommendations is that schools inform students in advance of their rights under Title IX, so that if they do face an unhelpful or unequal disciplinary system, they will be aware that those rights are being violated. This recommendation is also a great way to challenge “rape culture” on campus—to let students of all gender orientations know that the law—and justice—is on their side from the very beginning.
The fact that so many investigations are or have been pending at the OCR, and its new findings, are evidence of a small but important culture shift emanating from DC. And the fact that the media, from Good Morning America to the New York Times have been reporting the Yale story in a manner somewhat more sympathetic to affected women on campus (even using the word “misogyny!”) is heartening too.
Challenging rape culture, and university guidelines combatting it, can’t be a simple process and each campus could probably use dozens of experts at every level from prevention to discipline to counseling. Not every victim will want the same procedure, not every situation will merit a cookie-cutter response. But schools’ taking the issue seriously and signaling that’s it’s no joke will help all students, male, female and LGBT, navigate the deeply fraught environment of sexual culture on campus.
While we have a long way to go on this issue, and there’s no guarantee colleges and universities will comply with the new guidelines, it’s important to note that not even Yale and Harvard are being allowed to buck the rules. That feels like some kind of victory.
Copyright 2011 Sarah Seltzer
By arrangement with Alternet.Org.
Sarah Seltzer is an associate editor at AlterNet, a staff writer at RH Reality Check and a freelance writer based in New York City.