This spring, the U.S. Department of Education’s Office of Civil Rights (OCR) released a 52-point guide clarifying that Title IX of the Education Amendments of 1972, which shields people from sex-based discrimination at federally funded institutions, obligates schools to protect students who report sexual violence. The move was exemplary of the pressure the Obama administration—along with a growing grassroots movement—is putting on college leaders to implement policies creating a safer environment for students.
Diane Rosenfeld, lecturer on law and director of the Gender Violence Program at Harvard Law School, first began focusing on Title IX and its applications when a group of Harvard students approached her about sexual violence on campus in 2001. Since then, Rosenfeld has worked to eradicate sexual assault in schools by acting as an advisor for the OCR. In addition, she travels to colleges around the country training administrators and faculty on Title IX compliance, assisting students with representation at school adjudications, and speaking about steps that communities as a whole can take against rape culture. In 2011, Rosenfeld represented 16 Yale University students and alumni who filed a Title IX complaint with the OCR. Before teaching at Harvard, Rosenfeld served as senior counsel to the Department of Justice’s Violence Against Women Office.
After presenting at a college sexual assault briefing hosted by the nonprofit Futures Without Violence, Rosenfeld spoke with Rewire in San Francisco about the importance of progressive university leadership and the changes students are making to combat violence at their own schools.
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Rewire: In the 2001 case at Harvard, and in the cases since then, were you re-interpreting Title IX in a way that had not been done before?
Diane Rosenfeld: To some extent, yes. Law and legal precedents were already in place, but people weren’t applying the law on a large scale to campus sexual assault cases. I have concentrated a good deal of my work over the past decade to developing the application of Title IX to campus sexual assault.
Rewire: What’s happening now with Title IX cases?
DR: What’s happening now is that students have become very activated after knowing what their rights are, and they have connected through social media in unprecedented ways. These are really effective mechanisms, because we all know that numbers matter, and that collaboration matters. The efforts by school administrators to isolate and silence students on their own campuses have not been successful. Student survivors are, as the White House Task Force’s report recently found, not alone in their experiences or their fight. We’re seeing an uprising.
Last year, activists Alexandra Brodsky and Dana Bolger, along with a number of other students, started the survivor-run education and resource website “Know Your IX“; that’s really had a huge impact on college campuses. An offshoot of that was ED Act Now, through which students got hundreds of thousands of signatures on a petition to pressure the Department of Education to increase its enforcement efforts. That’s been a huge impetus for the Department of Education to enforce Title IX.
Everybody has to act. Everybody has something to do on this issue. The government has a role, but not the only role. President Obama’s administration has played an amazing leadership role on this so far by listening to all the different stakeholders and figuring out how it can use its bully pulpit to move this issue forward. The Department of Education has, in fact, increased the number of school investigations dramatically. And students feel empowered to initiate these conversations on their own campuses now. We’re at this moment that we absolutely have to seize. Because this is a solvable problem.
Rewire: How long do individual Title IX cases take?
DR: It depends. Not all cases are lawsuits. Somebody might just need help getting accommodations at her institution. There are several different ways to claim your legal rights to an education free from a hostile environment. An OCR complaint is one way, but there are other ways. The most important thing is helping students stay in school.
Rewire: It seems like college administrators are often very unresponsive to students when they speak up by themselves. Does it make a big difference to have you or other legal advisors helping?
DR: I represent the threat of a lawsuit. I think that, unfortunately, I command a lot of attention because of that. And schools do pay attention, especially now, because they’re quite concerned with potential liability—or bad press, even if they’re not sued.
When I’m talking to schools, I compare their role as administrators to that of surgeons in medical malpractice suits. In the first scenario, you leave a sponge in a patient’s stomach, and that patient calls you and says, “I think that you left a sponge in my stomach,” and you don’t return her calls, or his calls. In the second scenario, the patient calls you and says, “I think that you left a sponge in my stomach,” and you say, “Oh my god! I’m so sorry. Please come in right away and let’s see what’s going on and how I can help.” You’re much less likely to get sued in the second case. If you respond compassionately and just listen to your students, see what they need, and try to help them stay in school, you’re going to do a lot better.
Title IX isn’t a matter of just checking boxes. And it shouldn’t be taught to educators that way. Schools need to develop and implement compassionate, trauma-informed responses to survivors. They also need to impose meaningful consequences on people who are found responsible for sexual assault.
Rewire: Is there a generic consequence that you would want every school to enact, or does it really depend on each school and each case?
DR: A college president who I’m working with said to me the other day, “Why would I ever want to let a perpetrator back on campus if he’s raped someone?” I said, “That’s a great question. Why would you?”
But I’m reticent to recommend one blanket consequence and one blanket rule. I think there’s more that we have to learn about rehabilitation, education, and changing cultural awareness on these issues.
Rewire: What are the common responses you get from administrators, both when you’re involved, and when students are just involved by themselves?
DR: When students are involved, they often get terrible responses from administrators.
Rewire: Just basically like, “That didn’t happen”? Or “We can’t prove that it happened”?
DR: They get fake compassion, which is the basis of what people experience as “institutional betrayal,” a great term that was just developed by Jennifer Freyd. What administrators do is say, “We’re so sorry this happened. Maybe you should take a semester off.” That’s a way of not dealing with it. Or they say, “You can go see this counselor.”
They discourage survivors from coming forward by saying, “You can come forward. But it’s really difficult and re-traumatizing,” instead of saying, “You can come forward. Here are the resources that will help you do that. You will have an advocate with you in the room. It’s really important to our campus that we rid ourselves of people who don’t abide by the rules of our community.” They offer what looks like support, but what they say is not really in the best interest of the survivor.
Rewire: And then when you’re involved, or when other legal advisors are involved, what are some of the common responses?
DR: We see much better responses. “OK, let’s have a hearing. And the investigators are going to do this. We’ll work with you on that.” You just get a much better reaction.
Rewire: Is there anything that’s been particularly surprising to you in doing this work?
DR: The commonality. The day that the Harvard Crimson published “Dear Harvard: You Win,” in which a student details the ways in which Harvard ignored her for nine months after she was sexually assaulted by someone in her dorm, a survivor sent me a note that said, “I could have written that myself.” The commonality of experience and trauma is astounding to me. Astounding. I work with Angie Epifano, the author of the viral essay “An Account of Sexual Assault at Amherst College, and she has received hundreds of emails from others who went through similar experiences at their schools.
The type of trauma suffered by students who are raped, and then disregarded in some way by their schools, is alarmingly common and heartbreaking.
Rewire: Are there certain places that are just the worst? Or are they pretty equivalent?
DR: I don’t know if it’s helpful to call them out. I think that the better message is: “This is the time to be working on this. Not just because you could face liability and/or bad press, but because you have a chance now to create a healthier and much safer campus environment.”
And I don’t think they’re equivalent at all, which is also why I wouldn’t recommend a one-size-fits-all policy. I think it depends an enormous amount on presidential leadership. Colleges where presidents give the message that they care—that they listen to the students and that they have an open door for students—and where students have a direct voice in the policies of their school and of their community, you will have a much healthier campus overall.
Rewire: And are there certain schools that come to mind as the best?
DR: I’m sure there are others, but Williams comes to mind. The president does everything that I would want him to do. Williams has very active student groups who are supported by the administration—that makes a really big difference. And nevertheless, the college is constantly improving its policy.
Rewire: What are some ways that individuals can reduce sexual violence on their campuses?
DR: I can give you a good example. The Green Dot is a fantastic bystander intervention organization run by veteran violence prevention activist Dr. Dorothy Edwards. Edwards acts on the theory that it’s more important to be effective than it is to be right. She meets people where they are on the issue, and with each person she asks, “Where’s your point? Where’s your ‘Green Dot,’ or the point in a potential assault situation where you would get involved?”
She told me this story about one guy who didn’t seem like he was a very willing intervener. This guy said, “I think if a woman drinks, it’s her fault if she gets raped.” And Edwards said, “OK, so if you saw a woman who was almost passed out, and one of your fraternity brothers was dragging her up to his room, that’s when you would intervene?” He said, “Yeah, I guess that’s when I would intervene.”
So three weeks later, he was on a call with her, and he said, “You wouldn’t believe this, but I saw exactly that scenario. One of my fraternity brothers dragged this woman up to his room. And I didn’t know what to do. So after a few minutes I yelled up to him and said, ‘Mike! They’re towing your car!’” Mike ran downstairs, and the intervener got the woman and got her back to her dorm room.
That’s just one act of intervention. There are people in the room who see their brothers doing this. There are women in the room who see this happening and think, “Oh well, she’s a skank.” Or, “She’s just really drunk. I don’t know if I’m going to do anything.”
You have to do something. There are so many ways. Go up to her and say, “Hey, can you go to the bathroom with me?” or “Can I talk to you for a second?”
Rewire: What are the biggest obstacles you’ve found to colleges having effective sexual assault policies?
DR: One obstacle is when people won’t admit it happens on their campus. It’s what I call “exceptionalism.” Administrators or officials will say, “Yes, that happens on campuses, but not ours, because we would know.” Or, “Of course, we wouldn’t admit anybody to our school who’s a rapist.”
But it’s moving from not wanting to recognize it, to saying, “OK, it’s happening everywhere, and we have to do something about it.” I think it’s changing.
Rewire: That’s a hopeful note to end on.
DR: I’m very hopeful. I really, really am.
This interview has been edited for length and clarity.