In August 2020, the Department of Education released a new set of guidelines for how schools are required to regulate Title IX cases—and, unfortunately, they seem to be a step backward instead of a step forward. In this bonus episode, we explain how Title IX has changed and how student survivors will be affected by these controversial new guidelines.
Bonus Episode: What’s Changed With Title IX
Dr. Lorenz: There's nothing in these new guidelines that require schools to help students to feel safe on campus. And I think that that's really concerning. So I worry that if someone were to go through this, it would prevent their healing from beginning. It would just drag it on and potentially harm them more during the process.
-Intro Music-
Bekah: Hi, everyone. I’m your host, Bekah, and this is Indelible: a class, a podcast, and a conversation about sexual violence. This episode is going to be a little different from the rest of Season 1. For starters, I’m not the voice you’re used to hearing. You’re also not going to hear a survivor interview in this episode. We’ve already done an episode about Title IX—you should check out Episode 3 if you’d like to hear it—but, after we finished that episode, something big happened. The Department of Education and Betsy DeVos, who was serving as Secretary of Education at the time, released a new set of rules outlining what schools are required to do with Title IX. A lot of things changed, and some of these new regulations could have really bad consequences. So, we wanted to talk about it. If you Google “Title IX updates” and then try to read the first few things that pop up, it can get pretty confusing. If you’ve been sexually assaulted and you’re trying to decide whether or not to file a Title IX report, or if you’re trying to help a friend make that decision, it’s frustrating to not really understand what you’re getting into. Hopefully, this episode will help clear up some of that uncertainty. To help us figure out how Title IX has changed, we interviewed two sexual violence researchers: Dr. Katherine Lorenz and Dr. Becky Hayes. Let’s hear from them.
Dr. Lorenz: So my name is Dr. Katherine Lorenz. I'm an assistant professor in the criminology and justice studies department at California State University Northridge right outside of LA.
Bekah: I asked Dr. Lorenz in what ways she’s worked with sexual violence research, and it took her nearly three minutes to list all of her experience.
Dr. Lorenz: I teach our victimology courses…. I'm a sexual violence researcher focusing on support and help-seeking among survivors…. I was appointed to the sexual violence prevention committee on campus…. I'm a member of the American society of criminology division on women in crime…. I'm also a member of a newly formed group of academics, professionals, and students who are organizing around Title IX…
Bekah: In the interest of full disclosure, I'll add that Indelible's executive producer, Jill Christman, is also a member of this national advocacy group—the Alliance for Survivor Choice, or ASC.
Dr. Lorenz: And then outside of my professional connections to Title IX and sexual violence, I've personally been through the Title IX process as a student. So I kind of have an understanding of the issue from both sides.
Bekah: In other words, she knows what she’s talking about. And Dr. Lorenz’s colleague, Dr. Becky Hayes, has been working in this field for even longer.
Dr. Hayes: I am Dr. Rebecca Hayes, even though I go by Becky. I have been working at Central Michigan University for over a decade. How I work with Title IX is I'm a sexual violence scholar, and that started back in my graduate school days, actually, because I started looking at college sexual assault when I was a victim advocate for a rape crisis center.
Bekah: I was very glad these two researchers knew what they were talking about, because before I interviewed them, I really could not figure out what was going on with these new Title IX guidelines. I looked at the Department of Education website, I watched the 18-minute long video of Betsy Devos announcing these guidelines, I read news articles—but all of the information available was so obscured by fluffy marketing language that I struggled to understand how the updates were going to affect survivors. I ran into a lot of stuff that sounded like this quote from Betsy DeVos:
Betsy DeVos: Students, their safety, and their success are at the center of everything we do.
Bekah: Which sounds really good, right? And the list I found on the Department of Education website says the new guidelines are going to do things like “restore fairness,” and “provide a consistent, legally sound framework on which survivors can rely.” But, like...what actually changed? Before we dive into that question, let’s start with a quick review of what Title IX actually is.
(Excerpt from Episode 3: “Title IX”)
Annie: The actual text of Title IX reads: “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 or activity receiving Federal financial assistance.” Title IX is just one little sentence, but that sentence has had a spectacular impact. Students who have experienced sexual misconduct—anything from verbal harassment to physical assault—can report to their school’s Title IX office to begin an investigation. From there, the school has a few options. They can support the survivor as they heal by adjusting their class schedule or changing their housing arrangement to help them avoid their abuser. Depending on how the disciplinary hearing proceeds, the school can also punish the perpetrator accordingly, whether that means issuing a no-contact order or expelling them and banning them from campus. All of this is separate from the legal and police systems. Choosing to file a complaint with Title IX is different from pursuing criminal charges.
Bekah: As we learned in Episode 3, Title IX exists to help students, but it’s an imperfect system. Let’s return to the big question here: what’s changed about it since the new guidelines dropped? Here’s what Dr. Hayes had to say.
Dr. Hayes: They're all important changes. So I will try to keep this as short as possible. You know, Title IX in and of itself is a short statute. So these kinds of changes in guidelines tend to come down either from the Supreme Court or the Department of Ed. And in this case with Betsy DeVos, it was the Department of Ed. And she is receiving a lot of criticism from my field and myself included for these new changes, because a lot of the changes really make it easier for a university, for a school, to just wash their hands of sexual harassment and assault. For example, if it doesn’t happen on school property or a school-sponsored event, they’re no longer covered under Title IX. Any college sexual violence scholar expert knows that a lot of sexual assaults happen in off-campus housing and off campus, like the majority of them, you know, after parties.
Another scary, important tactic is that the definition of sexual harassment has been more narrowly defined. So the new, you know, “severe, pervasive, objectively offensive” is what the new guidelines are saying. So it has to be over and over again, it has to be severe. And who gets to define what's severe? Well, the people in power get to do that, right? Not the victim themselves, not the survivor…. It's these narrowly defined, yet vague language that allows a lot to wiggle its way into a way that is not actually protective of survivors. This along with raising the liability standard for sexual harassment shows that the new guidelines are much more protective of schools than they are actually of survivors.
Bekah: Despite all the fluffy, nice-sounding language that the Department of Education used, it turns out that, in truth, these new guidelines make Title IX a lot less survivor-friendly. Dr. Lorenz echoed that opinion.
Dr. Lorenz: A lot of the summary on the DOE website is saying that they have expanded it to provide more protections for survivors, but then when I actually dug into the policy, it is actually quite limiting in terms of what behaviors constitute as discriminatory.
Title IX, particularly with the inclusion of mandated reporting, it's become a way to either silence survivors or put survivors through a process that in my opinion actually reinforces or creates more barriers to accessing education activities than the original harm experienced. So, it was originally intended to make sure that everyone has access to these educational activities in and outside of the classroom and connection to their campus. But through this process, we've kind of made it harder for people to continue accessing those things. So again, we're seeing a huge disconnect between what it was intended to do, what it's kind of morphed into and what it actually does.
Bekah: The more Dr. Lorenz and Dr. Hayes talked, the worse these guidelines sounded.
Dr. Lorenz: Institutions must allow for a live cross examination by a representative of the parties’ choosing. So that can be a parent, a coach, a lawyer, an advocate, so they can appoint someone to cross examine each, similar to that of a criminal trial. And it also established a higher standard of evidence. So now survivors have to prove, have to present more evidence that what they are accusing the perpetrator of actually occurred. So again, we're seeing it shifting towards more of a criminal trial in terms of the requirements and how it takes place.
Dr. Hayes: I mean, the ability for the accused to cross-examine the person who is accusing them and using any kind of representative that they want, whether it's a fraternity brother, like that's an intimidation tactic. I get it. I'm a criminal justice scholar. I get why they would want to make that kind of change, but this is not a courtroom. This is not what this person is trying to do when they report it. This is an intimidation strategy. You know, the Title IX process is not meant to become a courtroom.
Bekah: That’s an important difference to talk about. A trial in a real court might end in the perpetrator facing prison time, probation, community service, or registration as a sex offender. Title IX, on the other hand, has much less power. The most severe punishment a perpetrator might face in a Title IX case is expulsion, and that’s not common. It’s more likely that perpetrators will face a no-contact order or maybe temporary suspension—but not prison time or a fine, ever. When a survivor goes to Title IX for help, they’re not hoping to get money or revenge or attention. All they’re trying to get from Title IX is equal access to education in a safe environment. That’s part of why these new guidelines are so frustrating. Title IX is supposed to be less intimidating and more accessible than criminal court. These new guidelines don’t seem to be concerned about that. To give just one example, there used to be a 60-day requirement for Title IX investigations to prevent schools from ignoring students or dragging out a case for too long. Now, there is no time limit at all.
Dr. Lorenz: They didn't provide an alternative, which is really potentially harmful because it means that these investigations can theoretically be drawn out for months or years, or even until the survivor is no longer a student. So theoretically they could take it under investigation and not do anything and then wait for the person to graduate and say, “You're no longer a student, so now we don't have to investigate this any longer.”
I think that a lot of these things are really important for survivors to know, just so they can understand what they're getting into, if they do go into this process. You know, this could last for years of your educational career, potentially, without consequence.
It also limited from whom complaints can be filed by stating that students can only file complaints by someone who is attending their university or college. Prior to that, it was really—universities wanted to know about anyone who was harmed in these types of ways, regardless of who was perpetrating the harm.
The new guidelines give schools more control over these processes in terms of what constitutes harm that they need to investigate. It gives them fewer obligations to actually protect survivors and student survivors and graduate workers who have been harmed. So I think it's to reduce liability.
Dr. Hayes: I think that because of the way that our system is structured, there is probably some happiness among, you know, administrators, because they don't have to worry as much about being sued. It's not going to be as easy to have lawsuits against universities under these new changes.
This is not something new and it's not only American, but what we do with it is that we protect property over people and it's all about money. And so there's a lot of protection of like, "we don't want to get sued, so how can we not get sued?" It's institutional betrayal. It's protecting the institution over the individuals within the institution…. And then the individual who has been harmed ends up being a second thought in these kinds of policies. Yeah, I think that that very much applies to the way that DeVos handled this.
Bekah: In recent years, there has been some controversy about wrongful accusations. Some students who were charged with sexual misconduct under Title IX argued that the accusations were false or that their punishment was too harsh, and schools started getting bad press and a lot of headaches over it. As we’ve seen happen so many times before, survivors and their trauma were put to the side in favor of keeping the status quo. Betsy DeVos and the DOE decided that keeping schools from being sued by the accused was more important than helping the abused.
Dr. Lorenz: A lot of these things were packaged as due process. So making sure that the scales are even for both the complainants and the accused, which, absolutely, we want to make sure that those two things are even in that everyone has fair access to whatever type of justice they're trying to pursue and that no one is wrongfully accused or wrongfully sanctioned if they're accused. It's really interesting because when we see these things in practice, most survivors feel like they never felt like anything was in favor of them. They always felt like they were judged and scrutinized from the beginning and that they had to face an uphill battle to prove that something happened to them. So it really makes it interesting that people felt that these changes were necessary to further tip the scales towards the people who are being accused. Because what we know based on the sexual violence and the criminal justice literature, is that, again, survivors never feel favored. They feel discriminated against through the process that they're going through. We rarely hold perpetrators accountable through our criminal legal system. So the fact that they felt the urgency to make all of these changes, so that survivors aren't advantaged is really concerning and unnecessary because there's nothing to suggest that they were advantaged in the first place. Or that our system was disadvantaging people who are accused.
Bekah: Basically, these updated guidelines are a step backward instead of a step forward. That’s the opinion our guest experts expressed, and that’s my personal opinion from all the research I’ve done for this episode and everything I know about campus sexual violence. But there is a little bit of good that came out of all this. I asked Dr. Lorenz and Dr. Hayes if they noticed any positive changes in the new guidelines, and this is what they said.
Dr. Lorenz: I do. I do. One of the guidelines that I didn't mention yet is that it removed the mandatory reporting obligation. So up until these new guidelines, most university employees were a mandated reporter. Now under these new guidelines, mandated reporters are only Title IX officials and school officials with the authority to implement corrective measures. So higher up administrators, people who are working in the student conduct office, disciplinary positions. So it really limited who is obligated to make reports once they receive a disclosure and the new guidelines give power back to schools to determine who mandated reporters will be…. Research shows that that mandated reporting is harmful in a lot of ways. So I think that was the only good thing to come from the new guidelines. We know that mandatory reporting is counterproductive, particularly in higher education, because it reduces reporting, it has the side effect of harming survivors by silencing them or forcing them into a process that's potentially harmful. When we have mandatory reporting, survivors are—they lose the option to talk about what they experienced with someone they trust and to control their narrative. So once they tell a mandated reporter, it's kind of taken out of their hands. And it also creates issues in the classroom where students may want to talk about their experiences of harm as part of their learning process, but they're unable to do so. I see this all the time in my victimology and my domestic violence courses. Students want to talk about these things, they want to write about these things, they want to apply them to what we're learning in the course. But they can't because of the mandated reporting obligations.
Bekah: When I asked Dr. Hayes the same question about positive change, their answer was similar.
Dr. Hayes: So what's interesting about the changes to mandatory reporting is it's actually kind of in line more with what victim advocates and scholars have suggested, but part of victim advocacy and rape culture work, it's like, hey, we need to empower survivors to make their own decisions. And so removing mandatory reporting if somebody chooses to talk to a school employee is not a totally terrible thing.
I would rather, if somebody comes forward to me and say, hey, this terrible thing happened to me, I'd be like, well, here are your options and I can walk you through this, but what do you want to do? And make sure that I'm not doing something that they're not ready for.
Bekah: As we’ve talked about before on this podcast, it used to be that almost every university employee was a mandatory reporter: administrators, professors, even RAs. And that made things hard because if you’d experienced a sexual assault and wanted to talk about it with an RA or professor you trusted, they had to report it to Title IX even if you really didn’t want that. Now, it’s possible that they won’t have to report you. However, it’s also still possible that they will. Universities have the choice to cut mandatory reporting to a much smaller number of employees, but they don’t have to, so it’s going to vary from school to school--and we should all make sure we know what guidelines our own schools have put in place.
Dr. Hayes: Everybody's implementing the changes, but since there is wiggle room with interpretation, I think some schools will try to keep their work as close to business as usual as they can while implementing the changes. And then other schools will take this as a way to get out of trouble.
So there's a lot of wiggle room there that universities can do as best the right thing as possible if they want to. They can take this legislation, the changes for the legislation… and interpret those in ways that are still somewhat helpful to survivors. It's really up to leaders to do that.
Dr. Lorenz: Students will have to refer to any training that they receive. They'll have to check their school's Title IX website or ask someone if they're a mandated reporter before they disclose. So it's, it kind of sucks because it puts a lot of the pressure on the students to determine who they can tell. And they have to do the research on their end to figure out who is a mandated reporter and who isn't.
Bekah: Dr. Hayes also suggests calling your school’s Title IX office and asking them directly, or having a friend call them for you. Asking about mandatory reporters will not automatically open a Title IX investigation.
We’re going to take a break from our expert interviews for a moment to talk to someone who has a much different perspective. We wanted to see what an average college student who doesn’t know much about Title IX would think of these new guidelines. With the current pandemic, I couldn’t go onto campus and interview random people walking down the street like in previous episodes, so I sat down with my roommate, Amber. She hasn’t listened to Indelible, and this is all she knows about Title IX:
Amber: From what I remember from the training that we had to do before we could even come to campus is, I think it's about protecting from sexual misconduct?
Bekah: I put together a list of some of the main changes and read through them one by one to see what Amber thought.
The first one was that institutions must presume the innocence of those accused of sexual misconduct.
Amber: I understand the concept behind it of trying to maintain that ideal of innocent until proven guilty. But I feel like based on the way that our government works, it's meant to be a loophole, not a protection of both parties.
Bekah: Next one. Schools must dismiss any complaints of sexual misconduct that occurred outside of campus-controlled buildings. So if someone is assaulted in a house near campus, even if the assault is perpetrated by a student, the university wouldn't be obligated to investigate that claim.
Amber: That's messed up. Like I know that's not the most elegant way to put that, but the responsibility of the school board is still to their students, regardless of whether they're on campus or not, at least that's how I see it. So the fact that they have the ability to just dismiss it outright, I mean, that could even lead to the person that filed the complaint may not even want to go to local police if their own school is not going to help them.
Bekah: Institutions are no longer required to address claims of sexual misconduct within 60 days of the complaint being filed, so now there is no time limit at all.
Amber: Well, that makes it almost useless….Saying that you don't have to address it within a certain time period—I mean, again, it feels like a loophole. They could, you could be like, oh, well, this person's going to graduate in two days, I guess maybe we could look into their complaint from when they were freshmen. It just seems much easier for perpetrators to get away with what they've done.
Bekah: For something to qualify as sexual harassment, it must be severe, pervasive, and objectively offensive. This is for harassment specifically, not assault, but for something to count as sexual harassment, it must be all three.
Amber: If it has to be all three for it to count, that's saying that it could be severe and pervasive and seriously harm a person, but if someone doesn't find it objectively offensive, again, it's another loophole.
Bekah: Students have the right to a live hearing with cross-examination, like a courtroom except instead of an actual judge, it's a university employee.
Amber: Even the thought of that might be enough for a person not to want to report sexual misconduct. But I can also see how if justice has done properly and it's not an intense interrogation of the victim, and instead it is putting that intensity on the perpetrator, I can see how it could be a good thing, but I still feel like I shouldn't have to grasp for straws to find a way to make it good. Yeah. I don't know how I feel about that.
Bekah: Sexual harassment that takes place online no longer falls under Title IX guidelines.
Amber: That's just stupid because if a person is saying the same thing in written word, and it's still completely connected to their identity, what is the difference between that and saying it straight to someone's face? It's still sexual harassment. There's, it's still, a person is still receiving something… something that they don't want. So I don't understand how that's any less harassment than if it was in person. That makes no sense to me at all.
Bekah: Amber and I ended up talking for quite a while about Title IX. At the end of our conversation, this is what she had to say.
Amber: That's infuriating. Like I know that I'm not physically on camera, but let me just state that I've been shaking my head this whole time, because there are not enough words with not enough power to explain how frustrating it is that universities are being held less accountable... just the fact that universities are being held less accountable than before for the safety of their students that they're supposed to be advocating for. Ridiculous.
Bekah: So, yeah. Thank you, Betsy DeVos [sarcastically]. I wish I had more good news for this episode, but even though I don’t, it’s still important for people to know about this stuff, and it’s important for students to understand what they’re getting into if they still decide to make a report.
Toward the end of our interviews, I asked Dr. Lorenz and Dr. Hayes if they’d still encourage students to use Title IX. I expected them to say no, they wouldn’t, or even that they would actively discourage students from going that route. But that’s not what they said.
Dr. Lorenz: If someone were to come to me, I would help them do whatever they felt was best. So if someone feels strongly that going through this process is what they want to do, I'll support them through that. And I will help them find an advocate to help them navigate the system. But if someone were asking my opinion, I wouldn't go through it.
Dr. Hayes: Before, I was a mandatory reporter and so I'd have to say, hey, I have to report this. But then I would also say just to remind you, you have agency and if they're trying to push you through a process, you don't have to do it. You don't have to do it. If at any point in time, this is uncomfortable to the point where you don't think you can do it, then don't do it. And I think that's what I would say. I would say if you think that you should, do it. I don't want to tell you you shouldn't because especially if it's a serial assaulter, I feel like people feel more compelled to report it because they want to help other people not have the same thing happen to others. But engaging in like, this could be retraumatizing, I'll be honest with you.
So you know, just trying to mentally prepare them for what's happening, but if they—I mean, empowering is: you want to do what you want to do. Here's as much information as I know about it. So I will encourage you to make your own decisions and I'm here to support you in any way I can.
Bekah: Which just goes to show that they really know what they’re talking about. As always, it’s up to survivors to make their own choices, and up to us to support them, listen to them, and give them control in whatever way possible. I think that’s a good note to end on. So now, as always, I’ll hand you over to our executive producer, Professor Jill Christman.
Jill: Thank you, Bekah, for all of your work in putting together this Title IX bonus episode. It’s so important that we all understand how our own schools are interpreting and implementing Title IX under the new guidelines. And thanks to all of you for sticking with us and listening.
As always, be sure to visit us at indelible podcast dot com to get a behind-the-sounds peek at our podcast and people, as well as resources for getting involved—or getting help. Healing takes time and is different for each of us. If you or someone you know has experienced sexual assault, help is available at rainn.org—that’s R.A.I.N.N.org—or at the National Sexual Violence Resource Center’s website: N.S.V.R.C.org. You can call 1.800.656.4673 for free, confidential support 24/7.
Thank you to our guest experts for this episode: Dr. Katherine Lorenz and Dr. Becky Hayes. Thanks as well to Amber for sharing her thoughts with us.
Special thanks to Bekah, our reporter, scriptwriter, and host for today’s episode—and to Lizzy for mixing our sound. Indelible is small, but we are mighty.
Indelible was born at the Virginia B. Ball Center for Creative Inquiry at Ball State University—and for giving us our start, we will always be grateful. Once again, be sure to visit us at indelible podcast dot com, follow us on Facebook, Twitter, and Instagram—share and like and all the things: we want to make this conversation big and bold.
Treat yourself with gentleness today.
I’m Jill Christman, this has been Indelible, and despite persistent evidence to the contrary, I remain optimistic. Together, let’s keep pushing back and fighting for our right to safety—on our campuses and in the wider world.