Last Monday, in a major first, the Department of Education found that Tufts' policies on sexual assault violate Title IX, the federal provision meant to ensure gender equality on on college campuses. Three days later, the Department released a list of 55 other colleges it is investigating for mishandling sexual assault on their campuses. Also last week, the White House Task Force to Protect Students From Sexual Assault released its first report, which made numerous recommendations to universities on how to better serve survivors and announced several changes in the Department of Education and Justice Department's enforcement policies.
The week was a culmination of years of campaigning by campus survivors' rights activists, who have have argued that many universities' processes for dealing with sexual assault leave assailants off the hook, and have used Title IX complaints to the Department both to pressure the universities and to persuade the federal government to intervene on behalf of survivors. A 2011 complaint by a 16 Yale students and alumni was particularly influential in bringing the issue to public attention.
Alexandra Brodsky, now a student at Yale Law School, was one of those sixteen complainants. With Amherst graduate Dana Bolger, she co-founded the group Know Your IX, which both aims to spread awareness of Title IX rights on campuses and, through its Ed Act Now campaign, to change federal policy on the issue. Last summer, the group delivered a petition calling for tougher enforcement of the act, bearing over 100,000 signatures, to the Department of Education. That resulted in meetings with top Department and White House officials, and arguably contributed to the White House's recent push to fight assault on campuses. Brodsky was one of the activists invited to the release of the White House Task Force report last week.
We spoke on the phone Monday afternoon. The following has been edited for space and clarity. For more background, be sure to read Libby Nelson's excellent explainer on the issue.
Dylan: How'd you get the idea to file a Title IX complaint? What was the thought process leading up to filing the complaint?
Alexandra: Two stories there. The first time that I ever heard of Title IX was in a class I took at the law school as an undergrad. I knew that Yale's policies were unethical and unhelpful but I hadn't realized that they were illegal. It was around that same time that this campus feminist magazine I was working for started talking about an idea that had been floated a couple of years earlier by some campus activists, to file a Title IX complaint. That original group had decided not to do it after the university promised they would make changes. And that hadn't really happened, so we decided to go through with it.
Dylan: What was the process of retaining counsel like? Did you have help?
Alexandra: We weren't represented by a lawyer, but we had the help of Harvard Law's gender violence clinic drafting the complaint. We were really grateful for that help, but you don't need a lawyer to use Title IX: we were filing an administrative complaint rather than a lawsuit.
Dylan: Did you consider filing a lawsuit?
Alexandra: When the previous group had considered taking action a couple of years before, I think they had been leaning toward a lawsuit. A complaint seemed like a better fit for our needs, in that we were making a claim about the general atmosphere at the school moreso than about particular incidents. Specific experiences were certainly part of this larger claim, but we were taking a big picture approach. It's also true that because of some incorrectly decided precedent, it's really hard to win a Title IX suit now.
There's also the tension of filing a federal complaint against your school. I learned about Title IX from the school I filed the Title IX complaint against. I think the complaint process is far too cooperative, and it should be more punitive, but a lawsuit is necessarily more adversarial.
Dylan: What do you mean when you say it's too cooperative? Are there some specific instances where a more punitive or formal approach would have been more productive?
Alexandra: I don't know if it needs to be more formal. This is jumping ahead a little bit, but after our complaint had been resolved, when more students started filing complaints and I was talking to other people who had gone through this process, it became clear that the Department of Education just doesn't find people out of compliance. So this announcement last week that the department had found Tufts out of compliance was the second time that that we've ever seen the Department take a firm stance.
I say "we've ever seen" just because the department processes are so opaque that there's a lot of documentation we haven't seen. But we've gone through as much as is available, and it's clear that every single investigation ends in what's called a voluntary resolution agreement. Each of those agreements say, "Here are all the things you've done wrong, here are all the ways you violated the law, but we trust you'll do better in the future."
I remember having a conversation with the director of the Department's Office of Civil Rights region that Yale is within. He said, "We're going to enter into this voluntary resolution agreement with Yale, what do you think?" We told them we really didn't want them to resolve it without a finding, but they they said, "Nope, we're just going to do it."
And we got into this really long conversation with the guy, saying, "Look, they're going to take what looks like a settlement as evidence that they've been doing things right." And he said, "No, there's no way they can do that." Sure enough, the next day, we get an email from Richard Levin, who was then the president of Yale, saying there was no evidence of noncompliance, which is brilliant spin, and the campus newspaper reported that as, "Yale found in compliance with Title IX."
This language is so important. We think the statute allows the Department to levy fines, but the department thinks the only thing it allows them to do is remove all federal funding, which would obviously be a disaster for students, particularly those on financial aid, and turn this into a gender vs. class conflict, which it certainly isn't. But if you're not going to enforce in any substantive way, the only real incentive for a school to shape up is protecting its reputation. If you're not going to call them out publicly for what they've done and instead use this language of "second chances" — which is rings a bit too familiar for survivors of sexual and domestic abuse — then there's really no reason for schools to reform.
Dylan: But the agreement is out there? People can go and read everything the Department of Education found that Yale did wrong?
Alexandra: You can find the voluntary resolution agreement online and it goes through and details, "These are all the things you were doing wrong." Unfortunately it only talks a lot about policy and structure and doesn't really delve into the particulars of many of the stories that the Department heard about what's actually being said when people report to the school, about the gaps between policy and practice. That in many ways goes to understaffing at the Department; it's harder to do that kind of in—depth investigation without a full team. But it also goes to the assumption that we--the rapists, the school administrators--are all good guys here who have just made a few innocent mistakes. The resolution agreements largely assume that if a school's policy says they'll respond to survivors in a certain way and offer them certain resources, that they will. But we're past the point of trusting in universities' supposed good intentions.
Dylan: After those promises were made, since you're still on campus, have you seen any indication that there've been improvements on any of those dimensions? Or are they just words on a page?
Alexandra: The 2011—2012 version of the Department's investigation was good at policy and structural changes. They could say, "Hey Yale, you don't have a Title IX coordinator," or, "Hey Yale, your reporting procedure is confusing and no one knows it exists, you need to do something about that." I do get the impression that, along those lines, things are much better now. People know that they can report.
That said, a lot of the stories I am hearing about what actually happens in meetings between survivors and administrators sound exactly like what was happening in 2008—2009. Yale's poured a lot of money into this, but it's unclear what that means for students on the ground. So they started a consent education program, and that's great. Consent education isn't a silver bullet, but is important. But one of their big activities is a pie baking event, and they sponsored another event where you eat lunch with people in your dorm. So the Department looks at that and says, "Look at all this money Yale is spending fighting rape!" but it's unclear what it actually has to do with stopping sexual violence.
Dylan: If you suddenly were appointed president of Yale tomorrow and had full rein and all the monetary and other resources you needed to restructure the system such that it did right by survivors, what would that system look like?
Alexandra: I would kick offenders out. It is true that sexual violence is an incredibly complicated, difficult issue. That being said, there is so much low-hanging fruit right now. We can talk about dismantling the rest of the patriarchy after we've confirmed that students who rape multiple classmates probably shouldn't be on campus anymore.
That's important for two reasons. One is that repeat perpetrators are the norm; unchecked repeat assailants rape an average of six victims. So expelling repeat offenders is just necessary for campus safety. But it also sends a clear message that violence won't be tolerated. When I was a student, many of the rapists were friends with each other. If you've seen your friend say, "Oh shit, I was reported, I wonder how this is going to go" and then get off, you've learned that you're never going to be held accountable for your actions.
Dylan: What do you think the role is for, in your case, the New Haven PD but more generally law enforcement agencies around campuses?
Alexandra: It's essential that universities not discourage people from going to the police, which is really common. And i's essential that police understand university procedures, because there are a lot of things that the universities can do that the police can't. For example, the university can move someone out of your English section, and the police have much blunter instruments for that.
With that being said, my experience is that generally survivors don't trust police. There's a bill currently underway in California to require universities to report all assaults to the police. I actual don't think that the bill is legal, because of privacy concerns, but even if it were, the huge consensus has been that no one would report to their schools if that information is passed on to police. Survivors hear about how police and prosecutors treat victims, and they understand the systemic violence of the system they'd be turning to. And generally the police can't do many of the things that they want them to do, things like, "Get me out of this dorm", "Get my assailant switched out of this section," "Fire this professor."
At the same time, I'm hesitant to entirely dismiss the criminal justice system because I think it's telling that the one area where we decide people need to protect assailants and refrain from reporting is sexual violence. That feels very gendered to me; women are always supposed to forgive.
Dylan: How hard is it to track progress on these kinds of dimensions? Are there actual records showing how often survivors' requests are being honored or dismissed?
Alexandra: It is hard. Some universities have started releasing more information about their internal investigations. Yale puts out a biannual report that says, "These are the kind complaints we got, this is what happened with them." Of course, that doesn't tell you what the survivor was asking for. The report may list that a student was put on probation, but there's no indication that the reporting survivor asked for expulsion to feel safe on campus.
It's also hard to track the gap between survivors' wishes and schools' decisions because there's a lot of subtle directing. This is still something we're seeing at Yale, where they say, "You can file an informal or a formal complaint. It's totally up to you, but you should know that the formal complaint is really emotionally difficult and it's going to take up a ton of your time for the next three months." Which is true, but they're leaving out the fact that if you file the informal complaint, you're going to be on campus with the perpetrator for four years.
Dylan: How did Know Your IX as a national organization come about? How did you get connected to people on other campuses working on this?
Alexandra: Know Your IX is part of a larger movement that is really decentralized: people are facing specific issues on their individual campuses using context—specific strategies for that. There's no single national narrative. But there's also been important work that's come from collaborations between campuses. I was put in touch with Dana Bolger at Amherst my senior year by a friend I had gone to high school with. Dana was behind all of that organizing at Amherst, after which two students from the University of North Carolina reached out to her, and then a ton of students reached out to them, and this resulted in an informal network of organizers who were sharing legal information, sharing strategies, and helping each other write complaints and press releases and take care of ourselves.
One thing we realized is that, while we were grateful to have eventually discovered Title IX, it would have been valuable to know about it when we first really needed it. That's why we created Know Your IX: to make sure that all students in the country know they have a right to an education unencumbered by violence under Title IX. Then, over last summer, we launched the Ed Act Now campaign for better enforcement of Title IX. Step one is students knowing about the law, but that's pretty meaningless if no one's enforcing the law, and that's really been the case until now. Our main priorities have been substantive enforcement and greater transparency.
No one had ever pushed for the release of the list of schools under investigation. We first recognized the need for Department of Education transparency because we were trying to track patterns in the Department's investigations and couldn't because there was no open information about the Department's work. It struck us that there's no way to hold schools' or the Department accountable if we don't know how these investigations are playing out. We organized a protest in July that led to meetings with the Department and the White House, and one of the first things we said was, "We need this list." And this past week--after many more meetings, after another petition, after lots of help from allies, after hearing "no" many more times--the list was released.
Dylan: How would you characterize your relationship with the Department and the White House? It seems like they've been doing a bit, but what has it taken to bring them to the table?
Alexandra: It's funny to compare dealing with the Obama administration with dealing with individual university administrations because some of the same strategies have been useful. That being said, the White House has, in many ways, been more receptive than our own school presidents: the July protest was much more effective than I thought it would based on my experiences with campus organizing. We had a petition with 175,000 signatures, and there were 30—50 of us outside the Department, and we got meetings with [Education Secretary] Arne Duncan, with [Michelle Obama's chief of staff] Tina Tchen, with [White House Advisor on Violence Against Women] Lynn Rosenthal, almost immediately. I'm heartened to know they're really listening.
That being said, we have a long way to go, and the White House and the Department know that. I think this is just how political change happens: school administrators and government administrators go for the easy asks first. This White House report is a huge deal, we're really pumped about it, and we didn't expect as much as they gave. That being said, there's nothing about real enforcement in there. It's really interesting to track the parallels between how the schools treat perpetrators and the department treats schools. The schools say they'll develop consent education, while the department says they'll develop FAQs to help schools comply. There's no discussion of actually holding people accountable, because that ruffles feathers. But there's more to come.
Dylan: In terms of what form that would take, apart from fines and cutting off funding altogether, are there other tools in the federal arsenal that they could be using?
Alexandra: We hope that this Tufts finding indicates a shift in their thinking. We think finding schools out of compliance could be a helpful tool. Schools get very frightened when you threaten their reputations. And it's heartening to see the Department to do its job. There was a really telling moment when they gave us a series of sorry reasons for why they couldn't release the list of schools under investigation, one of which was, "You're already doing this. You're already publicizing the complaints on individual campuses."
But at the end of the day, Title IX should let students think about schoolwork rather than thinking about rape. For a few years, the department has outsourced its responsibilities to students. It shouldn't be up to students like Landen Gambill to speak up about problems on her campus at the threat of honor code charges. Now, I hope, the the Department has recognized that there's force in public shaming and it's their job, not ours, to use that tool.
Dylan: Where do you go from here? Are you going to keep pushing the Department of Education, or working more on outreach? All of the above?
Alexandra: There's still information we need. We don't know how long these investigations have been going on for, what their status is. And we don't have lists for previous investigations, which is necessary. Harvard's been under investigation three times in the last decade. That tells us a lot both about the school and the Department. But we only know that because there are Harvard organizers working with us, and there are probably lots of other schools like that. This release was one snapshot of investigations at one moment, and it doesn't tell us enough.
We've been pushing for more proactive investigations. Going through the complaint process is really arduous, it's hard, it's complicated. But if the department sees a school that's in the news for mishandling sexual violence, it should investigate rather than waiting for students to take on the burden of a federal complaint. But we do think that for real enforcement action, we're going to have to turn to Congress. There's some buzz on the Hill about providing the Department with more tools for enforcement and with more funding so it can hire a sufficient staff.
I think we as a larger movement are making some important strides but — I don't know if you read Katie Baker's article in Buzzfeed on the cottage industry of consultants helping universities evade responsibility on this, but it's really scary. It's important that we maintain a focus on equality and justice, and not just on legal compliance, which invites a search for cosmetic solutions. Schools understand sexual violence as a PR and risk management issue, and they'll look for the least costly way to avoid responsibility. It's of a piece with the corporatization of higher ed in general, but we can never allow university anti-violence policies to be about checking boxes to avoid lawsuits. The question has to be "What would a just educational community look like?" not, "How much rape can a school get away with?" And our movement's ambitions can't be limited by what the law says we deserve.
Correction: Brodsky was originally quoted as saying "unchecked assailants rape an average of six victims." That is the average for unchecked repeat assailants, not unchecked assailants overall.