The Letter and the Law

04.17.2017

How Title IX and the “Dear Colleague Letter” Shape Policy Regarding Campus Sexual Assault

The questions at the center of Anna Ziegler’s beautiful and complicated play Actually revolve in part around how we categorize and assign names to ambiguous or troubling circumstances in an effort to understand them. In this case, the category is sexual assault and for this, there are strict guidelines in place for universities to handle each individual situation with an overall statute. Actually explores where the complexities and failures of humans come into play in these proceedings. But what are the actual rules? What are the legal statutes in place to protect students? It begins with what is known as Title IX.

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Title IX of the Education Amendments of 1972 states that “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.” While the original amendment suffered from vagueness, subsequent Supreme Court decisions in conjunction with the U.S. Department of Education have expanded the scope of this to include the prohibition of sexual harassment of students, including acts of sexual violence. Failure to comply with the enforcement of this statute puts an institution at risk of losing federal funding. In 2011, to further specify the responsibilities of institutions to handle these matters with the upmost diligence, the Department of Education published guidance materials. These guidelines, known as the “Dear Colleague Letter,” addressed in detail how to handle cases of campus sexual violence. Somewhere between an inquiry and an in-house trial, campus proceedings seek to address these very individual cases with some sort of methodology. These procedures are the framework in which Actuallytakes place, and include:

Disseminating a notice of nondiscrimination
Designating at least one employee to coordinate an institution’s efforts to comply with and carry out its responsibilities under Title IX
Adopting and publishing a clear procedure for providing a prompt and equitable resolution of discrimination complaints

It is important to note that each institution is responsible for designing its own procedures for examining these cases. While the “Dear Colleague Letter” gives parameters, the scrutiny to which these cases are subjected can vary greatly from place to place.

Additional provisions required by Title IX:

Institutions must have a Title IX coordinator who has an adequate legal understanding of sexual harassment and sexual violence. School law enforcement must also have training in these areas.
All institutions are required to adopt and publish grievance procedures that may include mediation, counseling and protection from dealing directly with the accused.
Adequate, impartial investigation of complaints including the opportunity for both parties to present witnesses and other evidence. There is a large focus on the procedures being equitable between the complainants and accused.
The school will conduct a timely investigation of the complaint and notify both parties of the outcome. A typical case should be resolved within 60 days of the initial complaint being filed.

In addition to these legal proceedings, the letter includes provisions for education and prevention of sexual harassment and violence. Complainants are entitled to safety measures that might include campus escorts and the removal of the accused from the complainant’s classes.

While this is a very broad overview of the detailed 14 page letter prepared by the U.S. Department of Education, it makes clear one extremely troubling truth. The very fact that there is a nationally recognized procedure for campus rape cases demonstrates how startlingly widespread this problem has become.

Some troubling statistics:

One in five women and one in sixteen men are sexually assaulted while in college.
Freshmen and sophomores are at greater risk for victimization than juniors and seniors.
More than 90% of sexual assault victims on college campuses do not report the assault.
63.3% of men at one university who self-reported acts qualifying as rape or attempted rape admitted to committing repeat rapes.

So while there is a formal proceeding when a victim comes forward, clearly the system in place is doing very little to make victims comfortable enough to do so. Proving victimization in a culture that can be judgmental of victims is an uphill, humiliating and ongoing battle. And the lasting effects on both parties are profound.

Further, there has been backlash in regards to the implementation of the Title IX practices with questions about fairness to the defendants in these cases. Some critics of the system refer to an overcorrection that infringes on the rights of the accused. “Sexual assault on campus is a serious problem. But efforts to protect women from a putative epidemic of violence have led to misguided policies that infringe on the civil rights of men. Under the new system, there will be no hearing for the accused, and thus no opportunity to question witnesses and mount a defense. Harvard University, the professors wrote, is ‘jettisoning balance and fairness in the rush to appease certain federal administrative officials.’”1 The system is flawed for both the victim and the accused.

And legal recourse means that the problem has been addressed too late. The “Dear Colleague Letter” does lay out procedures for prevention and education but even still, the very definition of rape continues to be reductive. It is synonymous with violence and it has been shown that oftentimes non-consent comes in the form of capitulation based on fear, embarrassment, anxiety, or even drunkenness. Actually is a study of these nuances. It not only forces us to look at the issue of rape through the eyes of both parties, but the variations on what rape means and how we as both audience and jury bring preconceived notions into this already fraught conversation.

What is encouraging, though, is how much sexual violence both on campus and off has become part of the national conversation. A victim at Stanford University, known only as Emily Doe, wrote an open letter (Victim’s Impact Statement)2 when her attacker, Brock Turner, was being sentenced. This incredibly detailed and gut-wrenching explanation of the crime was brutal not only because of the violence of the rape itself, but also the aftermath of how she was treated when she pursued a case against her attacker. After her letter went viral, former Vice President Joe Biden responded with his own letter.3 He praised Emily Doe for her bravery, saying “you are a warrior — with a solid steel spine,” and demanding that as a nation we do better to protect women by raising men who do not perpetuate this pandemic. What Emily Doe’s letter ignited, Biden sought to continue by pushing the conversation into the light. He impresses upon us that we have failed these victims and we must do better. He and others launched the It’s On Us campaign built on the idea that we are responsible for certain action to combat sexual violence — that it’s on all of us:

To recognize that non-consensual sex is sexual assault.
To identify situations in which sexual assault may occur.
To intervene where consent has not or cannot be given.
To create an environment in which sexual assault is unacceptable and survivors are supported.4

While these university inquiries are far from perfect, the inclusion of sexual harassment and assault in Title IX is a step in the right direction. And a play such as Actually recognizes the need to examine each case with great care until such time that sexual violence is no longer an ever-present threat.

The Letter and the Law

How Title IX and the “Dear Colleague Letter” Shape Policy Regarding Campus Sexual Assault

By Amy Levinson