Balancing Enforcement With Education

Three months ago, reviews were mixed when U.S. Education Secretary Betsy DeVos announced the imminent rescinding of the Obama administration’s famous 2011 Dear Colleague letter, which provided guidance on Title IX and campus sexual assault and harassment.

On the political left, commentators like Lucia Graves argued that DeVos’s move let colleges off the hook and showed disproportionate concern about false rape accusations. Other writers commended DeVos for attempting to balance public safety with due process. Most colleges and universities adopted a “wait and see” response, leaving in place current Title IX procedures, while also awaiting the Department of Education’s promised revised guidance. Meanwhile, the #metoo movement has, of course, brought issues of sexual assault and harassment into the national limelight to an extent that would have previously seemed unimaginable.

Yet as higher educators, it seems important not to let the parade of headlines about celebrity and politician resignations distract us from what amounts to dual, pressing tasks on our campuses. The first is to create a culture of public safety to combat sexual assault and harassment and all the devastating impacts this has on our students. The second, just as important, is to nurture a culture of testimony and dialogue around campus sexual assault and harassment, so as to dispel the destructive myths that continue to feed the epidemic of violence, as well as to fulfill our missions as institutions that facilitate knowledge.

Although much of the evidence is still early and tentative, it strongly suggests that engaging in honest discussion about sexual assault and harassment can reduce its incidence. Promising strategies include exposing potential perpetrators to survivors’ testimonies, as well as thoughtful reflection regarding bystander behavior. It is in this latter area -- facilitating students’ stories and honest self-analysis -- that DeVos’s proposed reforms to Title IX enforcement may, perhaps surprisingly, offer universities important opportunities.

Turning Pain Into Insight

By way of background, and to provide an example, I am a professor of creative nonfiction, as well as the author of a memoir about surviving a homophobic sexual assault. As in most nonfiction classes, students in my workshops frequently submit for critique stories about sexual assault and harassment.

Their goal is to work on crafting essays and narratives that can speak insightfully to the public discussion about sexual violence, whether from the perspectives of survivor, guilty bystander, perpetrator or some combination of the above. Students in my classes have published work that has won accolades and had an impact both on my own campus and beyond.

In earlier years, I’d usually tell my group of young writers on the first days of my undergraduate memoir classes that creating a memoir can be a tremendous gift. Sharing my own experiences, I’d explain, “Turning pain into beauty with empathy, language and insight contributes to psychological healing. Sometimes, you even get to speak truth to power and change the world just a little bit, too.”

We talked about what such memoir needed to be nurtured. One of my most important preconditions is classroom confidentiality. Students cannot figure out if they want to share a story publicly, and how to do so most skillfully, if the act of trying out what it might be like to testify becomes essentially identical to the act of going public itself.

I did explain that, as a university employee, I had to take seriously any threats of substantial, imminent harm to students, and that might limit my own ability to offer confidentiality. I reminded students of the supportive resources the college offers.

Then, in early 2014, in response to the DOE Title IX guidelines, my university officially designated me a “responsible employee.” For the next three years I had to report all disclosures of gender-related violence to a Title IX coordinator, who would follow a series of federal mandates. It didn’t matter if these incidents happened on or off the campus, or how long ago they occurred, so many of the reports I called through pertained to long-ago, faraway occurrences.

To be fair, over the past three years, the coordinators did, for the most part, show patience, sensitivity and kindness. I would dutifully pick up my office phone, call up my colleague and report, say, a draft memoir about a groping at a high school booze-up on the other side of North America.

My colleague would state the obvious: “I’ll call the student and suggest counseling, but there’s no mandate for us as a university to conduct a disciplinary investigation.” And then the student would field the call, and say, “No worries, I processed this experience a long time ago. I just want to write a memoir, that’s it.” And we would all simply go back to our work lives.

Yet the classroom dynamic was nevertheless profoundly altered. Students could write about bullying, racism, mass murder or terrorism without automatically launching a university investigation. But if their writing crossed a line into sexual misconduct, then everyone knew a Title IX administrator would be entering the conversation and making decisions that could affect the writer as well as, by extension, our classroom literary community.

Of course, I tried to reassure students. In all but the gravest situations of public danger, I explained, you’ll retain control of your story. These rules try to make our campus safer.

Yet for all that, the stifling effect was dramatic. Student memoirs of sexual assault and harassment became rare, bystander and perpetrator memoirs all but nonexistent. In another class on the campus, Women and Violence, taught by a colleague in gender studies, students began to hand in reflection assignments with whole sections redacted to avoid Title IX reporting, an invisible crime erased one more time by swabs of black ink on typed pages.

It was hard to believe any of this was ever intended by the Department of Education, which, recognizing the possible tensions between mandatory reporting and nurturing student testimony, had carved out exceptions to Title IX procedures for events like Take Back the Night. Nevertheless, a cautious interpretation of the previous administration’s policies argued against exempting any faculty members from reporting mandates in actual classroom settings.

The Need for More Exemptions

At my own institution, several of my colleagues joined me in raising concerns about the new reporting mandates on our classes. In response, in January 2017, my university decided to let professors apply for exemptions from being responsible employees under Title IX in specific contexts, as long as the instructors provided both a rationale for doing so, as well as written disclaimers in their syllabi explaining that disclosures of sexual assault and harassment via classroom assignments would not be regarded as reports for the purposes of institutional response. But it is fair to say that carve out was offered in the face of some uncertainty as to how the Education Department’s Office for Civil Rights would regard this exception.

As of December 2017, most professors of personal reflection classes across the nation remain required to report any disclosure of sexual assault or harassment to Title IX coordinators. This situation, while understandable and well intentioned, arguably persists to the detriment of the courses themselves, campus education on the topic of gender and sexuality, and perhaps above all to students who wish to explore sexual assault and harassment as a topic. Title IX was originally passed to protect all students’ right to an education, regardless of sex or gender. Ironically, writers who wish to testify to sexual misconduct, or process the psychological aftermath of such abuse, now face obstacles that are not present for other students.

Unlike the 2014 guidelines issued by the Office of Civil Rights, the September 2017 revised, interim Q & A regarding campus sexual misconduct contains no specific references to responsible employees and mandatory reporting. Similarly, Betsy DeVos’s speech on Title IX enforcement promises a process of broad consultation with stakeholders in order to develop revised guidelines for how campuses should respond to sexual assault and harassment.

The need to balance enforcement with education should become a part of that public discussion. Exceptions to mandatory-reporting requirements should be retained for counseling centers and for public awareness events, but such exceptions should also be explicitly extended to classrooms where sexual assault and harassment are potential topics for writing, learning and discussion. Carve outs such as the one at my own university for personal reflection classes might well serve as models for future national guidelines and protocols. Properly managed, confidentiality need not be the enemy of accountability or safety. It can be its essential partner, nurturing a campus climate that makes us all wiser and kinder.