Is a Fair Title IX System Possible?

When Laura L. Dunn was a freshman at the University of Wisconsin at Madison, two of her crew teammates sexually assaulted her after she’d gotten drunk at a fraternity party, she said. Dunn didn’t know where to find support, how to get a rape kit done, or how to report it to the university.

It was 2004. The Title IX office of today — where students typically go to report sexual assault and harassment — didn’t exist.

Only after a professor mentioned sexual-assault reporting during a class lecture, more than a year later, did Dunn know that she could come forward about what had happened. She went to the Dean of Students Office, where the person at the front desk — also a student — asked her what she needed. Uncomfortably, she replied: “I need to report a sexual assault.”

Colleges have fielded sexual-assault complaints for decades. But for much of that time, the institutional responses were often inconsistent, the processes murky, and the resolutions unsatisfying. Even if students came forward, they felt like campus administrators were brushing off their experiences, doubting their recollections, and encouraging them to drop their cases.

The two men Dunn accused weren’t punished. When the verdict came down, nine months after she’d reported, one of the men had already graduated. She remembers the exact reason an administrator gave her for not disciplining the other student: Because both of them had been drinking, consent was “moot.”

André Chung for The Chronicle

Dunn filed a complaint against UW-Madison with the U.S. Department of Education. The government investigated its handling of Dunn’s case and found no wrongdoing, a university spokeswoman said. But Dunn believed that federal officials had let the university off the hook.

So Dunn, along with a growing number of students across the country, told her story to the news media and demanded change on campuses, sparking outrage and touching off a reckoning over the way colleges handled rape cases. Since then, the movement against campus sexual assault has reshaped college policies, ignited an influential conversation about sex and consent, and helped foster new societal norms.

It also prompted the federal government to step in.

Three political administrations have sought to hold colleges accountable for their handling of campus sexual assault under Title IX, the 1972 law that prohibits sex-based discrimination in education. Under President Barack Obama, the Education Department opened hundreds of investigations and threatened to pull colleges’ federal funding if they failed to support victims. Under President Donald Trump, sweeping reforms mandated a court-like judicial process with live hearings and cross examination in an effort to protect the rights of the accused.

Now, President Biden — who, as vice president, led the Obama-era campaign against campus rape — has ordered another federal review that will upend the rules yet again. Biden’s Education Department will hold a five-day public hearing about Title IX in June.

Colleges and policy makers have already devoted a great deal of time, resources, and energy to trying to combat campus sexual assault.

But have colleges actually gotten safer? Are disciplinary processes fairer?

It depends on whom you ask.

Ten years ago, the Education Department’s top civil-rights official vowed to put a stop to what she saw as an epidemic of sexual assaults harming students’ access to education. The department announced in a “Dear Colleague” letter that colleges would need to start taking sexual assault seriously, or else.

Then-Vice President Biden headlined the announcement event. Dunn was there, too.

“When it comes to sexual abuse, it’s quite simple: No means no,” Biden said in his speech. “No means no if you’re drunk or you’re sober. No means no if you’re on a bed or in a dorm or on the street. No means no even if you said yes at first and you changed your mind. No means no.”

The Dear Colleague letter demanded that colleges act whenever they know “or reasonably should know” about possible sexual violence occurring, even if it occurred off campus; use a “preponderance of evidence” standard — that the allegations were more likely true than not — to decide whether accused students should face punishment; and resolve all sexual-assault cases within 60 days. Colleges were directed not to wait for law-enforcement authorities to finish criminal investigations before acting.

Failing to take such steps could create “a hostile environment” for students, the letter said, and put colleges in violation of Title IX. Education Department officials reminded colleges that, if they didn’t get in line with the document’s directives, they could lose all of their federal funding. The department has never followed through on that threat.

Perhaps even more compelling than the financial pressures were the public-relations ones. No college wanted to end up in the news because of a federal investigation into rape cases.

But many colleges did, thanks to a passionate network of student activists who organized to file federal complaints against their colleges. By the end of Obama’s presidency, the Education Department had opened more than 400 investigations into institutions for allegedly mishandling sexual-assault reports.

The heavy caseload and breadth of the reviews meant that many investigations took years to resolve. Still, as Dunn sees it, the government’s aggressive stance was crucial: “There is no incentive for them to handle sexual assault well,” she said of colleges.

The tidal wave of attention on campus sexual assault also led to congressional action and new state laws. It led to a campaign, championed by Biden, called “It’s On Us,” which promoted the idea that everyone — especially men — was responsible for preventing assault. It led to the birth of fully fledged campus offices to deal with sexual-misconduct reports and, at some large universities, a dozen or more new hires.

Former student activists who led the movement against sexual violence see clear signs of progress. “It is undoubtedly true that many colleges and universities are doing a better job of handling complaints of sexual harassment than they did when I was an undergrad,” said Alexandra Brodsky, who filed a federal Title IX complaint against Yale University in 2011, when she was a junior.

These days, higher education is mired in debates about the minutiae of Title IX procedures, said Brodsky, now 31, who represents harassment victims as a staff attorney at Public Justice, a legal advocacy nonprofit. That’s a far cry from how things used to be, she said, when colleges rarely talked about sexual assault at all.

Dunn, now 35, also represents victims as a lawyer. Back when Dunn was in college, she said, young people still tended to think about rape as a crime perpetrated by strangers. Now, most students she talks to know that their peers — even their friends — can commit such acts. Many of them understand sexual boundaries, consent, and the importance of stepping in when a friend appears too drunk.

They’re also reporting assaults to their institutions at much higher rates. Some large universities now receive hundreds of Title IX reports each year. Experts say that points not to more violence on campuses, but to greater knowledge of how to come forward and to more options — anonymous online reporting, for instance.

Under a federal law that Dunn helped win support for, colleges are now required to provide sexual-assault-prevention training to new students, as well as to new faculty and staff members. “We have a much greater awareness of how to keep our friends and community members safer,” said Jody Shipper, a former campus Title IX official who now advises colleges.

The Campus SaVE Act also guaranteed rights that Dunn said she didn’t have: that students involved in a Title IX case would receive written notice of the outcome, and that students would be able to bring an adviser of their choice — who could be a lawyer — to interviews and hearings.

Another shift was in how students were disciplined for sexual assault. During the early 2010s, news reporting revealed that few students were being kicked out for committing rape. That appeared to change after the Dear Colleague letter, Dunn said, with more students facing suspension or expulsion. After years of what many advocates considered slaps on the wrist, such as having to write apology letters or do community service, they were pleased that students who committed sexual assault were finally facing accountability.

Colleges weren’t disciplining students in every case, said Courtney Bullard, a former campus lawyer who now advises colleges on Title IX. However, because of federal scrutiny, she said, “the pressure on institutions was real to find students responsible.”

It wasn’t long before those students began to speak out about what they saw as unfair processes and draconian consequences.

Their stories soon captured the attention of a new education secretary who set out to make her own mark on Title IX.

On October 4, 2016, Ben Feibleman was hanging out with other students in Columbia University’s Graduate School of Journalism — first at a reception, and later at an apartment. People were drinking, he said, but for the most part, not to excess. At the end of the night, as he tells it, a female student wanted to have sex with him; he just wanted to go home.

“She wouldn’t let me go, and she wouldn’t take no for an answer,” Feibleman said in an interview with The Chronicle.

But the woman reported to the university that he had sexually assaulted her.

There’s no dispute that Feibleman and the woman, whose name hasn’t been revealed publicly, participated in some sexual activity. Was she too drunk to consent? And if she was, did Feibleman know that? The case centered on those two thorny questions.

Starting a couple of years earlier, federal guidance and state laws had prompted colleges to spell out clearer definitions of consent. For Columbia and other colleges in New York, the standard in 2015 became “affirmative consent.” Students needed to make sure their sexual partners were enthusiastically participating in any encounter. In other words, “yes means yes.”

At the time Feibleman was accused, Columbia’s policy also specified that “consent cannot be procured from a person who is incapacitated,” defined as someone who could not understand the “who, what, when, where, why, or how” of the sexual activity, or who displayed visible warning signs like slurred speech or personality changes.

Using a preponderance of evidence standard — which had become the norm — Columbia officials decided that the woman who accused Feibleman was incapacitated and couldn’t consent. In June 2017, they found him responsible for sexual assault and revoked the master’s degree he’d just received.

But Feibleman believed he was a scapegoat for Columbia administrators. The university had recently been under fire from student activists who accused administrators of mistreating victims. Less than two weeks after Feibleman was accused, Columbia learned that the Education Department was opening a federal investigation into allegations that campus officials had dropped the ball on a rape report.

Columbia needed to prove to regulators and the public that it took sexual assault seriously, Feibleman said. Asked about his experience with Columbia’s process, he responded: “Title IX quote-unquote ‘process’ isn’t the right word. ‘Performance’ would be more accurate.”

Feibleman became part of a burgeoning movement of accused students who said that they were wrongly being branded as rapists based on alcohol-fueled sexual encounters where the facts remained murky. And like a growing number of them, he sued his university, claiming that administrators had been biased against him on the basis of sex.

Often, campus Title IX investigations have to sort out what happened behind closed doors with little evidence and few witnesses. But Feibleman had made a 29-minute audio recording while he was with the woman.

Feibleman had also taken hundreds of photos of his peers throughout the evening — which wasn’t unusual, he said. He was “the kid at school with the camera,” and took 23,000 photos of his peers during his year at Columbia, he said. As a result, “I had a minute-by-minute account of everything that happened that night.” His 2019 lawsuit made public many of those details — including the transcript of the audio recording.

Feibleman and the university had very different interpretations of what that evidence showed.

Before the recording began, Feibleman told The Chronicle, he and the woman were kissing. He said that he penetrated her with his finger and lightly choked her, but contended it was consensual. He began the recording, he said, once she started getting frustrated with him for not continuing. According to the transcript, the woman asked Feibleman to have sex with her more than two dozen times that night, and he repeatedly told her no.

Brittainy Newman

In court documents, lawyers for Columbia questioned Feibleman’s intentions for making the recording, arguing that he should have just left the room. They said he knew he might get in trouble and was trying to exculpate himself. Feibleman told The Chronicle he simply followed through on what the journalism school had taught him: “If you don’t know what’s going on, just start documenting.”

As Columbia saw it, the woman was slurring her words and “indisputably experienced ‘memory impairment’” as defined by campus policy. The university cited a point in the recording’s transcript where the woman’s tone changed abruptly and she suggested she didn’t remember what they had been doing. Feibleman also was fully aware of her condition, the university argued, because he told her she was “too drunk” to have sex during the recording 12 different times, and said the same thing in a text message sent shortly after the encounter.

“It takes no leap of logic to conclude,” university lawyers wrote in court documents, that the woman’s “conduct reflected severe intoxication and inability to consent.”

But Feibleman told The Chronicle he only told the woman she was “too drunk” because he was looking for an excuse to leave the apartment. When he tried to leave, he said, she got upset. He contended that she wasn’t that drunk, because she hadn’t had a drink for several hours, had just successfully climbed up and down a 30-foot water tower, and only made one grammatical mistake in a nearly 30-minute conversation.

A lawyer for the woman wrote in an emailed statement: “Despite the aggressive and harrowing attempts to shame my client through the court system, she has no regrets about coming forward with her complaint of sexual assault.” The woman’s allegations, said the lawyer, Iliana Konidaris, were “validated at every step of the university’s process.”

In an opinion denying Columbia’s motion to dismiss the case in February 2020, a federal judge wrote: “While the tape shows that Doe [a pseudonym used for the woman] is at times mumbling, it also shows that, overall, she is quite clear and coherent.” The judge wrote that while Feibleman likely “made a misguided decision” that night, there was some doubt that he could have known she was too drunk to consent. Columbia, the judge concluded, might not have gotten it right.

Feibleman also reported to the university that she had assaulted him. He alleged that she had hit him, bitten him, and tried to perform oral sex on him without his consent. Columbia officials investigated the claim as harassment, rather than sexual assault. They determined that Feibleman’s allegation was not credible, and she was not disciplined. Some victim advocates have decried counterclaims, an increasingly common step taken by accused students, as a retaliation tactic.

During the campus Title IX hearing, Feibleman said, no one asked about his claim against her. He attributed that to the campus conversation about sexual assault at Columbia, which focused largely on women’s experiences as victims, and to the Title IX training that administrators had received. As he saw it, administrators were predisposed not to believe he could be a victim because he was a man.

“No one thinks that men can be scared by an aggressive woman,” he said. “But I was scared, and I did feel coerced.”

As more accused students sued their colleges, one of their most frequent complaints was that Title IX training stacked the decks against men.

In 2014, the White House’s Task Force to Protect Students From Sexual Assault recommended that all college officials involved in handling sexual-assault cases receive training on the effects of trauma, which can cause victims to have fragmented memories or to act in counterintuitive ways. Many colleges embraced trauma-informed interviewing, a practice that discourages investigators from framing questions in ways that could appear to blame students for their actions during or after an assault.

Feibleman’s lawyer, Kimberly Lau, believes that administrators attempting to embrace trauma-informed approaches have instead reinforced gender stereotypes. As Lau sees it, such training promoted the idea that victims are typically women and perpetrators are typically men. (Much of the time, that is true, but not always.) The training also made different assumptions about the kind of behavior that was acceptable for alleged victims and accused students, said Lau, who has represented both sides in Title IX cases.

Some argued that men of color were disproportionately being railroaded. Though colleges rarely release demographic data on Title IX cases, “the threat of racial bias in campus discipline is real and demands attention,” wrote Ben Trachtenberg, a law professor at the University of Missouri at Columbia, in a law-review article.

As Feibleman’s case was adjudicated, the tide began to turn. Donald Trump won the presidential election in 2016, and his administration’s Education Department took a vastly different stance on Title IX. Secretary Betsy DeVos declared that campus Title IX processes were unfair to all sides, and she withdrew the Obama-era Dear Colleague letter. It had become too easy to find accused students responsible for sexual misconduct even when the evidence was inconclusive, DeVos said.

She spent much of her four-year tenure crafting new Title IX regulations, which took effect in August 2020. The rules required many colleges to make sweeping changes, adding due-process protections like mandatory hearings where students involved in a sexual-assault case had to be cross examined. The federal government adopted a narrower definition of what constituted sexual harassment under Title IX.

Accused students also started winning more victories in court.

Last December, Columbia paid Feibleman a confidential settlement. In a statement, the university stood by its disciplinary finding that he had committed sexual assault. But Columbia awarded Feibleman his master’s degree and deemed that he was “an alumnus in good standing.” Feibleman, who had sued for $25 million, declined to say how much money he’d received.

This academic year, sexual-misconduct cases made their way through the Trump-era Title IX system for the first time. It’s supposed to ensure fairness to both sides and give accused students ample opportunities to defend themselves.

But for Katherine Limb, the revamped Title IX process felt like a wrecking ball that didn’t suit her case at all.

Limb, a rising junior at Creighton University, never wanted to go through a formal investigation. She just wanted the harassment to stop.

Limb said the problems started in the fall of 2019, her first semester at the private college in Nebraska. Like most first-years, Limb said, she really wanted to make friends. So when a male student suggested watching a TV show in his dorm room, she agreed. He was in the same major and involved in several of the same student organizations, including a business fraternity.

At one point, he turned the conversation to sex, she said. He talked about being a masochist and how he was “turned on by pain.” Limb felt uncomfortable and hastily tried to change the subject. Later, when she decided to head home, he got up and stood in the doorway, physically blocking her path. He wouldn’t let her walk back to her dorm herself.

Limb said she’d been sexually assaulted before. Her mind jumped to: How am I going to get out of here? “I just remember feeling like the room was getting smaller and smaller,” she said.

A few days later, she saw him again. They were in the same research group in the business school. As she cracked her knuckles, she said, he responded: “That’s hot.”

Throughout the fall, Limb said, he asked her multiple times to hang out, and she declined. And for much of 2020, he repeatedly made sexist, offensive comments, either toward her or other students, she said. With the many classes and extracurriculars they shared, she couldn’t just avoid him.

Initially, Limb didn’t want to tell the university. Eventually, she was inspired to come forward to her business fraternity after learning that other students would also be reporting him. She thought that the fraternity would handle it and that she would remain anonymous.

But then the fraternity’s leaders told her they had to tell the Title IX office under the university’s mandatory-reporting policy, which requires most campus employees — and encourages everyone — to report any potential sexual misconduct they learn about. Mandatory reporting was encouraged by the Obama administration to make sure colleges didn’t fail to respond to allegations.

As Limb understood it, the male student would know that she’d accused him of misconduct no matter what she chose to do next. Creighton officials gave her the option of an informal Title IX resolution. Trump’s Title IX rules gave colleges more flexibility to use practices like mediation and restorative justice, which emphasize taking responsibility and learning how to change, versus punishment.

Limb, though, didn’t want to sit down with the male student and tell him how to better his behavior. She felt that burden should be on university administrators, not on her.

Cindy Workman, a spokeswoman for Creighton, said that even after a mandatory report comes to the Title IX office, it’s up to students whether they want to file a complaint and reveal their identity to the person they accused. During an informal resolution, Workman wrote in an email, students aren’t required to discuss the other person’s behavior with them directly. But to Limb, a formal investigation and hearing seemed like the only way to make sure the student learned his lesson.

Limb said her hearing was the first one Creighton had held under the Trump-era rules. Administrators stopped a few times to check the rulebook, she said, and to ask one another: Can we do this? The male student wasn’t remorseful, Limb said, and offered no indication that he planned to change his behavior. (Limb’s friend, who attended the hearing as a support person, confirmed her account.)

In December 2020, according to a letter of finding that Limb shared with The Chronicle, the university’s hearing panel deemed the male student’s behavior inappropriate. But it didn’t rise to the narrow definition of harassment outlined in the Title IX regulations: “so severe, pervasive, and objectively offensive” that it effectively denies a person access to education. They determined that since Limb had continued to go to her classes and remained part of the campus groups that they were both in, she hadn’t been denied educational access.

So the male student didn’t face any repercussions. The university directed him and Limb to limit contact as much as possible — for example, if they ended up in the same room, they shouldn’t sit next to each other. Currently, Limb said, they’re not in any classes together, but she believes that will change next spring.

This semester, Limb said other members of the business fraternity made it harder for her to serve in her leadership role. She believed it was retaliation. She decided to leave the group in February.

The Title IX process, Limb said, is flawed.

Daniel Johnson for The Chronicle

Limb felt she shouldn’t have had to compromise her own educational experience — in other words, stop going to classes — just to prove that she had experienced a “hostile environment” under Title IX. “I remember thinking, I’m literally being punished right now because I am choosing to be a strong woman,” she said.

Limb has ideas for how to improve the system — specifically, to create a route outside the Title IX office for students like her. The behavior she experienced felt more gray, not black and white. “Part of what doesn’t work with Title IX is that it goes to the absolute extreme before you’re given an outlet for anything else,” she said. “Sometimes the person — the complainant — saying stop isn’t enough, but there’s no middle ground between the complainant saying stop and a Title IX investigation. I didn’t need it to go that far, but that was my only option because he was no longer listening to me.”

Limb met with administrators in the business school to advocate for her ideas early in the spring semester. She said she hasn’t heard from them again. Workman, the spokeswoman, said that the College of Business doesn’t oversee Title IX and can’t create a separate system for reporting outside of the official Title IX process.

A decade after student activism first helped reshape the Title IX landscape, students are still protesting. At campus rallies, they hold many of the same signs — about the number of students who experience sexual violence, about accountability, about believing survivors.

Many people vehemently disagree on what kind of behavior constitutes a sexual assault, or how to determine whether an accused student should face punishment, or whether colleges should handle such investigations at all. Some continue to wonder why serious crimes like sexual assaults aren’t immediately referred to the police.

Travis Long, AP; ALEX ABRAMI, Free Press via Imagn

As colleges tried to create Title IX processes that were supportive of alleged victims, fair to the accused, and aligned with changing government directives and court opinions, administrators struggled at times, Title IX experts said. But they said colleges want to get it right. These days, campus Title IX officials better understand the nuances of alcohol’s role in sexual assault, how to properly account for the effects of trauma, and how to treat both sides equitably.

Colleges are legally obligated to do something about sexual misconduct. In the coming months, the Education Department will once again consider a complicated question: What should that look like?

Familiar faces are in charge. Biden’s nomination of Catherine E. Lhamon to lead the Education Department’s civil-rights office last week signals a potential return to the aggressive enforcement and accountability focus of the Obama era.

Accused students and their advocates would probably prefer to keep Trump’s Title IX rules in place. “It’s an easier pill to swallow when you feel like you’ve been given a fair shake, even if you lose,” said Lau, the lawyer who represented Feibleman. But college administrators believe some of the mandates — particularly the hearing requirements — are onerous, unnecessary, and don’t always work well in practice. Colleges also criticized the Obama-era approach as antagonistic and inflexible.

Debates about campus rape have become fraught and politicized, with battle lines drawn and seemingly little room for middle ground. “It’s a lot of people talking past each other — a lot of people talking at each other,” said Brodsky, the former student activist turned lawyer. In her new book, Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, she wrote that many due-process supporters came to the table in bad faith — and as a result, some victim advocates “abandoned complexity.”

Colleges are supposed to make sure that students are able to learn in a safe environment, Brodsky said. “The question is, what is necessary for a victim to be able to fully participate in campus life?” she said. “Sometimes, that is not possible for a survivor if they are sharing a campus with a person who assaulted them.” In other cases, she said, institutional support is all a victim needs.

So what should colleges do about students who commit sexual misconduct? Title IX officials and prevention experts say there’s a role for education — in helping students learn how to correct their behavior. Dunn, also a former student activist turned lawyer, supports practices like restorative justice. But informal resolutions shouldn’t serve as a replacement for a broken adjudication system, she said. She cautioned against too much emphasis on educating the accused: “My body’s not for learning.”

Elizabeth Seney, senior associate director of the Office for Institutional Equity at the University of Michigan at Ann Arbor and Title IX coordinator, said she hopes the Biden administration will land on a less-complicated legal framework for handling cases that students and employees can actually understand.

One of Seney’s chief considerations is improving students’ trust in the Title IX office. Often, the neutrality of investigators comes across to students as cold and unfeeling. And yet, that stance is essential to avoid bias and to build that trust, Seney said. Title IX administrators can be empathetic and sensitive, she said, but “they have to be impartial. There’s absolutely no room for compromise there.”

Allison Tombros Korman hopes that the future of Title IX will put more emphasis on prevention and less on adjudication. More research is needed on how to stop people from perpetrating violence, said Korman, senior director of Culture of Respect, a division of Naspa: Student Affairs Administrators in Higher Education that helps colleges improve sexual-assault prevention.

Until prevention education starts earlier in students’ lives, Korman said, “we’re going to be playing this really challenging game of catch-up when we see violence occurring on college and university campuses.”

The government aside, colleges increasingly fear the lawsuits and negative attention that can result no matter which outcome they reach in a case, Lau said. “Sometimes that makes for really odd and strange decisions by the school, ones that don’t really make sense,” Lau said. There’s an attempt to please both sides: A sexual assault that caused physical harm, for instance, might result in a one-semester suspension.

Given that students and colleges want different things out of it, it’s hard to imagine an ideal Title IX process, Lau said: “I don’t know if all of those interests can really be perfectly balanced.”

There’s consensus about one thing, though: The political ping-pong over Title IX isn’t fair to students or to colleges.

No one wants to do this again in four years.

Clarification: A comment from Allison Tombros Korman has been updated to clarify that more research is needed on violence prevention, not just its causes. Korman told The Chronicle she misspoke.