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‘The Achilles Heel of Title IX’

Video: Biden Administration Expected to Reverse DeVos’s Title IX Regulations, Legal Experts Say
Zing Gee

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The boundaries of Harvard College’s campus are permeable. Harvard students register for courses at MIT, and MIT students cross Cambridge to take classes in the Yard. Ivy League student athletes shuttle back and forth between campuses for games and matches, and nearly the whole of Harvard’s student body makes a pilgrimage to Yale to watch the schools’ football teams face off.

Harvard Intercollegiate Model United Nations travels to competitions far and wide, the Harvard Krokodiloes cavort across the globe performing acapella, and the Harvard College Debating Union hosts competitors in Cambridge. Students from neighboring institutions like Lesley University and Boston College join forces with Harvard students to do service work through Phillips Brooks House Association, and undergraduates from Boston University, Wellesley College, and Tufts University converge for late-night parties at Harvard’s final clubs.

“Your college experience would not be an interesting one if all you ever did was interact with each other,” said Hannah Brenner Johnson, a professor specializing in gender power dynamics at the California Western School of Law.

But students’ ability to experience life at nearby academic institutions can cause problems, too. It can expose them to a heightened risk of being sexually assaulted or harassed by members of other institutions. If they choose to raise concerns, it can force them to navigate byzantine complaint processes in unfamiliar places.

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Naomi R. Shatz, a partner at the Zalkind, Duncan & Bernstein group who has worked on a number of Title IX cases at Boston area colleges, said inter-school sexual assault incidents are “very common.”

It’s no surprise that this would be the case — especially in the greater Boston area, which is home to several dozen universities and colleges.

A Harvard undergraduate who alleged she was assaulted by a student at a neighboring university and an undergraduate from a neighboring university allegedly assaulted by a Harvard student interviewed by The Crimson both said they faced both logistical and psychological hurdles while seeking restitution through Title IX offices.

These women represent just two examples of the many individuals caught between institutions as they pursue complaints of sexual misconduct. At Harvard alone, roughly 20 percent of Title IX complaints investigated by the University from 2015 to 2019 were filed by third parties, according to the University’s 2019 Office for Dispute Resolution Title IX Office report.

“Sexual violence isn’t contained within the boundaries of what we think of as campus,” said Priya P. Kukreja ’21, a member of the sexual assault advocacy group Our Harvard Can Do Better.

AN 'UNANTICIPATED' SCENARIO

Brenner Johnson said legislators did not substantively consider the potential for inter-institutional cases when they passed Title IX — a federal civil rights law that protects people from sex-based discrimination in education programs or activities that receive federal funding — as part of the Education Amendments of 1972.

“These cases bring up a lot of really unanticipated scenarios that schools are just really unequipped to deal with,” she said.

These kinds of inter-institutional situations are “the Achilles heel of Title IX,” said Heidi H. Lockwood, a professor at Southern Connecticut State University who advocates on behalf of women subject to sexual misconduct at universities.

Lockwood said this type of case came to the legal fore in 2014 after three Brown University football players allegedly assaulted a woman enrolled at Providence College, and she filed a complaint with Brown’s Title IX office.

After the Providence College student sued Brown for failing to give her a prompt investigation, a federal judge ruled in 2017 that students are not protected by Title IX at an institution with which they are not affiliated in the first place.

“The total absence of a relationship between Ms. Doe's educational institution (Providence College) and the harassers' school (Brown University) is dispositive on the issue of whether Ms. Doe has a Title IX claim against Brown in this case,” the judge wrote in his finding. “Therefore, the Court finds that Ms. Doe has not alleged that she was denied equal access to education as required for a Title IX claim to exist.”

This ruling has not affected Harvard’s approach, according to Harvard University Title IX Coordinator Nicole M. Merhill. She wrote in an email that Harvard’s Title IX Resource Coordinators and the University Title IX Office regularly receive disclosures from third parties, including affiliates of local colleges and universities.

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Title IX regulations are constantly in flux, especially with frequent lawsuits, new legal precedents, and changes in presidential administrations.

Under Trump-appointed U.S. Secretary of Education Betsy DeVos, who stepped down in early January, the Department of Education released new regulations governing campus sexual assault under Title IX in May 2020. The new rule, which significantly restricted schools’ jurisdiction over sexual assault cases, took effect in August. President Joe Biden’s policy director Stefanie G. Feldman told reporters in November the administration planned to return to Obama-era Title IX policies.

For a complaint to be addressed under DeVos’s guidelines, the alleged sexual misconduct must have taken place on-campus or — if off-campus — in the context of a school-sponsored activity, building, or event over which the institution has “substantial control.”

To cover the cases the new rule left out, Harvard introduced a supplemental “Interim Other Sexual Misconduct Policy,” which protects members of the University who suffer a “hostile environment” as a result of sexual misconduct — even if it did not occur on campus or in connection with University-recognized activities.

But even in cases when a university agrees to investigate a non-affiliate’s complaint against one of its members, the complainant must confront compounded obstacles inherent in navigating an unfamiliar institution, according to two students who spoke to The Crimson about their experiences.

“We’re talking about somebody who has experienced abuse and trauma, and making that student jump through all of these administrative hoops,” Brenner Johnson said.

FORTY MINUTES, FORTY DOLLARS

In the winter of 2019, a student at another Boston-area college — who was granted anonymity by The Crimson — decided to file a complaint against a Harvard student. She described an encounter from the previous fall, in which she alleged the Harvard student had raped her in his dorm. At the end of eight months, Harvard substantiated her complaint, she said, but not before an expensive, exhausting process.

She said she had to take several 40 minute, $40 Uber round-trips between her campus and Harvard for her Title IX interviews, paying out of pocket. Each time she arrived in Cambridge, she remembered feeling “terrified” of running into her assailant.

To her, Harvard’s campus was the place where she had been assaulted. To him, it was home.

Though Harvard offered her a phone interview, the student said she felt it was important that she speak to the investigative party in person in order to convey the emotional impact the incident had on her. She wondered why, given the proximity of her institution to Harvard’s campus, University investigators couldn’t offer to meet with her in a neutral location.

After numerous trips, the investigators from the Office for Dispute Resolution found her assailant culpable, and the case moved to Harvard’s Administrative Board to determine disciplinary action, she said. The University charges two different bodies with conducting its investigatory and disciplinary processes.

Harvard students have the option to be represented during the Ad Board process by their resident dean, a House administrator who supports undergraduates in all aspects of Harvard residential life and with whom they may already have a personal relationship.

The complainant, however, received an appointed representative — a Harvard administrator — whom she had never previously met. She said the designated representative was often slow to respond to her inquiries about the process, including the timeline and implications of various outcomes.

They sometimes took a week or several weeks to deliver an answer to procedural or technical questions, she said. Once they redirected her to another administrator who never responded, even after a number of follow-up emails.

Ideally, the woman said, the Ad Board could have permitted an administrator from her own school to represent her. At the very least, she added, the Harvard administrator could have set up an informal introductory meeting over the phone or Zoom.

The student said she felt that she would have received more consideration from administrators had she attended Harvard. The respondent automatically received accommodations during Harvard’s reading and exam periods due to the investigation; she had to proactively request that Harvard grant her similar extensions on her statements to ODR while she took tests.

Merhill, the University Title IX Coordinator, wrote in the email that Harvard makes an effort to help complainants from other institutions.

“In such instances, we engage with those individuals to explore available resources and options,” she wrote. “This may involve identifying the point of contact at the impacted individual’s school so they may access supportive measures there, including available mental health resources at their schools.”

A 'BLACK BOX'

That student’s situation can also happen in reverse, as Harvard affiliates venture beyond campus.

A Harvard undergraduate who filed a complaint with MIT in 2019 against one of its graduate students said she had a similarly intimidating experience as an “outsider” going through its Title IX process.

The undergraduate — who was granted anonymity by The Crimson — said she met the MIT student at an officially-recognized Harvard club that accepted non-Harvard College students as members. Between October and December 2017, she said, the man groomed her and coerced her into sexual activity on the MIT campus. In 2019, she encountered him again when she was an employee and he was a volunteer with the club.

The student — who said she experienced “intense anxiety” when she saw him — decided to file a Title IX complaint with Harvard that June, hoping to remove him from the summer program. Just after receiving her report, Harvard’s Title IX office instructed her to take her case to their counterparts at MIT since the MIT student was not a Harvard affiliate, she said. She filed with MIT the same day.

MIT’s Title IX office ultimately dismissed her complaint in September 2019, after the Harvard organization’s summer programming had already concluded, according to the student. In its response to the Harvard student, MIT wrote that its investigators found that her allegations against the MIT graduate student — even if true — would not constitute a violation of the institution’s Title IX policy, she said.

Beyond the outcome, the Harvard student said she felt her status as a non-MIT affiliate made the process especially difficult. If Harvard had investigated her case, she said she would have had friends who had gone through similar experiences with Harvard’s Title IX office and other on-campus advocates — like her resident dean.

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With MIT’s Title IX office — a “faceless kind of monolith” — serving as her single point of entry to the institution, the Harvard student said she felt like she didn’t have anybody “on [her] team.” She added that she felt like an “outsider” without the power or standing to request resources, more frequent communication, or more transparency — especially as she began to feel that the process dragged. Her case began to resemble a “black box,” she said.

She said she decided not to consult Harvard’s Office for Sexual Assault Prevention and Response for support because she wasn’t sure they would be privy to the specifics of her case, nor would they have extensive knowledge of MIT’s Title IX procedures.

Sarah Rankin, a director and Title IX coordinator for MIT’s Discrimination and Harassment Response Office, declined to comment on any individual cases. However, she wrote in an email that MIT takes all allegations of sexual misconduct implicating its affiliates “very seriously.”

When MIT receives a report, the Title IX coordinator or case manager will reach out to the complainant and offer to meet with them, regardless of whether they are an MIT affiliate.

“Our office’s practice is to give all parties comprehensive information about MIT’s policies and processes, including information about their right to have an advisor of their choice attend interviews and meetings with them,” she wrote. “We also encourage all parties to contact the Title IX Coordinator or Case Manager at any point in the process with questions, concerns, or requests for support.”

Still, the Harvard student said that not being an MIT student led to the intimidating experience that she was “fighting the whole institution, rather than one person.”

'RADICAL RETHINKING'

For the students, seeking restitution at an unfamiliar institution made an already harrowing process even more logistically and psychologically burdensome.

Those problems could improve, though, Brenner Johnson said. She suggested that an “impartial entity” could investigate inter-institutional Title IX cases to erase the damaging dichotomy between outsiders and insiders.

Lockwood said universities must think in a “holistic way” about what is required to create a safe campus climate and culture for students.

“There's a difference between legal and ethical obligations,” Lockwood said. “Setting aside the law, the spirit of Title IX is not compatible with drawing a bright line between insiders and outsiders.”

Short of such a “radical rethinking,” however, Brenner Johnson said that there are a number of steps institutions can take to better serve third-party complainants.

She noted, for example, that there could be a provision in the Title IX supporting guidelines that encourages greater cooperation and information sharing between institutions. Such channels of streamlined communication could spare students from having to repeatedly relay their experiences in order to request mental health care, academic accommodations, or other support.

Brenner Johnson suggested that it’s possible there are more inter-institutional sexual assault incidents that go unreported because students are intimated by the prospect of interfacing with an institution that is not their own.

“I mean, think about it, if you go to visit a friend’s campus for the weekend, and you are sexually assaulted on that campus, it may not even occur to you that you could take advantage of that institution’s Title IX policies,” she said. “And then, of course, if you run into some of these brick walls we’ve been talking about, I think — for many people — it just sends them back into their lives to cope with this however they can.”

—News Comp Director Juliet E. Isselbacher can be reached at juliet.isselbacher@thecrimson.com. Follow her on Twitter @julietissel.

—President Amanda Y. Su can be reached at amanda.su@thecrimson.com. Follow her on Twitter @amandaysu.

Editor’s Note: Amanda Y. Su currently serves as the President of The Crimson’s 148th Guard. Juliet E. Isselbacher currently serves as a News Comp Director of The Crimson’s 148th Guard. While The Crimson does not typically publish news content authored by current leadership, Su and Isselbacher primarily reported this article during their time as staff writers.

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