Urging the Biden Administration to Change Rules for Colleges on Responding to Sexual Assault

Senior Research Scientist Linda M. Williams, Ph.D., read an excerpt of the following testimony at a public hearing on Title IX held by the U.S. Department of Education's Office for Civil Rights on June 11, 2021.

The hearing invited comments on the Biden administration’s decision to rewrite the Title IX campus sexual misconduct rule finalized under the Trump administration. Williams testified that those amending Title IX policies must consider rigorous, peer-reviewed research to ensure that women are given equal access to education and cited federally funded studies including her study of college responses to sexual assault on campus recently completed with colleagues April Pattavina, Ph.D., Alison Cares, Ph.D., Nan Stein, Ed.D., and Mary Frederick.

It is critically important for the Biden administration to change the Title IX rules promulgated by the prior administration not only to assure women’s equal access to education, but also to contribute to a change in the culture that, currently, at best minimizes and at worst encourages sexual violence, physical abuse, and sexual harassment of women and girls. President Biden knows these issues well and it is on us to foster governmental and community efforts designed to end violence against women and to take decisive action to hold perpetrators accountable.

The new Title IX rules set into place during the previous administration removed longstanding protections to survivors, access to support measures and accommodations, and requirements that schools respond to all violence that creates a hostile environment, whether it occurs on campus or off. While I applaud the inclusion of dating violence, domestic violence, stalking, and sexual assault, I wish to express my strong opposition to the inclusion of the language that sexual harassment involves “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

New guidance should reaffirm that Title IX offers a wide range of supportive measures and remedies that schools must provide survivors, including robust protections against retaliation, and that ensure complainants and respondents have equal procedural rights in school investigations and disciplinary proceedings addressing harassment.

The new regulations were misguided in the requirement that colleges hold live disciplinary hearings during which those who have been sexually assaulted and those accused of assaulting them present live testimony and can be cross-examined. That is not good for students and is likely to create a more litigious and adversarial process. Such a process would create an opportunity for more personal attacks than are present even in the criminal justice system, while pushing colleges to behave like that system.

Requirements for colleges to adopt criminal justice-like procedures will have a chilling effect on reporting and help-seeking.

Indeed, the criminal legal system is rarely effective in achieving justice for victims of sexual assault. I have studied this issue extensively and am familiar with the many obstacles that victims face: Most do not report sexual assault to authorities to begin with, and those who do face a secondary victimization as they must recount their experience repeatedly to police, prosecutors, and other court officials. Challenges to victim credibility come on many fronts and many complaints are discounted or the cases are dropped before adjudication.

Requirements for colleges to adopt criminal justice-like procedures will have a chilling effect on reporting and help-seeking. Few complaints will move forward, and the safety of students and their access to an education will be further jeopardized. A criminal justice model also does not make sense for colleges, whose mission is to educate, not adjudicate. Their goal is to foster norms against sexual violence and harassment, but they will end up being complicit in the re-victimization of those who report.

Our research team has examined the policies and processes that colleges and universities use to address sexual assault complaints. Along with colleagues and funded by the National Institute of Justice, U.S. Department of Justice, I recently completed a project on Responding to Sexual Assault on Campus. In the course of our research on 969 colleges across the US, we spoke to dozens of Title IX coordinators, many of whom felt strongly that the way they handle sexual assault cases—including sanctioning—should be in part an educational process, in keeping with the mission of their institution to educate. Addressing complaints by holding hearings and cross-examinations does not fit with that mission, and it is also inconsistent with how colleges handle other violations of student conduct codes.

The Title IX coordinators faced countless challenges. The greatest challenge for many was building capacity to respond to reports of sexual assault. They voiced a critical need for more well-trained investigators, strong institutional support, and visibility, including adequate funding, staffing, and training.

Existing research is clear. We know that one in three women experience sexual assault in their lifetimes, and such assaults begin for some even before they enter preschool. We have convincing evidence that one in five women has been sexually assaulted while in college and that college-aged women are at high risk for sexual harassment and abuse. And we know that the repercussions of these assaults on the individual women can be lifelong and place financial burdens on our economy and health care system. We also understand that perpetrators who are not held accountable are more likely to sexually assault again and that ignoring the problem of sexual assault contributes to a culture of abuse. We know all this because of decades of high-quality research, including much sponsored by the federal government.

Educational institutions must be held responsible for ensuring safe campuses that are conducive to learning and thriving for all their members, and most institutions take this responsibility very seriously. Decisions to amend these policies must consider rigorous, peer-reviewed research to ensure that women are given equal access to education.

Senior Research Scientist Linda M. Williams, Ph.D., directs the Justice and Gender Based Violence Research Initiative at the Wellesley Centers for Women.