Lit Thursday: How Title IX Came to Protect Survivors of Sexual Assault


Title IX, the statute that tells today’s universities to protect students from sexual assault at college, didn’t begin with this intention. It was originally a response not to sexual assault but to sexism within academia. In 1969, Bernice “Bunny” Sandler, a mother of two finishing the University of Maryland’s doctoral program in educational counseling. Sandler worked hard and was well liked in the department, but she was rebuffed when she tried to secure a faculty appointment. “Let’s face it,” a faculty member told her, “you come on too strong for a woman.”

At the time, Title VII of the Civil Rights Act prohibited employment discrimination based on gender and other categories. Working in conjunction with activist attorneys, Sandler crusaded for a new law. She filed complaints against over two hundred and fifty colleges and universities, claiming that they were violating an executive order that prohibited federal contractors from discriminating on the basis of gender, then mailed copies to Congress. One of those letters landed in the hands of Edith Green, a congresswoman from Oregon, who introduced the legislation that eventually became Title IX, slipped into the Education Amendments of 1972 as a forgettable footnote. She even discouraged Sandler from lobbying for the bill, declaring the less attention it got, the better.

President Richard Nixon didn’t want to support Title IX, but he planned to sign the statute in which it was included, one that postponed court orders to integrate racially segregated schools by busing. It’s short: “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.” Few back then imagined its ultimate reach and transformative power. Over time, it would not only protect equal rights for women in sports but act as a shield against sexual harassment and assault. I’m going to note some important moments in its evolution here.

Here’s an early one: 1976 at Yale University, an institution that would become a perennial proving ground for the statute’s reach. Yale’s women’s crew team lacked bunkhouse showers and rowed dilapidated shells while the men’s team had better facilities and flew by in better boats. Staging a dramatic piece of protest theater, the women’s team stormed the office of Yale’s director of Physical Education. There, some doffed their sweats. “These are the bodies Yale is exploiting,” they said. “We are not just healthy young things in blue and white uniforms who perform feats of strength for Yale in the nice spring weather; we are not just statistics on your win column. We’re human and being treated as less than such.” And in black marker on their naked backs, they wrote the symbol of the equal treatment they were legally guaranteed as Yale students: IX.

A year later, another university insider sought a more radical application of the statute. At the time, Catharine MacKinnon was a newly minted Yale Law graduate, not yet a prominent feminist legal scholar. An electric speaker, MacKinnon was part of late-stage second-wave feminism, and some of her ideas departed from the movement’s mainstream. She not only changed Americans’ understanding of sexual harassment but argued forcefully against pornography. MacKinnon worked with *Deep Throat* star Linda Lovelace (who spoke out against the film years after release, saying “virtually every time someone watches that movie, they are watching me being raped”), and co-drafted a Minneapolis ordinance that would have allowed women to sue pornographers on the basis of a direct link between husbands’ domestic abuse and their porn usage. When Betty Friedan and fifty feminists successfully argued that this would “reinforce rather than undercut the central sexist stereotypes in our society,” she shot back that they were “fronting for male supremacists.”

MacKinnon was similarly blunt about rape. She said that in a gender-imbalanced society, rape was regulated rather than impermissible. “Hostility and contempt, or arousal of master to slave, together with awe and vulnerability, or arousal of slave to master — these are the emotions of this sexuality’s excitement,” she wrote. “Pressure, gender socialization, withholding benefits, extending indulgences, the how-to books, the sex therapy are the soft end; the fuck, the fist, the street, the chains, the poverty are the hard end.”

MacKinnon was the attorney on an important 1977 Title IX case, involving undergraduates at Yale, *Alexander v. Yale.* The argument arose from a report students had compiled about the status of women on campus a decade after coeducation hit, and it included damning accusations of Yale professors sexually harassing students, fondling and even raping them. “If the student actually worked up the courage to tell her residential college dean or master, the usual reaction was to express sympathy, but to advise her that this was ‘all part of life,'” student Ann Olivarius explained. Taking their story to the media, she claimed Yale played hardball. She said administrators threatened to arrest her for libel (not that anyone can be arrested for libel) plus gossiped to a *Time* magazine reporter that she “was flunking out (I graduated summa cum laude, a soon-to-be Rhodes Scholar), and was a lesbian (I’m glad for people who are, but I’m not).”

As a law student, MacKinnon had written a paper that recast superiors who offered workplace subordinates sexual quid pro quos as sexual harassers. Now she and the plaintiffs argued that sexual harassment in universities was a violation of Title IX. A judge dismissed the specific charges as “tenuous” and decided that the plaintiff, having graduated, didn’t have standing, but he seemed to support the broader argument. This was a major moment in the statute’s evolution. And in 1980, courts decided that a professor’s offer of a sexual quid pro quo to a specific student was considered a violation of *all* female students’ rights to an equal education free from discrimination, even if what that meant in practice was left unclear.

In the late 1980s and early 1990s, during the original P.C. era, there wasn’t a lot of talk about Title IX outside the courts and rarefied academic circles — even as date rape briefly rose to the level of a national issue. Then it quickly fell back to earth. In 1993, a *Saturday Night Live* skit summarized the feeling about it at the time, which was that it was preposterous. The sketch made fun of Ohio’s Antioch University’s affirmative-consent policy (a policy similar to the one at many American universities today). They used a *Jeopardy!* -like game show called *Is It Date Rape?* to accomplish this, with the categories “Halter Top,” “She Was Drunk,” “I Was Drunk,” “Kegger,” “Off-Campus Kegger,” “She Led Me On,” “I Paid for Dinner,” and “Ragin’ Kegger.” The host, a “dean of intergender relations,” asks the contestants — Chris Farley playing a clueless male student, and Shannen Doherty as a too-clued in “major in Victimization Studies” — to put labels on answers such as “The last day of school, a female student asks a male student to move her futon.” “Date rape!” yells Doherty. The dean then calls on Mike Myers and other “Antioch date-rape players” to dramatize consent-worthy encounters: “May I elevate the level of sexual intimacy by feeling your buttocks?”

> For the first time in history, the American government called sexual assault a civil rights issue.

The same year as the *SNL* skit, author Katie Roiphe, a young Harvard graduate, made a large splash with *The Morning* *After,* a damning manifesto about her classmates in which she argued that sex that didn’t involve physical force was, ipso facto, not rape. “Allowing verbal coercion to constitute rape is a sign of tolerance toward the ultra feminine stance of passivity,” she wrote. “Imagine men sitting around in a circle talking about how she called him impotent and how she manipulated him into sex, how violated and dirty he felt afterward, how coercive she was, how she got him drunk first, how he hated his body and he couldn’t eat for three weeks afterward. Imagine him calling this rape.”

Roiphe became a target of feminist attacks but over time her view became one pole in a frozen, static debate. On the surface, the issue barely budged over a generation. But there was movement beneath.

Incremental change led the Supreme Court to take a case about student-on-student harassment in 1999. A fifth-grader in Monroe County, Georgia, had attempted to touch the private parts of a fellow student and made comments like “I want to feel your boobs” and “I want to get in bed with you” for several months, without the school intervening. The Court broke 5 to 4 in its decision for the student (Justice Sandra Day O’Connor was the deciding vote between liberals for and conservatives against). Student on-student abuse was now a violation of Title IX, putting schools on the hook for curbing it.

In the law, sexual assault fell under the umbrella of sexual harassment, which might appear to minimize it, but a specific logic was at work. “Title IX is about contact, targeted at somebody because of gender, that is unwelcome, and severe and pervasive enough that it becomes a condition of one’s school life — the same way it would be in a place of employment,” explains Christina Brandt-Young, a former senior staff attorney at Legal Momentum, the oldest legal advocacy group for women in the United States. Harassment requires repeated incidences. “An offhand comment doesn’t change conditions of employment. But if somebody had to go to his workplace and there was a burning cross on the desk, and a noose, and people using the N-word all over the place, that’s objectively severe, and would change the conditions of employment for black people working there.” Assault doesn’t require more than one incident. “Sexual assault is really darn severe, so it only has to happen once to be considered sexual harassment.”

Though universities now bore responsibility for policing assault, some took defensive postures: encouraging survivors not to report the crime, arguing it would exacerbate their trauma; and filing forms and convening hearings in superficial compliance while failing to address the pressing needs of counseling, treatment, and relocating offenders from dorms and classrooms. Many times, victims weren’t even told of the outcome of the complaints they’d brought.

There’s also reason to believe that some schools dissuaded survivors from reaching out to law enforcement. The 1990 Clery Act, named after Jeanne Clery, a Lehigh University student who was raped and murdered in her dorm room, requires colleges to keep a daily log of crimes, notify students of crimes in a timely manner, and publish an easy-to-find report each year. But publicizing these statistics runs in direct opposition to a university’s interest in luring prospective students, and some universities may have fudged numbers over the course of many years.

When President Obama took office in 2008, the tone and terminology surrounding the issue of campus sexual assault differed from what it had been in the 1990s. “There’s a reason the story of the civil rights movement was written in our schools,” Obama said at an NAACP Centennial Convention. “It’s because there is no stronger weapon against inequality and no better path to opportunity than an education that can unlock a child’s God-given potential.”

For Obama, the father of two teenage girls, combating sexual violence in schools was a priority, and he also had a deep interest in challenging gender stereotypes. “When you’re the father of two daughters, you become even more aware of how gender stereotypes pervade our society,” he wrote in *Glamour* magazine. “You see the subtle and not-so-subtle social cues transmitted through culture. You feel the enormous pressure girls are under to look and behave and even think a certain way.” This wasn’t mere paternalism.

Obama felt the negative effects of gender stereotypes when he grew up without a dad around. “It’s easy to absorb all kinds of messages from society about masculinity and come to believe there’s a right way and a wrong man to be a man,” he wrote. “But as I got older, I realized that my ideas about being a tough guy or cool guy just weren’t me . . . Life became a lot easier when I simply started being myself.” In the same essay, he called himself a feminist, the first sitting president to do so.

Radical legal thinkers like MacKinnon and the Yale plaintiffs had changed the course of Title IX; Obama, a Harvard-trained attorney cut from progressive cloth, knew that it could be pushed even further. Prior to Obama’s election, Title IX’s chief enforcer, the Department of Education’s Office for Civil Rights (OCR), was a backwater. Clarence Thomas ran it in the 1980s, assisted by young attorney Anita Hill, who would famously raise charges against him when he was nominated for the Supreme Court. Its attempts to correct inequality were less than vigorous.

Obama emboldened the OCR. He linked college sexual assault to education’s overt and subtle forms of discrimination. “If we could get this right . . . then so many of the ‘isms’ that we face as adults would go away,” emphasized Russlynn Ali, his OCR assistant secretary. In April 2011, his administration released the era’s seminal text on college sexual violence. This Dear Colleague letter — government correspondence that functions like a position paper — didn’t have the force of law. But these were strong recommendations with respect to guidelines and responsibilities that most universities hoped they didn’t have. And for the first time in history, the American government called sexual assault a civil rights issue.

*Excerpted from* (1) *by Vanessa Grigoriadis. Copyright © 2017 by Vanessa Grigoriadis. Reprinted by permission of Houghton Mifflin Harcourt Publishing Company. All rights reserved.*

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