On our Pod Save Education podcast, three classmates and I discuss educational issues that were and continue to be significantly impacted by the 2016 presidential election. Here, I host an episode on changing Title IX guidelines that affect how colleges handle sexual assault allegations. Joining us for this episode is Kim Janecek, education curriculum manager at Nashville’s Sexual Assault Center. Kim answers our questions about what is expected from the Title IX changes, how SAC works with local college faculty and students to improve outcomes for survivors, and what effective curriculum addressing sexual assault looks like at all levels of schooling.

 

Use the media player above, or listen here: Title IX Changes and Campus Sexual Assault. The transcript is included below.

Other episodes of Pod Save Education:

Rural Education in Trump’s America

The Trump Effect: The Current State of School Climate

Trump’s Choice: Charter Reform

 

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Donald Trump: Every American child should be able to grow up in a safe community, to attend a great school, and to have access to a high-paying job.

T: Welcome to Pod Save Education. I’m Taylor—

M: —I’m Margaux—

H: —I’m Hannah—

J: —and I’m Jenna. Each episode, we’ll consider the state of education in Trump’s America.

H: We’re diving deep into our nation’s political and cultural landscape, and examining how the election of 2016 continues to shape key issues in the field of education.

M: Together, we’ll look at the evolving educational issues of teacher diversity, rural education, campus sexual assault, and school climate.

T: We hope that our discussions spark further conversations on some salient issues regarding education in the current administration, and we’re glad you’re here.

* * * *

M: I’m Margaux, and on this episode of Pod Save Education, we’re going to be discussing some recent as well as some upcoming changes in Title IX regulations that affect how colleges and universities handle campus sexual assault allegations. Joining us for this episode is Kim Janecek, education curriculum manager at Nashville’s Sexual Assault Center, so thank you so much for joining our conversation today, Kim.

KJ: Thank you for having me.

M: So as anyone who’s seen an episode of SVU knows, sexual misconduct and assault cases are treated really uniquely in our criminal justice system. If you imagine a case of theft or physical assault, something like that, it’s usually fairly easy to just establish that even just an incident occurred. But in sexual assault allegations, the burden of proof typically rests pretty heavily on the victim. This can become what we often refer to as a “he said, she said” situation, where it’s really just the differences between two stories that indicate that something even occurred.

As a response to what is being referred to as an epidemic of sexual assault on college campuses and also in an effort to better support victims of sexual assault, in 2011 the Obama administration sent a Dear Colleague letter to colleges that outlined a specific procedure for adhering to Title IX requirements. So for some quick background, these Title IX requirements date back to various Supreme Court decisions made in the 1990s, and colleges failing to meet Title IX requirements can lose federal funding.

So going back to this letter—the most controversial requirement of this 2011 letter was that it advised colleges to use the “preponderance of evidence” standard in evaluating sexual assault cases. For people like me that don’t have a legal background—I actually didn’t know what preponderance of evidence really meant, it’s not a familiar term to me— Basically it means that if over 50% of the evidence points to an incident having occurred—literally if it is “more likely than not” that something happened—then the college can conclude that an incident actually did take place. In the case of sexual assault or misconduct, this would mean siding with the victim. This is very different from what we’ve all heard, the “beyond reasonable doubt” that we hear about a lot in criminal court cases. Preponderance of evidence basically lessens some of the burden of proof from the victim who is alleging assault.

So, as I said, this caused and has continued to cause a lot of controversy. Opponents maintained that these regulations constituted federal overreach and led campuses to implement so-called “kangaroo courts” that basically violated an accused student’s right to a presumption of innocence; and since these campus proceedings can result and sometimes do result in student expulsion, they really harmed students that may have been wrongfully accused.

Supporters, on the other hand, say that preponderance of evidence makes sense since colleges aren’t officially part of the legal system—they’re not sending students to jail—they’re just determining whether or not a school policy has been violated, part of the school’s code of conduct. So in that sense, using a more rigorous burden of proof places too much burden on the victim and will ultimately lead to fewer students reporting sexual assault or misconduct to the college campus.

In September 2017, our current Education Secretary Betsy DeVos declared her intent to roll back these 2011 guidelines, and a couple of weeks later, the Department of Education released an interim Q&A to campuses as temporary guidance while new regulations are drafted. These new regulations are expected within the next year to year and a half.

The interim Q&A gives campuses the option to choose between the preponderance of the evidence standard and “clear and convincing” standard for cases of sexual misconduct and assault, as long as the standard used matches what is used for other student violations of the college’s code of conduct. This is a little bit confusing, so I’m going to walk through this a bit.

Clear and convincing is sort of a medium-level of burden of proof: it’s more rigorous than the preponderance of evidence but it’s less rigorous than beyond a reasonable doubt. I happen to know that my undergraduate alma mater, for example, currently uses preponderance of evidence for all violations of the code of conduct, so these new guidelines aren’t going to change their current process. They can still use preponderance of evidence since it matches what they use for all other violations. But some people suspect that these interim guidelines are kind of a transition period, and the upcoming new guidelines will actually require campuses to use the clear and convincing standard for Title IX cases.

So I want to stop there for now and hear a little bit from Kim, who’s again is joining us from Nashville’s Sexual Assault Center. Kim, can you tell us a little bit about your experience working with sexual assault allegations or cases? What’s unique about the way colleges handle them?

KJ: While I can’t speak about cases themselves—

M: Absolutely.

KJ: I can say that it seems like most colleges are trying to a better job of responding to sexual abuse when they have claims made on their campus. We’ve seen this because we work with a lot of the colleges here in middle Tennessee, and we do that in three different ways. We have a round table, usually quarterly, where we have Title IX coordinators, counselors, law enforcement on campus—anyone who is there when those claims are made—they can come to our center and be part of our round table, and we talk to them about what they see on campus and how they respond to that, and how we can help them.

Then we also have a person who goes out to college campuses, and she talks with fraternities, sororities, athletes, any groups that we can get into, and we talk about bystander intervention and what does that look like, to be an active bystander, what consent is, and making sure everyone understands consent. We talk about alcohol when it comes to consent, because that usually plays a huge factor in a lot of these cases. We also talk about just what sexual assault is in general, because sometimes students don’t understand the difference between even flirting and harassment and those types of things. So we go to the schools and actually do these types of trainings.

Then from there, we even have something a little bit deeper, peer education groups, where we have students come to our center. They’re part of this program, and so they can help develop campaigns for their campus so it’s more equipped with being able to handle these types of claims when they’re made.

And then most recently, over the last few months, we’ve hired a statewide training specialist who works with the professionals on the campus about responding in a trauma-informed way, and letting them know how sexual assault can affect a victim, and what does that look like in that way.

So over the last few years, we’ve seen—especially after this Dear Colleague letter came out from the Obama administration—we’ve seen campuses really want to step up their game and think about how they can respond a little bit better to allegations, for the victim, and that way no one feels like they’re being revictimized over and over again.

M: So something that I’ve heard, and I think gets at the center of these changing guidelines, is a lot of conversation of what role colleges really have even in doing this. They’re not part of law enforcement, they’re not part of our legal system. Shy might a student who’s experiencing this, who wants to make an allegation, go to their campus as opposed to law enforcement? Is there a reason for that separation?

KJ: When a person is sexually assaulted, it is a very traumatic experience, and so having to tell their story over and over again can really retraumatize them. But we want to make sure that they’re getting the help that they need, and so by being able to those on campus and let them know “This has happened to me,” and letting them be able to respond in a non-legal way, where they can either separate that person from classes— Because sexual assault on a campus is really more difficult than even just a general sexual assault, because it’s usually more than likely someone that they know, someone that they’re going to see in their dorms every day, see in the dining hall, see in classes, those types of things. So being able to let them at that campus level separate those students lets that victim have that choice, whether or not they want to respond to law enforcement or if they want to report to law enforcement.

While I agree, and I think that law enforcement usually is the best way because they can do a deeper investigation, we want to make sure our survivors have that choice whether or not they want to go through that whole legal prosecution aspect of the sexual assault, because that can be retraumatizing over and over. So letting them be separate gives that survivor a choice on how they want to handle what happened to them.

T: Can I ask how the preponderance of evidence method might help with— well, not prosecuting— but with dealing with sexual assault victims and their rights on campus, versus this change—this Dear Colleague change and maybe proposed mandated changes? Why might that be more beneficial for victims?

KJ: Sexual assault is one of the hardest allegations to actually prove that it happened, because a lot of it comes down to that “he said, she said,” because it happens a lot of times behind closed doors or in places where not a lot of other people are around to see that it happened, and there’s usually not a lot of evidence if it’s not collected within just a couple of days after the incident occurred. The preponderance of evidence piece makes it a little bit easier for the campus and for that survivor to be like, “This actually happened to me, because of all of these pieces over here that are coming together.” That helps the campus go “You know what? Then maybe we need to do something about that and separate you guys, and even if you don’t want to take that legal action, we can still do something here on our campus,” whether that is something as simple as they’re separated from dorms or classes or different sides of the campus, to something extreme like expulsion if it comes down to that. So it just makes it easier for that survivor to say “This happened to me,” and prove that on her side or his side.

H: I have a question. It’s a little bit— it’s not in response to what you had been mentioning, Taylor— but I know that when I was in my undergraduate institution, we had a student-run college disciplinary board that included reviewing cases of sexual assault as students. It has since changed and moved over to having a sexual assault response team getting to review those cases. But I was wondering if that still exists really, in schools where students are making those decisions, and what we’re doing in order to train those students make those decisions, and if this is at all impacted by that?

KJ: There are a few places still using mostly student-ran boards where they look at these types of cases, but most of them are moving to a sexual assault response team aspect. And that may include counselors on the campus, it may include administration, law enforcement on the campus, but it also may include some of the students, because they want to have some of that buy-in as well. And so that’s when you have people such as the Sexual Assault Center or those other experts in the field— I mentioned we have our person who goes in and trains how to respond in a trauma-informed way to a survivor. And so she may be the type that would go in there and train that group of people to say “This is what sexual assault is, this is the impact that it can have when you’re looking at these cases, these claims when they come in, here’s some things to be looking for.” So then that may help when they decide how they’re going to handle this in the future or what they’re going to do to that student.

J: To follow up there— you talked about bringing in a trainer. Is that on the responsibility of a college to reach out to someone, to an organization, to come in to help their team to respond?

KJ: Yes, in some ways. Most schools now—all of them should, but I don’t want to say all—should have a Title IX person who is over making sure that everyone is trained appropriately, everyone has the information that they need in order to respond appropriately. So it does fall on the school to make sure that they are in their onboarding process giving everyone in their building the tools that they need. While we still go out—and we try to reach out and make connections and those types of things—it still kind of falls back more on the campus, just to make sure that there’s a good onboarding process in place giving them the information that they need.

M: And I believe that having that Title IX person on campus was part of the 2011 Dear Colleague letter.

J: Okay.

M: So, with these new— with this interim Q&A and obviously we still don’t know what these new regulations will be, but if we can kind of see this interim Q&A and some statements from Secretary DeVos as an indication of what’s to come— how do you see this process potentially changing as we move forward?

KJ: I think it’s going to make it a little more difficult for survivors to be able to prove what’s happened to them. I mentioned that sexual assault is one of the hardest allegations to be able to claim that it actually happened. You don’t get to walk around and say “This happened to me” and it’s stamped on your forehead; when you have a burglary or someone breaks into your car, you have that evidence of “This is what’s happened.” But with sexual assault, it’s a little bit more difficult. And so I think that by taking away that preponderance of evidence and giving campuses a choice of how they want to handle it, it’s going to make it a little bit more difficult for their survivor be able to say “This happened to me” and have the campus side with them.

M: Right now, as campuses can choose what fits with how they currently treat student violations—I mentioned my alma mater currently uses preponderance of evidence—is that pretty standard, or do you really see kind of a mix depending on the college of how they handle, just generally, student violations of their code of conduct?

KJ: Most of the time right now, not much has changed. Most of them are kind of sticking with what they’ve been doing over the last few years, because they’ve—especially the ones that we’ve worked with here, locally—they aren’t changing a whole lot, because they say “We have this person who’s come, said they’ve been sexually assaulted by another student, and we’re going to look at that and gather the evidence and take that from there.” And so they haven’t really changed their policies as far as what they’ve been doing, is what it seems to us right now. But this did just come out two months ago, so who knows what those change may be even over the course of the next few months, if some of this may change or if the Title IX coordinators or others on campus get different information, they may change their mind and go to a “We’ll do this this time and this this time,” back and forth kind of method. So I’m not really sure but I’m hoping most of them will stay with what they’re currently doing.

M: I don’t have a background in legal matters—none of us do. So one thing that kind of surprised me, or maybe was a little bit confusing as I was looking into this more, was these terms. I feel like all that I had really heard was “beyond a reasonable doubt” that you see on TV and criminal court all the time. And looking for these definitions of the difference between preponderance of evidence and clear and convincing, it seems very fluid. For a college that may need to make a change, what does that really mean? Like, “we’re switching from preponderance of evidence to clear and convincing”—are they tallying up these bits of evidence to make sure they get over half, or up to 75 percent, or… What does that look like? Or is there no clear answer?

KJ: Yeah, there’s no clear answer—I’m like, that’s really hard to speak to… I think they are just going to take as much evidence as they possibly can and look at that, and I don’t think they’ll tally up and say “Oh, this is 51 percent!” or anything like that. But I think they’ll try to take it and use as much as they can and see as much as they can and be able to help that survivor in whatever ways they can. Even if it means that they can’t necessarily do something to that student that is the accused student because maybe they don’t have enough evidence, they can help the other survivor or the one who was making the claim of the sexual assault— because most of the colleges have some type of counseling service on campus, they have different outreaches for those survivors. So I think that they’ll be able to still help in some way, but there’s really not a good clear answer on what that is going to look like.

H: You mention the counseling services and providing those things, but if the college legal system is essentially siding on the other side— Just in my experience, in undergrad, it happened to us! And it sends a huge message to the campus, but at the same time you’re trying to uphold those standards, but then— How do you still turn and say, “Sorry we couldn’t really figure this out, but here are all these services,” and then still mentally deny that that actually happened?

KJ: It’s one of those really difficult things to answer, because I think that college really wants to be able to side on that survivor and help them out, but sometimes because of lack of evidence or other reasons, they may not be able to come down on that person who is the accused. So just trying to figure out the best way to try to balance both is sometimes really difficult and may not be what they necessarily want to do, but they may feel like their hands are tied, and so therefore that’s what they’re stuck with, with having to do. So just trying to continue to support that survivor in whatever way they can, but say “I hate that this has happened to you and we want to be able to change this for the future, but here’s what we can do for you right now in the present moment.” But hopefully we won’t get back to that aspect of it.

M: Following up a bit on that, and kind of leaning into really more difficult aspects on this— Also this September, actually right before DeVos first talked about rolling back the Title IX guidelines, The Atlantic published a series of investigative articles on sexual assault on college campuses that argued, among other points, that black men are disproportionately affected by punitive measures that do end up resulting from colleges handling sexual assault.

What stood out to me is that the Office of Civil Rights doesn’t actually require colleges to report the race of either the accused student or their accuser, so we don’t really have reliable data, or really any data, to support this. But it would certainly be in line with what we know about broader trends in both school discipline policies and the criminal justice, the corrections systems, and also especially it aligns with this pervasive, really poisonous cultural myth of specifically white women being victims of black male sexual violence.

So, I guess I have a lot of my own thoughts of what the motivations are behind this change from DeVos, but with the end goal obviously of trying to make this the most just system that it can… How can we see this balancing out? Where do we go from here?

T: Like, yes, this one positive thing might come out of this proposed change, but on a whole it’s going to cause much more damage than it is good. Would you agree?

KJ: When you’re in a position like DeVos, you see it only one way, but then when you’re actually down in the weeds— she’s not knowing exactly what’s going on down in those weeds, like maybe some people who are at the college level, or even students, or those working in this field. She, or those other people who may not be down in those weeds, see it in a totally different way, and so while their intentions may be good, or what they think are good, it may not be good for the overall whole. And so that’s really hard to navigate that, and so it really needs to come together from the top and from the bottom, and come together and say “This is what we’re seeing here, and this is what we’re seeing over on this side. Let’s come together. How can we best support everyone, instead of just one side or the other?”

M: And I should say, I don’t actually think that these regulations will result in a more just or a more fair system, with these racial prejudices that may be emerging. Based on what DeVos has said and other members of the Department of Education, it seems fairly clear that there’s a lot of distrust of victims that I feel like are really behind this, but I guess my question is if we can assume siding with the victims itself may also introduce this racially unjust practice… How can we come together? Setting aside the fact that that’s probably not what’s going on right now, but what is a way that that could potentially be worked towards?

T: Part of it’s like what you said, it would be interesting if colleges could report that. That might get into some legal privacy territory, but… I think maybe if it was reported and we realized that actually, yeah, there is this disproportionate impact on black males, then maybe that’s when you say “Okay, let’s take some steps to see how we could fix this.”

M: I was so surprised it wasn’t! Like, we have to report everything! You collect data on everything, and this— Colleges report the races of their students, their incoming classes. This segment, they just don’t collect.

H: Do they have more data on anything else, other than just their gender and their age?

M: What I read is that colleges are not required to report their race, which I took as seeming that maybe some colleges do and some colleges don’t, but whether they do or not is not reliable.

T: Is that your experience?

KJ: Yeah, sometimes they’ll say “This is the person that was the accused, and here’s all their information,” while other places are just, like, this is very little info about this. I think sometimes it also depends on what they’re going to do with that person, whether that survivor wants to even press charges. I think that plays some into that as well. But really, there’s not a requirement saying “This is everything that we need.” When DeVos put out her statement a couple months ago, she had mentioned that she wants to try to collect information from other people and get some input before they put anything out, but I think this would be one way where we could say “Maybe this is some of the input that you need, maybe this is some of the information that you need to make a good informed decision.” Now, whether or not that really happens, we don’t know, but she had mentioned that that’s what she would like to do, but we’ll have to wait and see what the future holds.

H: Are there some model universities or colleges that you would look to to say “They’re doing it really well,” and will remain steadfast through these changes, but we should look to as models?

KJ: We work with several schools here in middle Tennessee locally. Vanderbilt’s always been one that comes to the table, and they are really instrumental in saying “This is what we would like to see with the reporting, this is how we would like to respond.” So they’ve always been really good at being part of that conversation, as well as TSU and Austin Peay up in Clarksville. They’re really heavily on board with making sure that as many people are trained to understand about that bystander intervention, how to be an active bystander, even understanding what consent is. They’re all really instrumental in having their freshmen come through and getting these types of trainings.

And so I don’t see any of them really changing their policies, because they’ve been really involved over the last couple years with us, going through our round tables and getting that information and having us come and disperse it to as many students and faculty as possible.

T: That’s great.

M: Thinking back to how to create a more just system, it certainly, I think, starts with just creating a more informed—culturally and racially, gender-wise, competent student body and faculty.

KJ: Definitely knowledge is key. I work a lot as well with elementary, middle, and high schoolers and trying to get this info to them. We want them to have those skills and the tools to be able to speak up if something happens, but even to know who to go to and how that works, even if it’s not them involved in the sexual abuse, but a friend… Because kids don’t want to talk to adults a whole lot, so they may tell a friend. So having that other person know who to go to and say “Hey, this is happening—what do we do?” is key. It happens across all age levels.

J: Do you have any suggestions of resources for people who are interested in this topic and all the changes that are going on? I know you’re at the Sexual Assault Center here in Nashville, but is there anything else you would suggest to people to learn more?

KJ: The National Sexual Violence Resource Center has a ton of great resources. That’s who we look to and kind of model after. RAINN also has a lot of good information, as well as PCAR, the Pennsylvania Coalition Against Rape. They have a lot of good information and resources as well. CALCASA and the NSVRC put together a conference each year, and so we attend and get a lot of information from there. In the last couple years, a lot of that conference, the topics at the conference, has geared around sexual assault on campuses and even prevention techniques for middle school and high schoolers, so when they go to the college campuses, they already have some of that knowledge before walking in, instead of never hearing these conversations before and then being let loose away from their parents for the first time and dealing with this.

So those are some of the resources that we’ve looked to on a national level to get some information from.

J: That’s great, thank you.

M: Thank you so much for joining us, Kim. We’re so thankful to be able to hear from you and to be able to ask you questions about this. Thanks so much for talking with us.

KJ: Not a problem, thanks for having me.

 

Sources:

Carley, C. (2017, September 20). What a potential rollback of Obama-era sexual assault policy could mean for Whitman. Whitman Wire. Retrieved from https://whitmanwire.com/news/2017/09/20/devos-rolling-back-campus-sexual-assault-policy/

Carley, C. (2017, October 25). Schuster explains changes to federal Title IX guidelines. Whitman Wire. Retrieved from https://whitmanwire.com/news/2017/10/25/schuster-explains-changes-to-federal-title-ix-guidelines/

Clear and convincing evidence. Legal Information Institute. Retrieved from https://www.law.cornell.edu/wex/clear_and_convincing_evidence

Heller, Z. (2015, February 5). Rape on the campus. The New York Review of Books. Retrieved from http://www.nybooks.com/articles/2015/02/05/rape-campus/

Svrluga, S., & Anderson, N. (2017, September 7). DeVos decries ‘failed system’ on campus sexual assault, vows to replace it. The Washington Post. Retrieved from https://www.washingtonpost.com/news/grade-point/wp/2017/09/07/protesters-gather-anticipating-devos-speech-on-campus-sexual-assault/?utm_term=.65bbed7e7e52

U.S. Department of Education. (2011, April 4). Dear Colleague letter: Sexual violence. Retrieved from https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

Yoffe, E. (2017, September 6). The uncomfortable truth about campus rape policy. The Atlantic. Retrieved from https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/

Yoffe, E. (2017, September 11). The question of race in campus sexual-assault cases. The Atlantic. Retrieved from https://www.theatlantic.com/education/archive/2017/09/the-question-of-race-in-campus-sexual-assault-cases/539361/