How Does Title IX Affect Sexual Assault Prevention in College Sports? A Critical Review of the Dear Colleague Letter of 2011

By Kristy McCray

When Title IX was enacted in 1972, the purpose was to redress discrimination against women in many facets of education, from denial of federal financial aid to refusal of admission to medical school; how the legislation would affect college sports was not yet on the radar. In fact, it wasn’t until 1974 that the “Tower Amendment” was introduced to exclude “revenue sports” (i.e., men’s football) from Title IX requirements that many began to understand how Title IX would impact intercollegiate athletics. In the decades since, the ramifications of Title IX have grown to include discrimination against pregnant women, safeguards for LGBTQ students, and sexual assault prevention. In 2011, the Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) outlining universities’ responsibilities to address sexual assault on college campuses. A well-intentioned document, the DCL, and subsequent interpretations of Title IX, have created legal chaos for universities and how they respond to sexual assault. More importantly, what is often lost in the debate over DCL interpretations is how to effectively prevent sexual assault on campus. This post will examine how the OCR offers guidance on compliance with Title IX for sexual assault and how this guidance conflicts with the best practices in sexual assault prevention, with special considerations for how this impacts intercollegiate athletes.

In 2007, the Campus Sexual Assault (CSA) Study found that 1 in 5 college women are survivors of attempted or completed sexual assault, and research indicates that more than 90% of survivors do not report. “For those who have encountered Title IX only in the context of athletics, the statute’s application to campus sexual assault may seem like an odd departure.” However, the OCR issued its first clarification on how Title IX applies to sexual harassment in 1997, and in 1999 federal courts recognized the discriminatory effects of sexual harassment in Davis v. Monroe County Board of Education and rape (i.e., sexual assault) in Soper v. Hoben. Further directives were issued by OCR in 2001. However, “in the wake of increased public attention to the problem of sexual assault on college campuses and the lackluster response by university officials,” the 2011 Dear Colleague Letter was an attempt to further clarify how universities must respond to sexual assault. The 19-page DCL provided a three-fold approach to preventing sexual assault on college campuses: educate, investigate, and adjudicate. It outlined how universities should address student-on-student sexual assault and “explains schools’ responsibility to take immediate and effective steps to end sexual harassment and sexual violence” (DCL, p. 2).

“Immediate and effective steps to end…sexual violence” (p. 2) should be preventative steps to end sexual assault before it occurs. For many who work in the rape crisis or sexual assault education fields, we know that ending sexual assault occurs when we change attitudes, and then behaviors, of potential perpetrators through proactive, targeted prevention education. The DCL, however, mainly instructed schools to prevent sexual assault by responding to it – a reactive measure. Under the DCL, it is assumed that if there is a strong adjudication mechanism in place, survivors can report a sexual assault; the assault will be investigated; and, if found responsible, the perpetrator may be removed from campus. Thus, campus will be safer and future assaults will be prevented because the harmful behavior of the perpetrator is gone once he is no longer on campus. (While most men are not perpetrators, the majority of perpetrators on college campuses are men; thus, this post will utilize he when referring to [potential] perpetrators.) The flaw in this logic is the assumption that if we remove all perpetrators from campus, we will have prevented future sexual assaults. But what about new, incoming, or transfer students? Or students who are already on campus who have not yet perpetrated sexual assault – how can we prevent these attacks from happening?

Universities, by all means, should respond to sexual assault when it occurs through adjudication measures, reporting (i.e., the Clery Act), and/or support services for survivors. Of course, removing a student found to have committed a sexual assault will make the campus safer. Further, it may certainly make the campus a safer, less hostile place for the survivor who reported the sexual assault (e.g., she will not have to see the perpetrator in class or fear running into him in a residence hall), which is one of the hallmarks of the DCL’s interpretation of Title IX. But removing one perpetrator at a time, after an assault has already occurred, does not, in fact, prevent sexual assault in a widespread manner. The only way to prevent sexual assault is through ongoing prevention education for all students, staff, and faculty.

The DCL clearly suggests preventing sexual assault by way of policy and response (reactive), not education (proactive). A few examples of reactionary measures disguised as prevention:

  • This letter concludes by discussing the proactive efforts schools can take to prevent sexual harassment and violence, and by providing examples of remedies that schools and OCR may use to end such conduct, prevent its recurrence, and address its effects. (p. 2)
  • Compliance with Title IX, such as publishing a notice of nondiscrimination, designating an employee to coordinate Title IX compliance, and adopting and publishing grievance procedures, can serve as preventive measures against harassment. (p. 5)
  • These requirements [noted in bullet above] apply to all forms of sexual harassment, including sexual violence, and are important for preventing and effectively responding to sex discrimination. (p. 6)
  • If a school determines that sexual harassment that creates a hostile environment has occurred, it must take immediate action to eliminate the hostile environment, prevent its recurrence, and address its effects. (p. 15)

Even in the section entitled “Steps to Prevent Sexual Harassment and Sexual Violence,” prevention is referred to in how we respond to survivors after an assault: “OCR recommends that all schools implement preventive education programs and make victim resources, including comprehensive victim services, available” (p. 14). Further, in this “prevention” section, approximately half a page was dedicated to outlining prevention education programs and training guidelines, while remedies and reinforcement (again: reactive measures) were given more than three pages.

The only specific education and training guidelines offered by the DCL note that schools “may” include prevention education in “(1) orientation programs for new students, faculty, staff, and employees; (2) training for students who serve as advisors in residence halls; (3) training for student athletes and coaches” (p. 14). Further, these preventative education programs should include “a discussion of what constitutes sexual harassment and sexual violence, the school’s policies and disciplinary procedures, and the consequences of violating these policies. The education programs also should include information aimed at encouraging students to report incidents of sexual violence to the appropriate school and law enforcement authorities” (p. 15). The overwhelming focus on reporting and policy, even as a part of prevention education programs, is maddening for those of us who know that prevention is the result of education, not reactive responses.

Despite the 19-page mandate, and somewhat not shockingly, schools struggled with compliance under the 2011 DCL. Confusion and contradiction, both in the response and policy measures, as well as in the requirements for prevention education programs and training, plagued schools. Thus, the OCR issued a follow-up document in 2014: “Questions and Answers on Title IX and Sexual Violence.” The 53-page Q&A continued the OCR’s heavy focus on response (i.e., investigation and adjudication) as means of preventing sexual assault. For example, the question “What procedures must a school have in place to prevent sexual violence and resolve complaints?” is answered thusly: “The Title IX regulations outline three key procedural requirements. Each school must: (1) disseminate a notice of nondiscrimination…(2) designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX…(3) adopt and publish grievance procedures providing for the prompt and equitable resolution of student and employee sex discrimination complaints…These requirements apply to all forms of sex discrimination and are particularly important for preventing and effectively responding to sexual violence” (pp. 9-10). Mandates such as this continue to conflate “prevent” with “resolve complaints” as there is no mention of prevention education in this section.

The Q&A continued to combine prevention with response in the section “Title IX Training, Education and Prevention”. The bulk of this section outlined ways in which Title IX coordinators, hearing board members, faculty, staff, and students understand the policies on campus surrounding Title IX. In less than two pages, it addressed how students should be trained, including this laundry list:

“OCR recommends that, at a minimum, the following topics (as appropriate) be covered in this training:

  • Title IX and what constitutes sexual violence, including same-sex sexual violence, under the school’s policies;
  • the school’s definition of consent applicable to sexual conduct, including examples;
  • how the school analyzes whether conduct was unwelcome under Title IX;
  • how the school analyzes whether unwelcome sexual conduct creates a hostile environment;
  • reporting options, including formal reporting and confidential disclosure options and any timeframes set by the school for reporting;
  • the school’s grievance procedures used to process sexual violence complaints;
  • disciplinary code provisions relating to sexual violence and the consequences of violating those provisions;
  • effects of trauma, including neurobiological changes;
  • the role alcohol and drugs often play in sexual violence incidents, including the deliberate use of alcohol and/or other drugs to perpetrate sexual violence;
  • strategies and skills for bystanders to intervene to prevent possible sexual violence;
  • how to report sexual violence to campus or local law enforcement and the ability to pursue law enforcement proceedings simultaneously with a Title IX grievance; and
  • Title IX’s protections against retaliation.

The training should also encourage students to report incidents of sexual violence” (p. 41). The ongoing reinforcement of reporting as means of prevention was pervasive in this section.

So – if not through response and reactive policies, how should schools engage in effective sexual assault prevention? According to the Centers for Disease Control and Prevention (CDC), “the goal of sexual violence prevention is simple: to stop it from happening in the first place.” Comprehensive sexual assault prevention education programs address potential victims and perpetrators, as well as well as all others in the community through bystander intervention. Bystander intervention programs are the most common forms of true prevention education on campuses. According to the CDC, “The goal of bystander prevention strategies is to change social norms that accept violence and empower men and women to intervene with peers to prevent an assault from occurring.” Other effective prevention education programs are comprehensive, include varied teaching methods, provide a sufficient dosage (i.e., program frequency), are theory-driven and socioculturally relevant, and involve well-trained staff.

The DCL did not indicate all, or even most, of these measures, in its requirements for preventing sexual assault. It did, however, single out athletes as peer group that may need additional and/or specific training measures. Past research has indicated that student-athletes may be more likely than their non-athlete peers to perpetrate sexual assault, though results are mixed and criticisms exist. However, there is a glut in recent media accounts of college athletes who have committed, or been accused of committing, sexual assault and other violence against women (e.g., Baylor University football program, football players at Michigan State, basketball players at Creighton, Oregon and Kansas, Oklahoma’s Joe Mixon, Ohio State’s Garreon Conley; see more here), thus further driving campus and public sentiment that student-athletes need a higher and/or different dose of prevention education. I do not disagree with this opinion.

In fact, my institution, Otterbein University, has indicated a commitment to athlete-focused prevention education through a pilot program this winter. Based on best practices and my own dissertation research (publications forthcoming), I have developed an athlete-centered 10-hour education program that combines curricular elements such as healthy sex education and bystander intervention. This program, A Zero Tolerance Approach: Sexual Assault Prevention Education for Student-Athletes, should decrease sexual violence through measurable changes in both the attitudes and behaviors of student-athletes. To test the effectiveness of this novel approach, we hope to run a pilot program with four teams (men’s and women’s basketball, men’s wrestling, women’s indoor track) in December 2017.

A Zero Tolerance Approach will provide targeted education based on class level (i.e., first/second years vs. juniors/seniors). As evidenced by the research, men and women will be educated separately, thus both a male and a female facilitator will be utilized. Approximately 50-70 student-athletes will participate in 10 one-hour sessions, and the teams participating were chosen due to coach support and demonstrated leadership of students in other facets of campus. As such, they will be given t-shirts and other promotional materials advertising their participation, leading to a ripple effect on their peers in preventing sexual assault across campus. Lastly, all student-athletes in the program will complete pre- and post-tests to collect data on how their attitudes and behaviors have changed while participating in A Zero Tolerance Approach. Additionally, up to 15 participants will engage in a qualitative interview to collect further data on program effectiveness. Effective sexual assault prevention education can reduce sexual violence on university campuses and throughout college athletics. A Zero Tolerance Approach takes that charge seriously in educating student-athletes through an in-depth curriculum specifically designed for both male and female student-athletes. Prevention education programs such as these are just what the DCL (should have) ordered.

Kristy McCray is an Assistant Professor of Sport Management at Otterbein University in Westerville, OH. Her research areas include student-athlete development and sexual assault prevention in college athletics. She previously served as the executive director of a rape crisis center in San Luis Obispo, CA and worked in athletic advising. She can be reached at kmccray@otterbein.edu or you can follow her sporadic Twitter usage: @KristyMcCray

 

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