Survivors Face Backlash For Reporting, 50 Years After Title IX. What Does Justice Look Like For Them?


Alexandra Brodsky is a civil rights lawyer and co-founder of Know Your IX, a student-led organization to confront gender-based violence. In recognition of her work on sexual harassment, the Ms. Foundation honored her with a Ms. Wonder Award. Brodsky’s Sexual Justice Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash has just been released as a paperback.

As the U.S. confronts a democracy in distress, begins its unofficial kickoff to election season, and commences a new school year, Ms. recently sat down with Brodsky to discuss the 50th anniversary of Title IX, the best ways to support sexual assault survivors, and the importance of pushing back against rising Christian nationalism.

Susan Shaw: What was the impetus for this book for you?

Alexandra Brodsky: I have been working on issues of sexual harassment since I was a student. It’s been a little over a decade now. And at each point where we take a step forward—whether that be with how colleges handle sexual assault or with #MeToo—I’ve seen a wave of backlash in response. And, you know, that sort of central theme has been, “Are we now being unfair to the people accused of sexual harassment?”—who, in the public imagination, are always men, even though we know that in fact people of all genders hurt people of all genders.

Shaw: And how did your work with Know Your IX inform your thinking about this backlash?

Brodsky: We created Know Your IX in 2013, which was a really exciting moment for students working against sexual assault in schools. And I felt we were starting to get momentum just as schools were paying attention. Policy makers were paying attention. We started dealing with a deluge of criticism—now that schools were finally starting to investigate sexual harassment, finally starting to take it seriously—that now they were using procedures that weren’t fair to the accused.

I think in Know Your IX we wanted to take those criticisms seriously when they were getting at something real. Not being knee-jerk defensive. And we knew that unfair procedures are also hurt survivors. Survivors have been the people primarily hurt by unfair investigations over the years. But, at the same time, we didn’t want to lend credence to criticism lodged by men’s rights activists who were really just trying to undermine progress.

You get the sense that [for them] any attempt to address sexual assault on campus is going to be inherently unfair. And I think that the attempt to hold both of those things in our minds at the same time really brought me to the book in wanting to give people the confidence that they can care about survivors and due process at the same time.

Shaw: One of the things that I appreciated in the book is the way you kept coming back to the point that, while some folks are really pushing for the criminal standard for determining culpability, that isn’t happening with any other disciplinary problems on campus. There are all kinds of things we kick students out of school for that don’t have to rise to that level. And I appreciate your point that sexual assault is the one thing that we have targeted that must rise to that level. And we certainly heard a lot of that from Betsy DeVos.

Brodsky: Oh, yeah, it just has killed me that so much of the discourse around people being punished either by schools or workplaces for sexual harassment happens in a vacuum—as though the only thing that any student or worker has ever gotten in trouble for is sexual assault. And that doesn’t mean again that fairness doesn’t matter. Fairness matters for all student discipline. For all workplace discipline. And we shouldn’t be singling out this one class of allegations for particular skepticism and for particularly onerous investigations.

I think it’s clear when we look at centuries of how courts have treated sexual assault allegations. That Betsy DeVos’ Title IX regulations from 2020 are really a continuation of this long tradition of decision-makers holding special skepticism for people who lodge these allegations and requiring them to jump through extraordinary hoops to provide extraordinary evidence that just isn’t required for other kinds of crimes.

In Sexual Justice, Alexandra Brodsky details how schools, workplaces and other institutions can address sexual harms. (Alexandra Brodsky / Twitter)

Shaw: So you title your book, Sexual Justice. What is sexual justice?

Brodsky: I think it is certainly true that there is a lot more to sexual justice than the topic of this book. I think there is a lot more to sexual equality, sexual liberation then the intricacies of how we investigate harms. But what was important to me was—one of the reasons I was drawn to the title—was the reminder that any vision of sexual justice needs to recognize the ways in which support for survivors, justice for survivors, and fairness to the accused be part of the same project.

The same values that brought me to dedicate so much of my time to survivors—concern about equality, about access to opportunity, and to all people’s ability to participate in people’s public life—also should make us very attuned to the possibilities of injustice and discrimination in investigations of wrong-doing. I’ve also tried when dealing with people who come to these issues primarily concerned about the rights of the accused to help them recognize that their concerns should also lead them to care about survivors. That if, for example, they are concerned about discrimination for the accused they should be equally concerned about discrimination for survivors and classes of survivors, particularly women of color.

Decision-makers [hold] special skepticism for people who lodge these allegations and [require] them to jump through extraordinary hoops to provide extraordinary evidence that just isn’t required for other kinds of crimes.

Shaw: A lot has changed since you started Know Your IX. What do you see, at this moment, as the most significant areas of need in moving toward sexual justice?

Brodsky: I think that a piece of this that is new are the increased rates of retaliation that survivors are facing, both in schools and in workplace and in the public spheres. I think about how, when I was a student, so few survivors didn’t report to the school because they didn’t know that they could—that Title IX protected them.

And now we see when I talk to even high school students they have such a richer understanding of what their rights are. We have seen the same thing in the workplace around #MeToo with more people feeling comfortable coming forward to their employer and more people feeling comfortable speaking out in public about their experiences. And in response to that we have seen survivors targeted for both formal and informal punishment. We’ve seen more students being disciplined by their schools when they report. There are cases of students/survivors who reported to their schools and their schools punished them for filing “false report.”

It’s not that retaliation is anything new. It’s just that the more survivors come forward the more opportunities there are for retaliation. So we need to see both more legal and social support for survivors facing that kind of very individualized backlash.  

Shaw: It’s the 50th anniversary of Title IX. How would you assess the impact of that particular piece of legislation? What do you think it has accomplished, and where do you think there’s work left to be done?

Brodsky: It’s been nice to have this opportunity to reflect back on 50 years of Title IX because there have been genuine victories, and it’s nice to remember that during such dark times. You look at statistics about women’s and girls participation in school sports 50 years ago from today, and you cannot deny there has been significant progress. And even on the sexual harassment front—we’ve seen that at the time Title IX was passed most schools didn’t even have grievance procedures to handle these reports on the higher ed level. And we certainly see more infrastructure at schools to support survivors today.

All of that being said, we have seen remarkable backlash that has certainly weakened Title IX’s promise in a lot of ways. The courts have set up judicially-created obstacles to screen title IX suits; we’ve seen Betsy Devos create these terrible Title IX regulations that really limited school’s responsibilities towards survivors. The Biden administration is trying to undo [these bad regulations], but that process will take a long time, and those regulations will probably face challenges with a hostile judiciary.

There are places where we’re seeing Title IX being used in new and effective ways, which gives me hope for the future. I think we’ve seen some really effective advocacy using Title IX to combat state bans on trans athletes, which is an issue in school sports. There’s also been a really exciting case earlier this year where a federal appeals court recognized that schools can’t impose sexist dress codes. They can’t require girls to wear skirts, which I can’t believe is the thing that has to be said in 2022, but apparently it does. So, you know, I try to remember that there is still a lot of creative work still being done even as were dealing with the right’s effort to really hollow out Title IX’s promise.

A protest organized by Know Your IX outside the Department of Education in 2017 to demand the Trump organization to continue to enforce Title IX. (Facebook / Courtesy of S. Daniel Carter)

Shaw: How do you imagine that feminists on campus can organize to move us beyond mere compliance to do what is morally and ethically the right thing?

Brodsky: The work is generally about changing the incentives such that institutions feel that they have to choose the right thing. I feel that’s part of the work I saw done when I was a student. For many, many years the cost effective thing [for colleges and universities] was to bank on their students’ ignorance of their legal rights, bank on their students’ not coming forward when they’d been mistreated—sweeping things under the rug. Student advocacy both through the law and through the media was able to change the incentives such that schools knew that the right thing for their bottom line, the right thing for their image, was to follow the law and treat survivors well.

I think that work has become harder. We’ve seen more lawsuits filed by people fired or suspended for sexual harassment that are gaining traction in the courts. But, I think that sustained pressure is the only thing that tends to work. The one thing I will say is that there is often really valuable work for survivors to do in terms of communicating to institutions about what survivors need the most.

An example I would give is it’s often really easy for compliance officers to become focused on punishment as the end-all and be-all of supporting survivors or, I should say, of addressing sexual harassment—it’s true some survivors feel they can’t share a workplace or can’t share a campus with a person who hurt them. But there are a lot of people who the most important thing they need is access to mental health care, a shift change so that they don’t have to see the harasser on the job or an extension on a paper that is due right after they were sexually assaulted. Institutions can hear from survivors in their protests what their priorities [for support] are, and that reorientation can be really productive.  

Shaw: In a lot of ways, feminist organizing is probably easier on campus than in, say, a workplace. What do you suggest that people do to promote sexual justice in workplaces, ranging from the corner office to the factory floor?

Brodsky: The most effective method for addressing workplace sexual harassment is unionization. And I recognize that there is fraught history of unions and sexual harassment. There are bad examples of unions working only to protect workers from being disciplined for sexual harassment and not protecting the sexually harassed workers. I think we’re seeing a change on that front in the last couple of years.

Shaw: Roe v. Wade has just been overturned. What do you think the impact of that decision on sexual justice may be?

Brodsky: I think that we have already gotten to see the way diminished access to abortion is used as a tool by abusers. We have seen how both the end of Roe and increasing recognition of the so-called personhood of fetuses can be used by abusers to continue the abuse, to reinsert themselves in the lives of their victims. The only remotely positive thing I can say is that we have seen grassroots groups coming together, and they’re ready to jump into action to provide support for all people seeking abortions—in particular, survivors. I wish they were not necessary.

There is often really valuable work for survivors to do in terms of communicating to institutions about what survivors need the most…institutions can hear from survivors in their protests what their priorities [for support] are.

Shaw: How do you understand sexual justice within the context of religious organizations?

Brodsky: I think that an inherent tension when you are talking about institutional responses to sexual harm is that institutions always have an incentive to protect themselves first. Often, they are better able to keep away public attention and to resist transparency than courts are. So one reason people are rightly skeptical of intuitional responses to sexual abuse, and would prefer all of these matters be kicked to the courts, is because at least then we know what is going on, at least then there is a public docket. At least, then, people can connect the dots rather than thinking they’re the only one.

Those general concerns about institutional responses are only heightened when the powers that be are thought to be literally next-to-God. They are thought not just to have power by chance, but to have power because that is the divine order of things. So, I get that. And I don’t have easy answers. I think that part of why I am not in the camp of “just get these institutions out of the job of handling abuse in their ranks entirely” is that they’re always going to be the first line of response. If they are doing it well, they can be extraordinarily effective. There are many people who are never going to pursue legal action. And I won’t pretend there’s no tension there.

The key—and I talk a little bit about this in the book—is providing survivors with choice. I talk about this in the context of mandatory arbitration in workplace reporting, where there are a lot of employers who have tried to use mandatory arbitration provisions to make sure they can never be sued by their employees. There are plenty of employees who are not interesting in suing their employers. There are employees who might prefer to resolve a dispute in a confidential manner. The important thing is just making sure survivors have that choice available to them and that choice is not made through a course of contract.

Shaw: So, speaking of mandatory, another important issue in this area is mandatory reporting. For example, all employees at my university are mandatory reporters. What do you think about mandatory reporting?

Brodsky: I know this is an incredibly tough question, where there are genuinely competing concerns. I know that survivors want and need people that they can speak to, who they trust, whom they know—knowing that their conversations are going to be kept confidential. It is incredibly important schools make available those people and that it be very clear to survivors how they can access that [support].

I think the case for some mandatory reporting is that not all professors do a good job when they receive a report that someone has been assaulted. The fear is that a student discloses to someone who terribly mishandles their report and the student is not connected to the resources and the school has no way to reach that person.

The thing that I am confident about is that survivors need access to mental health advisors, therapists, and other people they can speak to confidentially. Also that survivors need to understand very clearly who is a mandatory reporter and who is not so they can make the decision about what information they are comfortable is being shared.

Shaw: We’re in this moment where we’ve had legislators come out in the last few days explicitly calling for Christian nationalism. What do you think are the dangers for sexual justice from Christian nationalism and how do you imagine feminists can resist this push toward Christian nationalism now that it’s out in the open?

Brodsky: There is so much to say. I feel naïve saying this—we are seeing Christian nationalists re-opening conversations that I thought were behind us, about marriage equality, about basic rights for queer and trans people. Again, I feel naïve to think that a for couple good years they were going to stick. That [change is] just really awful to see.

In the context of sexual violence, I have two sort of specific concerns: one of which is how resistance to divorce as un-Christian puts survivors at risk. JD Vance say very explicitly women should stay in violent marriages, that’s the Christlike thing to do—I would think Christ would beg to differ.

I also worry about the ways in which expectations of sexual purity make it harder for survivors to come forward. There was a bunch of reporting out of BYU [Brigham Young University] a couple of years ago where survivors who reported to the school were then punished. They had consensual sex with the person who assaulted them before it turned non-consensual. That was against the school’s sex code. I worry about that same re-entrenchment of that expectation, that the only survivors who deserve to be believed are those who have never had a sexual thought in their life.

Shaw: Then, of course, in purity culture, if she is sexually assaulted it is her fault anyway because she did something.

Brodsky: Yes.

Shaw: There would be no perfect victim, of course.

Brodsky: Absolutely.

Shaw: One of the things I appreciated in the book is your recognition that we really do have to work within the system that we have and not the one we wish we had. So, if you can imagine your opportunity to do some things you would like to, what would you do in the system we have that you think might facilitate greater sexual justice?

Brodsky: There is a lot of work to be done that doesn’t sound as sexy but is really important to survivors. Like in K12 schools, in particular, just reducing over-zealous school to prison pipelines across the board. We have sexual harassment laws on the book right now like Title IX and Title VII that have been weakened by the courts. I recognize that asking Congress to do anything right now would be a little naïve, but I think it would just be amazing to see those statutes restored to their full power.

On the school level, there has been some promising state level work to provide amnesty protection basically saying students can report they have been assaulted and they won’t be punished for any other rule breaking they have to disclose. So, for example, a student won’t be punished for drinking if they report they were sexually assaulted when intoxicated. As always, expanding education around sexual health and healthy relationships from a really young age is key, and having that be gender and sexuality inclusive. Right now so much of that work is defensive, about allowing educators to do good work that they want to do.

But it is important to remember that, even in a time we are feeling defensive, there is important work being done.

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Susan M. Shaw, Ph.D., is a professor of women, gender and sexuality studies at Oregon State University.