In The Arena No, We Can’t Just Leave College Sexual Assault to the Police

Alexandra Brodsky and Elizabeth Deutsch are students at Yale Law School. Brodsky is an editor at Feministing.com and founding co-director of Know Your IX, a national student campaign to end sexual violence on college campuses. Deutsch holds an MSc in Gender from the London School of Economics.

To read the news this year, it seems like colleges never get sexual assault cases right. In July, there was the New York Times exposé on Hobart and William Smith Colleges. Then, Emma Sulkowicz, a Columbia student, began carrying her mattress around campus in protest of her rapist’s continued presence at the school. The latest—and most explosive—entry in this sadly growing collection of stories is Rolling Stone’s revelation of the University of Virginia’s shockingly inadequate response to a freshman woman’s reported gang rape.

Taken together, these cases—and countless others around the country—have raised an obvious question: Why are colleges in the business of adjudicating rape?


Sabrina Rubin Erdely, the reporter who broke the UVA story in Rolling Stone, called school adjudication of criminal acts an “absurdity.” Dahlia Lithwick, writing for Slate, asked, “How is it possible that a crime as serious as an aggravated, premeditated gang rape can be funneled into an internal disciplinary process?” In the New York Times, Yale law professor Jed Rubenfeld similarly has called for “integrating college rape hearings with law enforcement.”

The critics aren’t wrong that colleges and universities, for the most part, are doing a bad job responding to sexual-assault victims on their campuses. But these shortcomings aren’t reason for colleges to abandon their duties in this arena. They need, instead, to finally live up to their responsibilities.

In fact, there’s a very good reason that universities are charged with the task of handling matters of sexual assault and harassment. Recognizing this history is critical to encouraging (and even forcing) schools to protect students from sexual violence. To answer the question posed by so many critics, we must look a few hundred miles north of UVA, and a few decades back, and retrace the history of gender equality on college campuses.

Pamela Price deserved a better grade.

In 1976, the Yale undergraduate had refused to acquiesce to her professor’s sexual demands—the disappointment of which, he told her, would earn her a C instead of an A. Price reported the events to Yale’s administration, but, as she later testified in federal court, school officials told her “nothing could be done to remedy her situation.” At that time, it was true: When Price and several classmates sued Yale for failing to address instances of sexual harassment and assault, the university had no systematic response plan in place and no clear legal obligation to provide one.

But that was about to change. Alexander v. Yale, the case that detailed harassment against Price and four other Yale students, was the brainchild of feminist lawyer Catharine MacKinnon, who earned her law degree from Yale the same year the suit was filed. The year prior, as a student at the school, MacKinnon had written a paper—shortly thereafter published as a book and now heralded as a landmark piece of feminist legal theory—arguing that sexual harassment was a form of discrimination. That argument became the basis for the lawsuit. While the case was ultimately dismissed on technical grounds, the court accepted MacKinnon’s novel legal claim: Schools were legally required to respond to sexual harassment and violence because they constituted forms of gender-based discrimination prohibited by federal law.

The basis of this claim was Title IX of the 1972 Higher Education Amendments, the educational antidiscrimination law that required that “no person in the United States shall, on the basis of gender, 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.” When the Act was passed, legislators sought to ensure that women, in many cases newly allowed on coed campuses, could learn and thrive like their male peers and enter the professional world on an equal playing field. While language of Title IX is short and plain, it has had sweeping effects (perhaps most famously in athletics). It was in Alexander that the law was first determined to entail sexual harassment and assault. Further judicial interpretation and administrative guidance—including two Supreme Court decisions—have refined exactly what is required of schools by way of handling sexual harassment and assault to ensure that all students can learn free from gender-based discrimination.

The underlying principle first recognized in Alexander remains the core of contemporary Title IX protections from gender-based violence: When a student faces harassment, abuse or assault at school, it’s hard to learn. And because women are disproportionately victims, this leads to gender disparities in students’ access to education and ability to succeed.

One of Price’s fellow plaintiffs in Alexander, for instance, dropped her flute classes at Yale after her instructor raped her. Today, more and more students have come forward and detailed the ways campus violence—inside and outside the classroom—has interfered with their education. Without adequate university responses, victims are left to attend class with their assailants. They must try to focus on their studies in libraries shared by abusive partners, or raise their hands for professors who expect more than papers. Some schools even actively encourage victims to leave campus until their assailants have graduated, disrupting the survivor’s education under a guise of concern for his or her safety, rather than suspending or expelling the abuser.

What Alexander helped to establish, then, is that campus rape is not just a crime but also an impediment to a continued education—and to subsequent success in the workplace and public life. That means that Title IX’s protections are necessary for an individual student’s learning opportunities and for gender equality throughout American life. If sexual violence goes unaddressed at universities, women will face unconscionable obstacles to education, professional success and full citizenship.

That’s why the principle first articulated in Alexander v. Yale is so important as we debate how to handle the recent slew of reports of mishandled instances of campus rape and assault. Even though we have yet to see the full promise of Title IX realized, Alexander undoubtedly created a framework and mechanism to make campuses across the country safer and more equitable. In response to the case, Yale set up a board to handle sexual harassment complaints. Hundreds of universities across the country followed—not just creating disciplinary committees, but also hiring sexual assault response counselors and taking action against those who threatened students’ ability to learn free from discrimination. Today, thanks to MacKinnon, Price and her classmates, no school can credibly claim, as Yale once did, that no administrative remedy for sexual harassment is available.

Of course, as recent reports have made clear, much more progress needs to be made. More than 30 years after Alexander, sexual assault is still rampant on college campuses—and still often goes unpunished. Title IX’s protections are not living up to their promise today. Eighty-six colleges and universities are currently under investigation by the Department of Education for failing to protect students, as Title IX requires, in their handling of sexual assault cases. And stories from survivors, now all too prevalent, expose the raw betrayal that students face when schools break the law. This has left many observers shaking their heads and wondering why we do not just leave such serious matters for the criminal justice system—wouldn’t police do a better job of finding and punishing perpetrators?

These proposals, though, forget Pamela Price and the other plaintiffs who sued Yale in 1977. When we consider the failings of universities in handling these cases today, we must also remember what campuses were like before Title IX and the stakes for women’s equality underlying the system. As Rolling Stone exposed, UVA certainly appears to have failed its legal obligations by not addressing a known and persistent threat to student safety on campus: a frat’s reported pattern of gang rape. But were it not for Title IX requirements first articulated in Alexander, the university would owe student victims of sexual assault no duty whatsoever. However poorly schools address gender discrimination now, without Title IX they would be legally permitted to do nothing. The problem is not the law, then, but in the fact that so few schools follow it.

The history of Title IX illuminates a fact that is too often overlooked in conversations about campus rape today: University adjudication is neither a substitute for nor a direct parallel to the criminal justice system. After all, student-victims can report to both their universities and the police; the two systems are not mutually exclusive. Campus adjudication is a separate antidiscrimination right protecting students’ access to educational opportunities at their schools, unburdened by historical and persistent gender-based disparities. (In this way, Title IX mirrors not the criminal justice system but Title VII, the federal workplace antidiscrimination law that recognizes the particular impediments to equality that may arise in an employment context and which requires employers to respond to violence reports.)

The criminal justice system does not and cannot respond to these equality concerns. Criminal prosecutions are not about the victim. The state, not the survivor, is the plaintiff, and prosecution is not required. Indeed, only about 8 percent of rapes are ever actually prosecuted. Nor do criminal remedies adequately respond to victims’ needs. While some victims might take comfort in their assailants’ incarceration, criminal courts cannot provide the range of nimble solutions at schools’ disposal, such as having an accused assailant moved from the victim’s dorm or seminar. And, finally, the criminal justice system does not, in many states, address the range of harms captured under Title IX, including harassment, emotional abuse and certain forms of violence often perpetrated against queer people.

In light of these critical differences, campus adjudication should not give way to the criminal law or aim to look like miniature criminal courts. Schools are undoubtedly failing survivors, but, rather than abdicating responsibility to a system with different ends and different means, they should face the challenge of educational equality head on. Colleges should build disciplinary procedures focused on a victim’s ability to continue to learn, nestling sexual misconduct policies within broader antidiscrimination protections. As a first step, school administrations should turn to the real experts: victims, who know better than anyone what support students need to continue their educations in the wake of violence. And that, in many cases, will not look like a criminal trial.

To ensure that colleges respect students’ civil rights, the Department of Education’s Office for Civil Rights (OCR) should more vigorously enforce Title IX. Before this year, OCR had only once publicly labeled a school as noncompliant, instead opting for resolutions behind closed doors that gave schools little incentive to change their ways. Now, responding to chronic school failures and student demands, OCR has started holding colleges, including Princeton and Tufts, responsible for their failures by issuing public reports about their illegal practices and naming these schools noncompliant. Legislation introduced in Congress this past summer would also provide OCR with the ability to levy fines against offending schools, providing a clear incentive for colleges to shape up. By following through with these actions, federal policymakers would show that the answer to school violence is not to throw Title IX out, but to enforce it. Only then will the statute finally live up to its promise.

Many of those who say criminal law is the single best way to handle campus sexual assault believe that bringing in the cops is the only way to put a stop to gender-based violence at colleges. Yet the gravity of these harms cannot be understood through the lens of criminal law alone. If we are truly to take sexual violence seriously, we must, as Title IX does, acknowledge that rape and harassment serve to maintain a regime of inequality in which, decades into widespread coeducation, women still cannot learn and thrive as equals to their male classmates.

Yes, rape is a horrible crime. But it is also part of systemic inequality in education that we still need to fight.