SALT LAKE CITY — In the coming weeks, colleges and K-12 schools across the country will implement changes to rules governing Title IX, a federal law meant to guard against sex-based discrimination in schools. Religious institutions will be affected in unique ways.
The new rules will eliminate the requirement that religiously affiliated schools submit a written statement to qualify for an exemption to Title IX if they have programs that treat men and women differently based on religious teachings. The changes will also officially lift a ban on using informal mediation (instead of an investigation and adjudication process) to resolve cases of campus sexual assault.
Advocates like 21-year-old Elizabeth Boyle, University of Notre Dame student body president and an organizer for Know Your IX, a youth-led nonprofit initiative, say removing oversight of Title IX exemptions may lead to abuses of the law, and allowing mediation could make it easier for schools to promote a “forgive and forget” mentality when it comes to sexual assault.
“There have been cases in which religious schools are telling students, ‘Pray for your perpetrators. Just pray about it and forget about it. Go to a Mass, or go to a vigil instead, and everything will be solved,’” Boyle said. “One of my fears is if they lift a ban on mediation in cases of sexual violence, then religious schools, in particular, might push mediation on to survivors as this kind of twisted idea of forgiveness.”
Secretary of Education Betsy DeVos first introduced the proposed new Title IX rules and made them available for public comment in November 2018. Changes regarding religious exemptions and mediation have received less attention than others, like the requirement that schools allow the accused to cross-examine their alleged victim. Rules such as this one are meant to enhance due process for the accused.
“It is our goal with this proposed rule to ensure that Title IX grievance proceedings become more transparent, consistent and reliable in their processes and outcomes,” DeVos said at the time. “Far too many students have been forced to go to court to ensure their rights are protected because the department has not set out legally binding rules that hold schools accountable.”
But while supporters have praised the proposed rules for making the system more fair, critics say they will discourage victims from coming forward and ultimately make schools less safe.
“It’s complex to say the least,” said Tiffany Turley, Brigham Young University’s Title IX coordinator. “We continue to work with our colleagues at other schools to evaluate best practices and how to navigate the ever-changing landscape of Title IX.”
While religious schools have their challenges, Boyle said they are in a unique position to foster productive dialogues surrounding sexual assault that might not be possible at public institutions.
“My own Catholic faith impacts a lot of the work that I do and helps me hold forgiveness and love and mercy and grace in my heart,” Boyle said. But first, students need a process that ensures their personal safety so they can get to a place where they can consider forgiveness, Boyle said.
Forgiveness
On the edge of Notre Dame’s campus, in a nearly 200-year-old log chapel surrounded by tall trees, a university rector led a ‘Mass of Healing’ for victims of sexual violence as well as the accused in 2014. There, attendees could receive the ‘anointing of the sick,’ a blessing those suffering from physical or mental illness.
“Healing is for everyone,” the event announcement read.
But Grace Watkins, then a sophomore at Notre Dame, did not attend, despite being a survivor of sexual assault.
“The Mass seemed like part of an attempt by the university to encourage their survivors to forgive their assailant,” Watkins wrote for Time Magazine.
Notre Dame spokesperson Dennis Brown told Inside Higher Ed the purpose of the one-time event was not to persuade victims to forgive their attackers and the school was not aware of any negative feedback.
Watkins wrote that she was “deeply worried” that mediation would result in more victims being pressured to forgive their rapists. Mediation involves two or more parties sitting down with a mediator and working out an agreement. Guidance from both the Bush and Obama administrations recommended against mediation in sexual assault cases because it could make the crime seem like a simple disagreement between students and re-traumatize the victim.
Laura L. Dunn, Washington, D.C.-based victim rights attorney who represents victims of sexual violence and harassment, said every school has an incentive to encourage mediation because it requires fewer resources, but the process is completely voluntary. And in some cases, it may be what the victim prefers, because not every victim wants their attacker kicked out of school, she said.
Religious schools
A Title IX exemption for a religious school would not allow the institution to avoid handling cases of sexual assault. A school may need an exemption if religious teachings dictate that men and women be treated differently, like if men only are allowed to become priests for example. In the past, a school needed to submit a written claim to the Department of Education in order to qualify, but under the new rules, no such claim would be required.
“I think this whole conversation about religious exemptions and Title IX is tied to a greater national conversation as to religious liberty and freedom on college campuses,” said Boyle.
Of greater concern to advocates like Boyle are strict student codes of conduct at religious universities that may discourage students from reporting sexual abuse because they are afraid of getting in trouble for using alcohol or engaging in premarital sex.
A 2018 student climate survey at Notre Dame showed 25% of students would not report sexual assault out of fear of breaking other rules regarding alcohol use or visits from the opposite sex in dorms. In other words, many students felt following the rules was more important than personal safety, Boyle said.
In 2017, Brigham Young University, affiliated with The Church of Jesus Christ of Latter-day Saints, introduced an amnesty clause into its policies for dealing with sexual assault, which allows leniency for other student code of conduct violations not directly related to sexual violence.
“We continue to do our best to ensure we are effectively serving our students and maintaining compliance in this important area,” said Turley of Brigham Young University.
Diane Padilla, Title IX coordinator for Wheaton College, a Christian school in Illinois that also prohibits alcohol use and premarital sex, said, “Wheaton College ... recognizes that students may be hesitant to report a sexual assault if they used alcohol when it occurred. We seek to remove any barriers to reporting and address this by giving amnesty to students who report sexual misconduct that may have involved using alcohol.”
Schools with strict codes of conduct and high standards for their students should have even harsher penalties when it comes to sexual violence, but that’s not always the case, said Michael Dolce, a Florida-based attorney who represents victims of sex crimes. The reason is that there is so much stigma surrounding sex crimes, he said.
“Society’s No. 1 problem in this area is that nobody wants to talk about it. Nobody really wants to find themselves in the middle of dealing with sex crimes and abuse and things like that because it’s so icky,” said Dolce. “Especially religious institutions that may be particularly concerned about their image.”
Is this a job for schools in the first place?
The Department of Education’s Title IX changes are seen by experts like Dolce as making the adjudication process more “court-like” — with provisions for cross-examination and the addition of more advisers. These changes have caused some to revisit the question of why colleges should be asked to get involved in cases of criminal acts like sexual assault in the first place.
It’s “problematic” to expect colleges to behave like courts, said Philadelphia-based attorney Joshua Richards, who advises colleges and universities about Title IX issues.
“The people who work in courts, lawyers and judges, they have years of training. They are highly experienced. Colleges don’t have that, and when you put the expectation on colleges to operate in the same way as the courts, that’s an unrealistic expectation,” Richards said.
Most Title IX sexual assault cases are decided without physical evidence, based primarily on conflicting testimonies, said Richards. Given those limitations, it’s impossible to expect schools to make the right judgement every time, he added.
Boyle said that some survivors of sexual violence at religious schools may perceive that judgments are more lenient because there is an attitude that only God can judge, that everyone is a sinner and everyone can be forgiven.
It is necessary for schools to address allegations of sexual assault however, because law enforcement and the courts are not able to process every report, said Daniel Prywes, a Washington, D.C.-based lawyer who has represented universities in defending Title IX claims.
“The fact is police are not going to prosecute every case,” said Prywes. “A lot of women may be very reluctant to go to court to file police complaints because they are going to have to testify in court, and it’s going to be public.”
In the end, most people agree that schools should have a system for addressing sexual misconduct. The question is, what is the best way to do that?
While DeVos makes the argument that the system needs to be more objective and take into account the rights of the accused, Boyle says there needs to be cultural shift where survivors are believed and their needs are put first.
“I think the religious schools have a unique ability to say we’re going to work towards forgiveness. So because of that, we’re going to put survivors first,” said Boyle. “So that spiritually, emotionally and mentally, you can get to a place where you feel that you can regain that part of your life that was stolen from you.”
