Title IX was 'Trump's canary in the coal mine'

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If you’re a member of Spitfire News you already know this, but I’m currently in Kyoto, Japan. Actually, I’m writing this from my couch in Brooklyn, but by the time you read it I’ll be in Japan.

For the next two weeks, I wanted to take the opportunity to share some longer interviews with some of my favorite female nonfiction authors. Each of their recent and upcoming books unpacks a different angle of our political and cultural dystopia, and particularly how it’s affecting women and girls.

The first book that came to mind for this series is On the Wrong Side: How Universities Protect Perpetrators and Betray Survivors of Sexual Violence by sociologist Nicole Bedera. She obtained unprecedented access to the Title IX system in higher education, observing and interviewing students and faculty for a year on the condition that she withhold the name of the university she studied.

Since I’ve read this book, I cite it more than any other. It proves that perpetrators of sexual violence are rewarded by the very systems put in place to hold them accountable, while victims of sexual violence suffer more violence when they report. Now that Donald Trump signed a blatantly unconstitutional order to dissolve the Department of Education, the federal body that oversees Title IX, I had to catch up with Nicole to see what she thought about it.

Our conversation is edited for length and clarity.

Kat Tenbarge: With the future of the Department of Education being very uncertain, I’m curious how you’ve been thinking about what may happen to Title IX and what Title IX may look like in the near future.

Nicole Bedera: You know, I've been asked this question a lot recently, and I think I have a slightly different answer than people expect, because I see Title IX as Trump's canary in the coal mine. And in a lot of ways, the Trump administration completed most of their agenda on Title IX in his first term, and what we're seeing now is an expansion of his Title IX approach to broader society. So things like banning DEI and suppression of free speech, that's the kind of thing I was seeing in Title IX in 2018, before he had even passed his regulation. When I was writing the book, the draft had come out, but the regulation itself hadn't been put into place yet. And so a lot of what we were seeing was universities complying in advance and dreaming up their own things that they wanted to do that went above and beyond anything that the Trump administration had ever mandated.

[For context, Trump’s 2020 Title IX regulations, which the administration reverted to in January, made it harder for victims to report, allowed perpetrators to cross-examine their victims, and rolled back rights for transgender students to use the bathrooms and locker rooms of their choice.)

That's the main thing I'm thinking about right now, is the Trump administration, as far as I know, as far as any of us know, they're not planning a revision on their Title IX regulation. They're not planning to change how schools should administer it, but they're returning back to the way things were before. And a few hallmarks of that approach is there's no oversight. There's nobody at the Department of Education who is answering the phone if a survivor is trying to file a complaint about how they were treated by their universities. Which used to be a really key function at the Department of Education's Office of Civil Rights, was that our schools never really implemented Title IX policy, and the Department of Education was the one place where people could complain about that. So that has been gone under Trump in both of his terms, and we return to that.

And then the other thing that we're starting to see, and that I'm very concerned about, that I do think is a little bit of a change, is that the Trump administration is now weaponizing Title IX. The clearest example is stripping the University of Maine of their federal funding for allowing trans athletes to participate on women's athletics teams, which, again, is something that they threatened to do during his first term too, right? They didn't succeed then, but they did threaten to do it. And so I think that's the thing we really have to keep an eye out for. It's weird, because they're dismantling the Department of Education to make Title IX weaker, but they're also using it in an extremely selective way as a form of punishment for people who care about gender equality, for women, for transgender and nonbinary people, for really anybody who’s gender marginalized.

KT: That calls back to what we saw and what you also wrote about during the first Trump administration, with Title IX under Betsy DeVos. When they talked about Title IX and specifically the way it is supposed to be used to seek justice for survivors, they’re framing it as an injustice to perpetrators. They’re actually weaponizing it against the very people who it’s supposed to serve. And that didn’t just happen under Trump, either.

NB: The big finding of the book is that Title IX offices on university campuses have actually been discriminating on the basis of gender. If you think about what Title IX is supposed to do, on the most basic level, it's supposed to restore educational access to anybody who doesn't have equal educational access because of their gender. And so in the case of sexual violence, we know that survivors really struggle in school after a sexual assault, especially if they have to share space with their perpetrator. And so the whole mandate around Title IX in the past, before Trump, was really focused at the federal level of making sure that victims could still complete their degrees and that they were not going to lose out on anything they wanted to do in school because they were having to, on their own, avoid a perpetrator who was a continued threat to their physical and emotional safety. And that's the exact opposite of what's been happening in Title IX offices. If Title IX offices are supposed to make education easier to access, one of the big findings of the book is that it made it a lot harder instead.

When I went into the field for this book, hardly anybody had been able to see inside the Title IX office yet, and it took a long time to do the research. It took a long time to publish for a lot of reasons, including there being a pandemic in the middle of it. But by the time I was publishing it, there were more studies starting to come out, confirming the same things I saw. And I was stunned by how universally all of us found that every survivor, and I really do mean every survivor, said that their education was negatively impacted. The way schools were implementing Title IX was a clear violation of Title IX. And I think that made the law pretty vulnerable to being weaponized for other purposes, too.

KT: In the beginning of the book, you talk about how survivors who are preparing to navigate the Title IX system don’t realize how opaque it is, how ineffective, how counterproductive, until they’re actually in it. And along with them, other people on campus, including perpetrators and would-be perpetrators, they don’t know how ineffective and counterproductive it is. So perhaps just the threat of it existing could deter their behavior, versus having a federal administration that is very clearly and loudly incentivizing male violence.

NB: Yeah, and I think we can already see some hints of how that might play out, because the perpetrators of sexual violence on campus are not random. We sociologists actually know where to find them, because they tend to congregate around each other. The best predictor that a man is going to be violent towards women is that he is friends with other men who hold misogynistic views and are violent towards women. There are places on campus where that kind of behavior is rewarded and where there are a lot of perpetrators who have interfaced with Title IX or the university more broadly, in one way or another. I'm thinking of places like school athletic teams and fraternities, which we know are sort of the hotbeds of sexual violence. And in those spaces, everyone knows that they are not subjected to Title IX. In the book, there is one case involving a fraternity. There are zero cases involving student athletes, because, as it currently stands there, they really are not subjected to Title IX. They are spaces on campus where, you know, I didn't have a chance to get into it in the book, but there are entire structures set up to protect the men in those spaces from ever having to interact with Title IX. Knowing everything that the fraternities know and knowing everything that the student athletes know, I do think there is a risk of increasing violence, especially since we know that young men's attitudes about gender and feminism are moving really far right and really far towards misogyny really quickly. And so the idea that misogyny would be sort of captured in just a couple of spaces on campus, I don't think that's necessarily something we should expect anymore.

KT: You were able to observe and study the inner workings of this one university, which is anonymized. How were you able to get the access to do a deep dive into this anonymous university?

NB: I was planning this project in 2016 and 2017, so right after Trump was elected. These debates around Title IX on college campuses, they're not totally new. We did this in the 90s, but they were renewed for this generation. And so there had been this new attention to the idea that campus sexual violence rates actually haven't changed since women were allowed on campus, but schools had never granted anybody access to their Title IX offices, and nobody had really seen what they were doing inside. There was this big political debate over, “Are they going too far? Are they not going far enough?” I wanted to see for myself, and I wanted to see everybody’s experiences within Title IX, so I interviewed and observed victims, perpetrators, and the school administrators involved in their cases.

That's always the first question: How were you the one person who got inside, you know, first? And the answer is, I used to be a victim advocate. Victim advocacy pays really poorly. The hours are really hard, the working conditions are really tough, and so it's pretty rare, especially for young people, to stay in that job for very long. And so I had a whole network of former victim advocate friends. And a couple of them had become victim advocates at universities, and one of them thought their university would say yes to the project. That's how I got into Western University, what I call Western University, on the requirement that it would be anonymous. The other piece is that the Title IX coordinator was new and had only ever worked in government before. Her reaction was, “I'm totally used to this kind of thing. I'm totally used to researchers watching what I'm doing in my day to day work.” And the longer that she had been working in a university space, the more I think she realized how unusual her decision had been and how controversial it would be with some of her peers.

KT: I’m so glad these circumstances fell into place, because reading the book felt like reading a historic piece of underground reporting. It was so well done, and in a way where I thought “They don’t want us to know all this information.”

NB: Thank you. They definitely did not want this information to come out. I did have a presentation of findings for the administrators in the book, and it was interesting to see how far apart their perception of their work was from what I actually found. I interviewed current and former staff, and the former staff were not at all surprised. It was the reason they left, because they could now see the system the way that I had come to see it, and they knew that they weren't actually working to promote gender equality on campuses. And so a lot of them, they couldn't stomach that, and they left. But for those who were still there, they were really surprised to find out that everything they had been trained to do wasn't having the effect that they thought that it was having.

I wanted to paint a picture for them about how their work was creating institutional betrayal, because there was this presumption that nothing they did could affect victims, that the harm to the victim was already done. If something bad happened to the victim after the investigation, it was just the compounded trauma of the sexual assault, but it had nothing to do with their work. And so I just shared excerpts side-by-side, some of them made it into the book, of the way perpetrators said that their lives got better after a Title IX investigation—including some of the ones who were sanctioned—and then I compared that to the victims whose lives overwhelmingly got much worse than I think the school administrators ever could have imagined. And one of the investigators, after seeing that, a couple of them burst into tears, and one of them came up to me and asked me for help, to try to fix it, and said, “I had no idea that this was what was happening to them afterwards, and I feel horrible about it.” But you know, a lot of people were not there that day. They just didn't think it was important, or they were sick or whatever, but they didn't attend. And those were specifically everybody's bosses.

KT: One of the things that really stuck with me from the book were the interviews with administrators and people who interfaced with perpetrators and victims. What they would say was so revealing about how they really felt, they were disparaging toward victims, they didn’t believe victims, and even people whose role was to support victims would talk about survivors in this way.

NB: There was one sentence that school administrators, especially in the Title IX Office and the Dean of Students Office, would say over and over and over again. And it was, “We believe both parties.” And the first time I heard somebody say, “We believe both parties,” I could not wrap my head around what they possibly could mean. One party is saying they were sexually assaulted, and the other is saying no sexual assault occurred.

I had a light bulb moment in an interview with the Dean of Students, where I asked her what it meant, and she explained it in a way that I kind of finally saw what they were getting at. It really opened up the broader ideology of Title IX, which is seeing victims as oversensitive and hysterical. For people who haven't read the book, what the school administrators mean when they say we believe both sides is that they believe that the perpetrator intended to do no harm, and that the victim was harmed by her own thoughts. She misunderstood the perpetrator’s intention in a way where she traumatized herself. That's what they mean. Mind you, that's not what consent is, even according to school policy. The burden is on the perpetrator, the other party in a sexual encounter, to realize that there is no consent and to stop their actions. And if you read the stories in the book, there is no ambiguity. There is no question that someone was traumatized and the victims were, I think, shockingly communicative with their perpetrators about which boundaries had been crossed and when. I can call them perpetrators, because every single perpetrator I interviewed confessed.

KT: Despite what people think, perpetrators often confess, but that doesn’t mean a victim will get justice. I’ve seen this myself in my reporting. You talk about this in the book, but because of modern technology, there’s so much more evidence accessible today. You’ll have text messages where perpetrators express guilt. And despite that, the role of institutions seems to be to create doubt, to create a way for the perpetrator to avoid accountability, because that is viewed as the fairest outcome.

NB: I want to give credit to the brilliant researcher Jacqueline Cruz for coining a term that I use in the book called “orchestrated complexity,” and that's exactly what we're talking about here, is that universities are taking incredibly clear-cut, easy-to-solve cases, and they are orchestrating complexity in the name of looking like the process is neutral. And you can watch administrators do this over the course of the case. In every case, they typically meet with the victim first. And at first, they have all this empathy for the victim, and they feel compelled to help them. And then comes this mandate of neutrality. You can't have neutrality in an act of violence that involves power disparities, there's no such thing as equal in that scenario. So they stop themselves from feeling empathy for the victim and from believing that violence is real. They say, “I have to suspend judgment.” And then they interview the perpetrator and the witnesses, and they do the same thing every time. They get any kind of damning evidence that makes it very clear what their outcome should be. Instead of latching on to that, they say, “That's not a neutral way to respond. I need to find a way to see this as neutral.” And then you end up with cases where anybody looking at them from the outside would think there's a mountain of evidence of what occurred. And instead, the university is saying “Sexual violence is too complicated to ever get right, and therefore the best thing we can ever do is nothing.” If they just come to a finding of insufficient evidence or wait until everybody has graduated, they see that as preventing harm. In reality, it’s causing harm.

One of the places you can see this in the book is through the hearing boards. It's kind of funny, because this is something the Trump administration and a lot of men's rights activists really pushed for. They wanted the Title IX process to look more like the criminal court, including having a jury of the perpetrator’s peers, with this presumption that juries would take the side of white men, as they do in the criminal courts. But that's not what I found. I found that when ordinary people who were just volunteers from across campus saw these cases, they sided with the victim in every single one. And yet, the university had a measure in place where the hearing board’s decisions weren't decisions. They were recommendations to university administrators, who ignored their recommendations in every single case but one, where the administrators had already agreed on expulsion. But aside from that, in every case that did not end in expulsion already, they ignored their recommendations in every single one.

KT: Just like while reading the book, I have to pause and adjust my worldview.

NB: I came in with the presumption that if hearings were something that the Trump administration really wanted, when they had an overtly pro-perpetrator Title IX regulation in mind, I assumed that they would benefit perpetrators. And in many ways they still did. The hearing boards, the members, tended to side with victims. But they weren't being listened to, so that part didn't really matter, and the hearings were still just as traumatic for victims as everybody had always feared they would be. At the time, Western University didn't require hearings for all cases. Now they do, but at the time, there weren't that many cases that went through hearing boards in a given year. In the year that I was in the field, it was four, and that was the most they'd done in a single year in a very long time.

The hearings themselves, for the few victims that went through it, they were hugely traumatized by having to come face-to-face with a perpetrator who could ask them questions, humiliating questions, about the violence, about their sexual histories. This really cemented for me that sexual violence hearings are fun for perpetrators and that they're another place they can seek power over victims who otherwise have gotten away from them. This changed the way I thought about why men's rights activists want hearings. In the past, I was so sure it was because they thought they would end in their favor. But either way, it's forced contact. It's forced face-to-face contact, and that's enough for them.

KT: That reminds me of how family court is often the legal justification to force perpetrators and victims into contact and co-parenting. And it reminds me of what we see at the highest-profile level of these cases, which is with women like Amber Heard and now Blake Lively. I just wrote about how everyday victims don’t share their privileges, but they are harmed in some of the same ways.

NB: The number of defamation complaints threatened or filed against victims of college sexual assault has increased dramatically since Depp v. Heard. And it’s the same thing with retaliatory complaints, which a lot of people don't know about. A retaliatory complaint is when a perpetrator of sexual violence files a complaint through the legal system. In this case, we'd be talking about Title IX, but it happens in places like family court, too. They do that to confuse the courts, to force and maintain contact with their victim, and to punish their victim for coming forward. And these types of complaints, at the time I was in the field, about 1 in 10 victims would face a retaliatory counter-complaint from their perpetrator. The numbers now, there hasn't been a study since then, but we know it's increasing really rapidly. They're becoming, by far, the largest form of false allegation made around sexual violence in our systems.

And to follow up on your point about this presumption that if you are a privileged woman, that you will somehow be exempt from sexual violence, I saw those disparities on the college campus. One of the victims in the book had just left a violent relationship with a child of a wealthy donor on campus. Now, she was a wealthy donor, too. They were legacies of the two biggest donation families for the university, and when she was the victim in that setting, it didn't matter. All of a sudden, her wealth and her family's legacy of donations, they did not matter anymore, because she was a victim.

One of the questions I got about this project is, “If you're studying college students, are you studying wealthy white women?” And the answer is no. If you look at the demographics of the victims in the book, they are much more racially representative of our society than that. If anything, it's a more diverse pool than the university. The university is predominantly white. The victims are not. And so personally, the answer is no. But second of all, the follow-up question was, “If they're wealthy white women, are they getting treated better?” And again, the answer was no, because sexual violence depends on a power disparity between victim and perpetrator. It can't happen if the perpetrator doesn't have power over the victim. And one of the things that I've seen time and time again in this project and others is it doesn't matter how privileged and powerful the victim is as an individual, if in comparison to their perpetrator, they're still less powerful, and they always are. And so this presumption that there's a certain amount of wealth or power that can protect women from this violence, it's a myth. It's not true, because there are still always perpetrators with more wealth and more power.

KT: I think a lot of people assume, and I’ve been guilty of this as well, that victims are their own biggest advocates. But that requires victims to know they’ve been harmed. In your conversations with them, you found that wasn’t always the case, because of the gaslighting and psychological manipulation they endured in the Title IX system. They would actually frequently fail to recognize that the system had been unjust.

NB: In this book and this study, you really see that on display, because the victims are still so dependent on the university. It's like the victim is still in a relationship with their perpetrator, who has control over their bank account, has control over their children, has control over their future. And we know that victims in that scenario, they do defend the perpetrator, because they have a linked fate with their perpetrator. Once the study was over, quite a few of the victims came to see what happened to them as unjust. They came to see the institutional betrayal, but only after they had either dropped out or graduated and had left the institution entirely. That seemed to be a really big piece of being able to grapple with it.

One of the victims who blamed herself, she was a graduate student. Faculty in her department had taken an interest in the case where the perpetrator was an undergraduate, and there were all of these people who seemed to be really conspiring against her to keep her perpetrator enrolled in school, to help him graduate, while they didn’t seem to care about her at all. When I pointed that out in an interview, her response was “I really can’t go there. That makes me feel like a conspiracy theorist.” The sense of “If I see the system for how bad it is, it makes me feel and sound crazy,” is something I heard from a lot of survivors. In the book, I tell the story of one victim who never blamed herself. She was seeing this huge injustice, it was really shaping her worldview, and it was making her feel unsafe and scared to such a great degree that she didn’t think she could finish her degree at the university. She really felt like she was losing her mind, like she couldn’t trust her own judgment, that everyone was reacting to her in the exact opposite way of what she’d been taught her whole life. So survivors kind of have two options ahead of them. The first is to say “It’s my fault. If I change myself, society will go back to the way it was before.” Or, “Everything I’ve learned about society is untrue, and I don’t know who I can trust moving forward.” You can understand why they would take the first option, on a subconscious level. I don’t think it’s a conscious decision that anybody makes. How do you continue to finish your degree at a school where you know women are not protected from violence?

KT: When I first started reporting on these celebrity trials, it was confusing to me how victims could look at a situation where another victim was denied justice and see them as the problem. But this helped me understand why. In order to keep moving through the world, you have to embrace a worldview where speaking up makes you the problem. Then you can view other survivors as the problem.

NB: There is also a structural component, which is that victims who try to seek justice are surrounded by victim-blaming rhetoric the entire time, and it’s impossible for none of that to be internalized. For a victim on a university campus who is trying to take issue with the finding of their Title IX case, there are all these different people who might tell them the university made the right decision, that the victim is wrong, and blaming them. All of these people might give the university the benefit of the doubt, and that really does leave the victim feeling like “If I keep talking about this, then people are going to keep telling me it’s my fault.” They can’t get validation that it’s not their fault. It’s hard for me to imagine that anybody is really self-assured enough to be certain it wasn’t their fault, especially in the moment.

It turns into this sort of hostility towards other survivors. Some of the school administrators at Western University were survivors, and not all of them were taking the sides of survivors. Some of them were hurting survivors, blaming survivors in ways that really echo the public discourse we saw around Depp v. Heard, or what we’re seeing right now around Blake Lively. This idea that these survivors have too many resources on their side, it’s unfair they’re getting support. “Why didn’t I get that kind of support?” There was this other kind of rhetoric that was especially common among conservative white women, which was “I didn’t get support because of these other bad victims who didn’t do everything right, and so then when I did everything right, nobody would hear me, because victims as a whole don’t have credibility.” We hear it as a conservative talking point among men really often, where these women who make “false allegations” are ruining it for the real victims. I think a lot of people believe that. And for victims who have internalized this thinking, they do try to police other victims. If they started with trying to change the structure, they probably weren’t successful, and they probably got a lot of pushback. So turning to other people who feel like they’re on an equal playing field with you, as opposed to being more powerful than you, I think people make a pragmatic decision that it will work better.

But the problem is that there is no such thing as a perfect victim. When people say other victims are the reason they didn’t believe you, well that’s not honest. They don’t believe any of the victims. I think a lot of feminists, including myself, want to believe that sexual violence is a radicalizing moment for victims, that if we experience violence at the hands of the patriarchy, then we will realize the patriarchy is not serving women. But if that was how patriarchal violence worked, we would have had something other than a patriarchy a really long time ago. The reason we see misogynists turn to violence is because it suppresses political action. One of my big concerns after this project is when I would watch victims go through not only the horror of sexual violence, but then the horror of institutional betrayal, I would see that afterwards they held more conservative gender ideologies. I do worry about what that looks like long-term.

KT: That feels like sort of the missing puzzle piece that I’ve been looking for. It helps explain this massive barrier in the survivor justice space.

NB: One of the research questions for my academic dissertation was “How does going through the Title IX process shape survivors’ gender ideologies and legal ideologies around gender?” I interviewed victims when I could at the beginning and end of their case, so I could see their transformation in their expectations around the Title IX process. A lot of the time, the survivors didn’t seem aware they had changed. I would ask some of the same questions, and one of them was “What do you think survivors in your situation deserve?” They would go from in their first interview saying things like “I deserve for my perpetrator to be removed. I deserve safety. All the women on this campus deserve safety, and we deserve a school that protects our education.” By their second interview, they would say things like “Well, I don’t really think I deserve anything,” and “I think that everybody deserves their rights, including me and my perpetrator. We all deserve due process.” You could see that they were really starting to adopt this legal framing the university was using as justification for not helping them. You could see this slippage in what I would call their feminism.

KT: What are some ways that people can educate themselves and others? How can they be in solidarity with and seek justice for survivors?

NB: I think that the sociological approach to understanding sexual violence is inherently optimistic, because a big part of the research is the realization that the trauma of sexual assault is not just from the perpetrator, it's from the way everybody else treats the victim after the violence is over. There is something really hopeful in knowing that every single person in a survivor’s life who supports them and focuses on protecting them and trying to keep as much as their life intact as they can, that can actually make sexual violence less traumatic.

Everybody takes the side of survivors up until the perpetrator is someone they know and love. When we find out that the perpetrator is someone we care about, we still need to believe survivors, and we need to be willing to cut ties with the perpetrators. One of the things that was causing the victims in this book a lot of pain and strife was that they lost their entire social network. Everyone in their lives, including their university, but also their friends and sometimes their families, were taking the sides of their perpetrators. Perpetrators are going to be fine, and if they lose a couple of friends, they will have no problem making new ones. That's not true for victims, and it's not fair that victims should be the ones who have to lose their friends and their social networks due to decisions their perpetrators make. If I could urge everybody to do one thing, it would be the really simple thing. When the violence involves two people you know, pick the victim, and you can't have both. There's no such thing as neutrality. There is no world in which you can have both people. Pick the victim.