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Excerpted From: Nancy Chi Cantalupo, And Even More of Us Are Brave: Intersectionality & Sexual Harassment of Women Students of Color, 42 Harvard Journal of Law & Gender 1 ( Winter, 2019) (449 Footnotes) (Full Document)


NancyChiCantalupoIn 1983, Drs. Akasha (Gloria T.) Hull, Patricia Bell Scott, and Barbara Smith titled the first Black Women's Studies reader All the Women Are White, All the Blacks Are Men, but Some of Us Are Brave. When it comes to sexual harassment (including sexual violence), regardless of field or industry, this title is often--unfortunately, or fortunately as the case may be--just as true today as it was over 35 years ago. Social media and other campaigns such as #MeToo, #WeKnowWhatYouDid, and Times Up have certainly startled and inspired the nation and the globe with the bravery of survivors who are speaking out against sexual harassment. On college campuses, the visibility of such courage is at least five years older than #MeToo, as student survivors and allies began breaking their silence on a national scale in large numbers in the spring of 2013. Organizing primarily under the banner of Title IX of the Educational Amendments of 1972 (“Title IX”), the groundbreaking civil rights statute that prohibits sexual harassment as a form of sex discrimination, these student survivors and their allies focused on sexual assaults by peers and quickly turned previous, primarily local protest efforts into a national movement, using social media and more traditional techniques to connect activists and show patterns that transcend single campuses.

 Beginning in 2014, this Title IX civil rights movement has generated an enormous amount of policy activity and protest, with the federal government's position on these issues changing with the new presidency in early 2017. The most direct change occurred when the U.S. Department of Education's Office for Civil Rights (“OCR”) issued a “Q&A on Campus Sexual Misconduct” (“Interim Guidance”) authorizing schools to adopt several policies that are facially unequal and/or run contrary to at least twenty-two years of consistent Title IX enforcement by OCR. For instance, the Interim Guidance allows schools to give accused students, but not student victims, the right to appeal the result of a disciplinary proceeding change that at least one major university has adopted.

 In addition, since at least the mid-1990s and through both Democratic and Republican administrations, OCR directed schools to use a preponderance of the evidence standard across all statutes that OCR enforces. Thus, before September 2017, schools had to use a preponderance of the evidence standard in both sexual and racial harassment cases. The Interim Guidance departs drastically from previous OCR enforcement by authorizing schools to adopt a “clear and convincing evidence” standard of proof in “campus sexual misconduct” cases. The Interim Guidance says nothing about OCR changing its requirements for racial harassment, however, so the preponderance standard remains in place in racial harassment cases. As such, the Interim Guidance singles out sexual harassment victims for differentially less protection than victims of racial or other kinds of discriminatory harassment.

 The guidance thus leads immediately to this Article's central questions: if a school has adopted different evidentiary standards for sexual and racial harassment, what happens when a woman of color is sexually and racially harassed? What standard will be used if she experiences racialized sexual harassment or sexualized racial harassment? Will she be a woman first or a person of color first? Which of her identities will the school declare to be the important one? These questions are fundamentally “intersectional” and “multidimensional” ones, in that they recognize the multiple communities with which women of color identify or may be identified, as well as the discrimination we likely face as a result of that identification.

 It borders on baffling that the Interim Guidance's drafters could create such an immediately obvious intersectional legal conflict while appearing just as obviously unaware of having done so. Is it simply that women students of color are so invisible to these officials that the effects of this conflict on these students never occurred to them? Or perhaps it is possible that these officials simply do not care about treating sexual harassment and violence victims in a different and unequal way from racial harassment victims. A final possibility is that this intersectionality problem signals an intention to remove the requirement to use the preponderance standard from OCR's enforcement of racial and other discriminatory harassment prohibitions--to use the evidentiary standard for sexual harassment as a “right-wing 'beachhead,”’ as referenced by Professor Anne McClintock, for a wide-ranging attack on civil rights more generally.

  This erasure is particularly ironic because many years of research have confirmed that women of color are disproportionately targeted for sexual harassment. Moreover, race and gender discrimination are so intertwined in sexual harassment that finding redress and remedies for women of color under traditional civil rights legal doctrine, which tends to address only one form of discrimination at a time, is extremely challenging. But as already noted, and as documented more extensively in a White Paper signed by 115 law professors (and counting), traditional civil rights legal doctrine at least follows the same standards of proof. Thus, as hard as it is to address women of color's intersectional experiences under traditional, consistent, and parallel civil rights standards, how much more difficult will it become when those standards are no longer consistent and schools are confronted with the intersectional questions posed above?

 This Article seeks to address these difficult questions, and to reverse the erasure of women students of color that they represent, by proceeding in four parts.

In Part II, I briefly review how a particular narrative regarding race and sexual harassment in education became dominant.

 Next, Parts III and IV together detail how using an intersectional analysis surfaces the narrative currently rendered invisible by the dominant anti-intersectional one.

Part III collects research and analysis by scholars working in the workplace and criminal contexts, utilizing logical reasoning to assert a common hypothesis explaining why women of color are more likely to be targeted for sexual harassment. In doing so, it discusses the causes and contributing factors that are rooted in women of color's greater general vulnerability deriving from circumstances such as a greater likelihood of living in poverty, being seen as a target by a larger number of potential harassers, and/or being subjected to racial, sexual, and intersectional racial-sexual stereotyping.

Part IV then analyzes the evidence amassed over decades of research conducted on race and sexual harassment to see if Part III's hypothesis is borne out in empirical data and observation. It first draws from the quite limited research and scholarship addressing sexual harassment against women of color in higher education, and expands to research on harassment in the workplace and to sexual violence that is or should be addressed by the criminal justice system.

 The Logic Story and the Evidence Story in Parts III and IV show that, contrary to the dominant narrative's erasure of women students of color as victims of sexual harassment, or indeed as being capable of such victimization at all, these students are likely more vulnerable to such harassment than white students are.

 Parts III and IV also expose another intersectional story embedded in the larger phenomenon of disproportionate harassment of women of color: of all women of color, multiracial women (women who self-identify as having ancestors from two or more “traditional” racial groups) appear to be the most vulnerable to sexual harassment. Data from the National Intimate Partner and Sexual Violence Survey (NISVS) indicate that U.S. multiracial women experience sexual harassment 4.8% to 32.2% more than any other racial group of cisgender women or men (data for transgender individuals was not collected), but the NISVS itself indicates that almost no research and analysis has further explored that data point. The Interim Guidance provides a disturbing example of what can result from gaps in needed intersectional research and analysis, but a full discussion of the implications of the NISVS data on multiracial women is beyond the scope of this Article. Therefore, I begin filling the multiracial gap in the scholarly literature in a separate article that is in progress.

 Finally, Part V considers the Logic and Evidence Stories in conjunction with recent events, including but not limited to #MeToo, the Women's Marches, and the Interim Guidance, clearly demonstrating the need for new, specifically intersectional interventions to address sexual harassment. Part V explains how the methodology of Social Justice Feminism provides such an intervention, returning to the intersectional legal conflict created by the Interim Guidance and suggesting next steps for combatting intersectional racialized sexual/sexualized racial harassment. As a baseline for improvement, OCR needs to return to consistent enforcement of Title IX with other civil rights statutes. However, more is required than simply returning to the pre-Interim Guidance status quo. Thus, Part V also recommends steps that put women students of color's experiences at the center of our legal responses to sexual harassment--exactly the opposite of the Interim Guidance's erasure. Doing so will require us to learn about those experiences, which will require creating legal supports by: (1) appropriating government funds for research on the sexual harassment experiences of women students of color and other intersectional student populations; and (2) creating new and additional transparency requirements for schools both to collect and to disclose demographic data about student victims and accused students.

 [. . .]

 In so many ways, we are living in a remarkable moment, with the recent law and politics of women's lives marked by both incredible lows and incredible highs, and women of color's experiences and courageous activism at the center of it all--even when the general public does not appear to know it. The struggle to end sexual harassment has been no different, characterized not only by survivors and their allies' brave activism, but also by intense backlash against that activism.

Sexual harassment in education presents some differences from the other lows and highs, due in part to the fact that both anti-harassment activism and backlash to it on college campuses predated the 2017 Women's March, #MeToo, and many other “capital-R Resistance” efforts getting most of our attention at this moment. In addition, unlike the way that both the Women's March and #MeToo arguably incorporated relatively early women of color's voices, leadership, intersectional analyses, and Social Justice Feminist strategies, the public conversation about campus sexual harassment became quickly dominated by voices that were downright anti-intersectional, leading to a narrative that nearly completely erased women of color from the public's images of this harassment and violence.

 This Article has sought to add to others' work in exposing such narratives as anti-intersectional and to suggest Social Justice Feminist interventions that can move such narratives in a more intersectional and more accurate direction. Contrary to the dominant narrative that implies women students of color are never harassed, the data and analysis I have drawn from my co-authored Utah Law Review study provides one piece of direct evidence that women students of color are targeted more often for sexual harassment. In addition, both the Logic Story and the Evidence Story detailed in Parts III and IV provide ample indirect evidence supporting the direct evidence from my Utah Law Review data. Moreover, even if all of this evidence were insufficient to establish that women students of color are more vulnerable, no evidence exists that shows women students of color experience such infinitesimal rates of sexual harassment that it is in any way legitimate to erase them from the conversation.

 As this suggests, establishing heightened vulnerability of an entire group is not necessary to recognize the importance of intersectional racialized sexual harassment, or indeed any discriminatory harassment or violence. Nevertheless, from an intersectional perspective, because such harassment translates into distressing inequalities of educational opportunity and many women students of color already face educational inequalities linked to gender, race, and other marginalizing experiences, this harassment has the potential not only to add the disadvantages of two forms of discrimination together but to multiply those disadvantages.

 Indeed, social science is increasingly documenting the enormous costs to student victims, confirming that sexual harassment subjects its victims to trauma and to the negative health, educational, and economic consequences of that trauma, which are likely to disproportionately impact women students of color because they are already disproportionately vulnerable. For instance, students of color are more likely to be first-generation college students and/or immigrants, including “DREAMers” and other undocumented students. In addition, women students are more likely to have greater family responsibilities, including to their own children. These lesser resources and greater responsibilities mean that these students have less time and space to recover from trauma, creating uniquely higher barriers for these particular women survivors of color to receive and achieve an equal education. As if these short-term, supposedly temporary inequities were not bad enough, they very likely translate into long-term diminished employment opportunities and lifetime lower earnings and socioeconomic status, especially when trauma goes unaddressed--as is more likely to happen for women students of color. These kinds of negative effects on equal educational opportunity are at the center of concern for all of the laws protecting civil rights in education. Thus, the intersectional heightened vulnerability of women students of color requires us as a society and as a nation to re-establish the consistent and equal enforcement of our civil rights laws generally, beginning with OCR eliminating the recently created intersectional legal conflict regarding the preponderance of the evidence standard.

 Moreover, we need to intervene more directly in the dominant, anti-intersectional narrative, because failing to use an intersectional lens is dangerous to achieving both gender and racial justice. Interventions must prioritize the Social Justice Feminist strategies of not just including but actually focusing our research on the sexual harassment women students of color experience, including by appropriating money for such research and passing laws that require schools to collect and disclose demographic information about sexual harassment in the campus community.

 As Professor Crenshaw herself has pointed out, “if women and girls of color continue to be left in the shadows, something vital to the understanding of intersectionality has been lost.” The Interim Guidance demonstrates that women and girls of color are continuing “to be left in the shadows,” and that “something vital to the understanding of intersectionality” has indeed been lost. Ultimately, by using the methodology of Social Justice Feminism, we can address this intersectional problem with an intersectional solution. 

 Associate Professor of Law, Barry University Dwayne O. Andreas School of Law;