LGBTQ Youth and Bullying The project aims to gain insights on the extent of LGBTG youth and bullying in schools and the community. The civil rights VII Act prohibits any form of discrimination, harassment based on gender, religion, race, sexual orientation or language. The issue of sexual orientation is a personal choice and thus needs to be respected. There are reports of LGBTQ youth experiencing harassment, discrimination and violence, and bullying which contribute to psychological and emotional stress. The topic is of interest because it is a gray area that has a lot of misinformation, prejudice and not well understood. The Center for Diseases Control and Prevention indicate that there are 34% of LGBTQ express being bullied in school, while 28% LGBTQ report experiencing cyberbullying. Statistics estimate that there are 3.2 million in total in the United States. The LGBTQ is a large population and needs to be protected by making people more tolerant through information. The benefit of raising awareness will help the population become aware that it is illegal to harass, bully or discriminate against people who are LGBTQ. The individual rights are protected by law and any violation one risks prosecution. The rights of the LGBTQ youths must be protected to prevent the youths from being exposed to psychological and emotional challenges that expose the group to suicide and homelessness. The schools and other public places where LGBTQ youth visit, needs to have policies that promote tolerance, where the youth feel safe. Every life matters and all rights are equal under the law; therefore, all persons protected under the law. Any violation of the law is an offense. LGBTQ Youth and Bullying (Literature Review) LGBTQ youths have been dealing with issues such as harassment, intimidation, and bullying regularly. These issues still exist in our communities today, in which people of the LGBTQ community excessively experience verbal and physical maltreatment due to their cultural orientation, which impacts negatively on their health and welfare. Several authors have viewed this issue in different ways such as its negative outcomes, reasons of happening, community reactions and solutions. The impact is evident with increased depression and suicide rates amongst LGBTQ youths. In a review of specific health risks for LGBTQ youth in a school setting indicates that school nurses can help in reducing health disparities among students through an understanding of the psychological risks associated with bullying (Perron et al. 117) According to the article, school nurses can advocate for fair and receptive social school culture. Nurses must work with counsellors and management to develop a policy plan for all students who seem actively suicidal. Educating school workers and families and the provision of quick and appropriate recommendations for psychological care is also needed (Perron et al. 117). The consequences of bullying in schools continue to attract increasing attention. Using thematic narrative analysis, the authors examined the perception of the high school students regarding of bystander behaviour. The study found that this kind of group enacts a range of responses which include passive avoidance, supporting the victims, or joining the bullying events. Bystanders react in different ways to harassment based on the class levels enrolled (Williams et al. 1264). Bystanders’ decision to intervene could be catalysed by fear, individual characteristics, relationships, and seasonal experiences. Lack of care or notice of happenings is described by the tendency to keep off from possible negative feelings linked to witnessing bullying. The concept of bystander apathy is related to moral disengagement, and bystander disassociation Disengagement makes the bystander deny their presence in the observed violent behaviour, thus absolving from any participation. Education level or aspirations and bystander curiosity can impact on bystander responses to bias‐based bullying (Williams et al. 1270). The current discourse on campus resolution of gender violence brings two different opinions. The feminists battle for more responsiveness to sexual violence and university processes which address the needs of the victims while critics argue that schools have overcorrected thus discriminating against suspects. Ridolfi-Starr examined the consequences of lacking transparency in college adjudication of reports related to gender violence. Contemporary approaches to investigate and resolve sexual and courting violence on colleges are ineffective. The accused and accusing individuals have no confidence in the procedures and sense discrimination from the results of the investigations. A robust legislative directive is required for increased transparency. The accessibility of information related to sexual violence will help in identifying systemic policy issues and will guarantee unbiased conduct among the affected parties. Lack of strong and developed regulations for transparent and responsible reporting means institutions will continue to violate the student’s right and own policies with impunty (Ridolfi-Starr 2181). Bullying, harassment, and victimization in schools have become common among the LGBTQ youths despite protective efforts to combat the behaviors. However, heterosexual and cisgender colleagues are less likely to be bullied, harassed or victimized. The authors argue that despite having anti-bullying laws and policies, states and counties have failed to enact laws which address the needs of LGBTQ scholars in public. Legislation such as “No Promo Homo” for instance helps in promoting bullying amongst the LGBTQ community while maintaining the heteronormative systems of harassment active (Abreu et al. 328). The study argues that school counselors have the responsibility of engaging all the stakeholders to advocate for all the students. Counselors can effectively intervene in the best interests of LGBTQ students to address issues of social justice. The bests way to address bullying could be establishing a professional development training which addresses experiential activities, showcases oppressive experiences and inclusive classroom lessons and resources for the LGBTQ students (Abreu et al. 328). Bullying in school is seen as an oppressive way of interpersonal conflict affecting the welfare of young people. However, some groups such as LGBT are at greater risks of experiencing bullying in schools. According to Berry, bullying among the LGBT group comes from hostile climate accruing fuelling from cultural antagonism against the individuals. Similarly, oppressive policies and practices cultivate the hostile environment. Study shows that bullying affects individual educational capacity and trumps progress in school. Belong to LGBT remains a stigmatizing thing for young people. It calls for negotiations on the best approaches to address bullying in schools. Many LGBT learners continue experiencing harsh school environments. Sustainable training to instructors and other staff usually make the LGBT students feel safer and hence better academic performance (Berry 510). The success of LGBT students to address the troubling problem largely depends on the school climate that recognized their identities, education, and lives. Works Cited Abreu, Roberto L., et al. “LGBTQ Youth Bullying Experiences in Schools: The Role of School Counselors Within a System of Oppression.” Journal of Creativity in Mental Health, vol. 11, no. 3-4, 2016, pp. 325–342. Berry, Keith. “LGBT Bullying in School: A Troubling Relational Story. Wicked Problems Forum: Freedom of Speech at Colleges and Universities.” Communication Education, vol. 67, no. 4, 2018, pp. 502–513. Perron, Tracy, et al. “LGBTQ Part 2: Examining the Health Disparities and Psychological Struggles Experienced by LGBTQ Youth.” NASN School Nurse, vol. 32, no. 2, 2017, pp. 116– 121. Ridolfi-Starr, Zoe. “Transformation Requires Transparency: Critical Policy Reforms to Advance Campus Sexual Violence Response.” Yale Law Journal, vol. 125, no. 7, 2016, p. 1. Williams, Amanda J., et al. “High School Bystanders Motivation and Response during Bias‐Based Bullying.” Psychology in the Schools, vol. 55, no. 10, 2018, pp. 1259–1273. Received: 22 January 2018 | Accepted: 24 July 2018 DOI: 10.1002/pits.22186 RESEARCH ARTICLE High school bystanders motivation and response during bias‐based bullying Amanda J. Williams1 1 | Courtney S. Banks2 Loudoun County Public Schools, Virginia 2 Department of Psychology and Philosophy, Sam Houston State University, Huntsville, Texas 3 Department of Educational Psychology, Texas A&M University, College Station, Texas | Jamilia J. Blake3 Abstract Bias‐based bullying focused on sexual orientation or gender identity in schools has significant negative implications for the academic, social, and emotional well‐being of students who identify as lesbian, gay, or bisexual, or who are Correspondence Jamilia J. Blake, Department of Educational Psychology, Texas A&M University, MS 4225, College Station, TX 77843. Email: jjblake@tamu.edu perceived to behave in gender nonconforming ways. Despite empirical support for the influence of bystander behavior can have on school bullying, information about bystander behavior during bias‐based bullying remains limited. Using a thematic narrative analysis, this study analyzed high school students’ perceptions of bystander behavior in their school. Results suggest bystanders are observed to enact a range of responses that fall into three categories: (a) passive avoidance, (b) victim support, or (c) joining the bullying situation. Furthermore, the motivation of bystanders was described within the themes of (a) fear, (b) individual characteristics, (c) relationships, and (d) personal experience. By drawing from the daily lived experiences of adolescents, the current study offers greater insight into youth perspective on how future strategies could address bias‐based bullying in schools. This study is foundational to increase the ecological validity of efforts to quantify bias‐based bullying. KEYWORDS bullying, bystanders, high school, LGBT 1 | INTRODUCTION Bullying behaviors in school have continued receiving increasing attention over the last decade in terms of prevalence and consequences. Youth who identify as a sexual minority or are perceived to behave in gender Psychol Schs. 2018;55:1259–1273. wileyonlinelibrary.com/journal/pits © 2018 Wiley Periodicals, Inc., | 1259 1260 | WILLIAMS ET AL. nonconforming ways, are more likely to be bullied and face more negative outcomes resulting from bullying, relative to their heterosexual peers (Fedewa & Ahn, 2011; Musu‐Gillette, Zhang, Wang, Zhang, & Ouderkerk, 2017; O’Malley Olsen, Kann, Vivolo‐Kantor, Kinchen, & McManus, 2014; Toomey, Card, & Casper, 2014). For the purpose of this study, bias‐based bullying is defined as encompassing all forms of bullying behavior directed at the actual or perceived sexual orientation and/or gender identity and expression of the target student. Although bias‐based bullying as a term can include multiple forms of bully based on identity, this study is specific to sexual minority or perceived gender nonconforming students as done in other research studies (e.g., Newman, & Fantus, 2015). By utilizing the term “bias‐based” as opposed to “homophobic,” this study is inclusive in its consideration of all forms of bullying that is based on perceived or actual sexual orientation or gender identity. Research by Gay Lesbian Straight Education Network (GLSEN), specifies over 74% of the sample reported verbal harassment at school for their sexual orientation and 55% for their gender expression (Kosciw, Greytak, Palmer, & Boesen, 2014). Thirty‐six percent were physically harassed for their sexual orientation and 22% for their gender identity. Data from the Centers for Disease Control & Prevention (2017) indicate 35% of their lesbian, gay, bisexual, and transgender (LGBT) self‐identified youth sample reported being bullied in school, while 28% indicated being bullied online. Consequences of bias‐based bullying include increased suicidal attempts, poorer ratings of school connection, and increased school dropout rates (Day, Snapp, & Russell, 2016; Fedewa & Ahn, 2011). Keeping high rates and significant consequences in mind, it is important to focus on methods to reduce bullying in schools, one of which is through bystander intervention. 2 | B Y S T A N D E R S O F B I A S‐B A S E D B U L L Y I N G Although limited, current research about bystander intervention during bias‐based bullying supports bystanders as a promising avenue for reducing bullying directed at LGBT students (Espelage & Swearer Napolitano, 2008; Potter, Fountain, & Stapleton, 2012). Bystander responses are highly influenced by friendships with LGBT peers, sensitivity to social justice, and altruism—all characteristics predictive of active bystander involvement in biased‐based bullying situations directed at LGBT youth (Dessel, Goodman, & Woodford, 2017; Poteat & Vecho, 2016). Freis and Gurung (2013) utilized a group communication function in a popular social networking site to evaluate bystander reactions to bias‐based bullying toward sexual orientation. They used confederates, one to pretend to identify as gay, and one to act hatefully toward the confederate identifying as gay. Results suggested that high empathy and extroversion resulted in more direct bystander action against the bullying, but that positive attitudes toward homosexuality were also important (Freis & Gurung, 2013). They also found that the majority of participants did attempt some form of intervention, mostly indirect, by changing the subject of discussion. The higher numbers of bystander intervention noted in their study might be the result of the anonymity associated with online interactions and begs the question as to whether these findings would hold during face‐to‐face encounters of bias‐based bullying. An important step to understand bystander responses is to know how bystanders experience and perceive bias‐ based bullying. Using self‐report methods, Wernick, Kulick, and Inglehart (2013) evaluated the influence of peer responses to homophobic language had on bystanders’ intentions to intervene. Results indicated that witnessing the behavior of others (e.g., supporting the victim by telling the bullying to stop) had a small but significant impact on bystander intention to respond (Wernick et al., 2013). Another bystander study used video vignettes to measure perceptions of bully, victim, and bystander behavior during different types of bullying, including one scenario involving bias‐based verbal bullying (Johnson et al., 2013). Johnson and colleagues found that a majority of the students were accepting of biased‐based bullying behavior as “just a joke” even though other forms of bullying, not related to sexual orientation or gender, were deemed unacceptable. It seems that bystander perceptions of other bystanders, as well as the type of bullying witnessed, has a profound impact on determining if bullying will be interrupted. Understanding how student bystanders perceive bias‐based bullying is an important step toward the development of adequate intervention methods. WILLIAMS ET AL. | 1261 3 | INCREASING ME THODOLOGICAL DIVERSITY Developing a more comprehensive understanding of bystander behavior will benefit significantly from obtaining individual perspectives about personal experiences with bullying and determining what factors influence willingness to intervene. Qualitative methodology is one useful technique to understand specific bystanders’ experiences and individual perspectives of bullying. With general forms of bullying (i.e., no specific motivator for the bully was explored), for example, Thornberg (2007) found that bystander responses was based on perception of danger, personal level of responsibility, reactions of others, personal feelings of time constraints (e.g., students in a rush to get to class are less likely to stop and help), and responsibility diffusion. Students who reported not helping victims were more likely to minimize the impact the bullying had on the victim or report no knowledge of what occurred (Thornberg, 2007). Thornberg and Knutsen (2010) developed a theoretical understanding of bystander behavioral attributions during general bullying by utilizing grounded theory, a qualitative analytic strategy that develops theories about specific phenomena based on the views of participants knowledgeable about the topic (Creswell, 2006). From their work, they identified five main categories of behavioral attributions that influenced bystanders including, blaming the bully, victim, peers, school environment, and human nature. Bystanders in this study were most likely to attribute bullying behavior to the bully, reducing their willingness to intervene because they (a) did not want to draw attention to themselves and (b) felt certain that someone else would help (e.g., diffusion of responsibility; Thornberg & Knutsen, 2010). Although these findings enhance our empirical knowledge of bystander experiences with general forms of bullying, bystander experiences, specific to the bias‐based bullying discussed within this study, remain largely unexplored. Specific purposes of bias‐based bullying (e.g., based in discrimination) could influence bystander behavior in ways not yet captured by the current state of the literature, given that sexual and gender minority victims tend to experience more negative results of bullying compared to heterosexual and gender conforming counterparts. 4 | ST UD Y PU R POS E Despite the depth of literature available about bystander behavior in general forms of bullying, there is a limited consideration for bystander behavior during bias‐based bullying directed at LGBT and gender nonconforming youth. The purpose of the current study was to expand empirical understandings of the experiences, expectations, and behavioral motivations of youth who witness bias‐based bullying at school. Providing more in‐depth depictions of individual lived experiences within real‐world bias‐based bullying will promote understanding of the experiences LGBT students may undergo. Given that the research reviewed here indicates bias‐based bullying occurs more frequently (Musu‐Gillette et al., 2017), greater empirical understanding of this bullying has the potential to inform methods necessary for reduction. 5 | METHODS 5.1 | Participants Fourteen high school students (ages 14–18 years) were recruited to complete individual interviews until qualitative isomorph, or information redundancy (Lincoln & Guba, 1985). All students who volunteered to participate in the research provided both parental consent and student assent to participate, so all were included in the analysis. Participant demographic information (see Table 1) for age, grade, gender, and race were recorded using participant’s chosen labels. Sexual orientation and bullying roles were coded during Wave 1 of the analysis process, based on explicit statements from participants and the stories they shared 1262 | WILLIAMS ET AL. T A B L E 1 Student demographic data Variables Frequency Percent Gender identity Male Female Cis‐gender female 6 7 1 43 50 7 Grades 9th 10th 11th 12th 3 5 3 3 21 36 21 21 Age (years) 14 15 16 17 18 4 4 2 2 2 29 29 14 14 14 Ethnicity White African American/Black Hispanic/Latino 5 1 8 36 7 57 Sexual orientation Straight Lesbian/gay Not provided 2 1 11 14 7 79 Bully role Bystander Bully Bystander/victim Outsider 6 1 5 2 43 7 36 14 14 100 Total Note. Student bullying role and sexual orientation were not explicitly reported. They were coded based on student reports throughout the interview. about bullying. Students who indicated that they had been bullied (victim), had bullied (bully), had witnessed bullying (bystander), or had never observed bullying first hand but was aware of bullying incidents that occurred via a third party source (outsider), were categorized accordingly based on empirical data available (Salmivalli, Lagerspetz, Bjorkqvist, Osterman, & Kaukiainen, 1996). In terms of recruitment, six participants came from high school after school clubs, three from community organizations, and five via distribution of the community flyer or word of mouth (Table 2). Participants were recruited via after‐school program leaders and through local community organizations. Upon obtaining parental consent or student assent, participants were interviewed for an hour at a location where the student was most comfortable, and they received a $10 gift card for their time. Participants were asked to provide an email address at the start of the interview so they could review a one‐page summary of the interview later, and of those participants who provided an email address (n = 11), five responded to the follow‐up interview review request; none made any changes. For accuracy, interviews were audio recorded, with participant permission, and pseudonyms were used in reporting to protect the identity of all participants. Audio recordings were transcribed verbatim for coding and analysis (Ollerenshaw & Creswell, 2002). WILLIAMS | ET AL. 1263 T A B L E 2 Bias‐based bullying bystander responses and motivations examples Primary themes Subtheme Quote examples Behavior: Victim support Demand bully stop “what I really want to do is say: “[victim] is a guy, I’m sorry but you keep saying she and they are not a girl. Stop it” “I feel like you gotta just tell [the victim] to be yourself, even if people can’t accept it” “[bystanders] have to stay calm, try not to go off on them [or you get in trouble]. Calm the victim down and say “it is okay, just ignore them” “You could tell other people watching more about the gay community. That is what we do here at [name removed]” Verbally praise victim Calm victim directly Educate other bystanders Behavior: Bully support Laugh or join Question victim Video record [the bystander] would probably join in with the situation to try to make the person being bullied feel belittled” “People would come ask about [their sexual orientation] after [the bully] left. Like seeing if it is true" “They are recording it because they think that it is funny and that way they can share it with the friends that you know, aren’t there” Behavior: Passive avoidance N/A “they were just kind of there”“I think part of the use of the word bystander is that, because usually people don’t do anything” Motivation: Fear …of Peers “[he] thinks if anyone had said anything it would be committing social suicide… [they] would have kept going, and have started pick on [the bystander] then too” “It's protecting themselves. Self‐preservation has a lot to do with it” “When you tell the teachers, they say “we don’t know what to say to you”… they just don’t know how to respond… and you don’t want to out anyone” Self‐preservation …of school staff N/A “I think people, some I guess, are oblivious a lot of people just go about their business don’t really realize that it's bullying” Motivation: Relationships N/A “if it is [his] friend, [he’ll] help … otherwise, probably would not do anything” Motivation: Individual characteristics 5.2 | Measures Data were collected through a narrative inquiry via individual interviews. Each student participated in a 60‐min interview designed to elicit detailed information about (a) their experiences witnessing bias‐based bullying at school, (b) their normative perceptions of sexual orientation and gender behavior, and (c) factors they feel influence their and other bystander’s behavioral choices were examined. The interview questions developed by the research team focused specifically on these three domains. Thirteen of the interviews were audio recorded and transcribed verbatim before analysis. Due to technical failure, one interview was not recorded. Instead, detailed notes were taken by the evaluator and the participant was asked to review the notes. The interview protocol used for the study is included in Appendix. 5.3 | Analysis Thematic narrative analysis is an interdisciplinary tool that evaluates narratives for related themes in an effort to organize participant experiences (Chase, 2007). Narrative analysis allows for documentation of an individual’s 1264 | WILLIAMS ET AL. emotional and cognitive interpretation of situations as well as delineation of significant events from the participant’s perspective in an effort to shed light on specific psychological and social realities (Crossley, 2007; Reissman, 2008). The narrative approach assisted in constructing a typology of bystanders’ experiences through the reenactment of authentic events identified from participants’ perspectives (Frank, 2002). This analytical approach allowed for more in‐depth considerations for how student bystanders perceive bias‐based bullying. Four waves of coding were conducted with each interview by the primary author, starting with an initial read‐ through of each transcribed interview to understand each participant’s individual experiences (Crossley, 2007). During the initial reading of the interviews, member checks were coded throughout the interview as either positive or negative. When students indicated that the evaluator summary was wrong, they were asked, during the interview, to provide the correct summary. If a member check was negative, coding only used the corrected response provided by the participants. In vivo coding methods followed as initial codes of the data. In vivo coding focuses on capturing the individual voice of each participant by utilizing their words to classify the data (Saldaña, 2013). A holistic coding method was then used to create general themes within each participant’s narrative (Dey, 1993), which sets the groundwork for later, more in‐depth analysis of narratives (Saldaña, 2013). Applying this technique created units of data within each narrative that organized bystanders’ experiences in a clear manner for the next phase of coding. The final stage of data coding was pattern coding, which grouped participants’ experiences into themes. This method acts to develop meta‐codes by grouping previously found themes (i.e., holistic codes) into content themes that fit together (Miles & Huberman, 1994). Pattern coding is ideal for thematic analysis because it creates the final themes to be explored (Saldaña, 2013). Throughout the coding processes, the trustworthiness of data was assessed to ensure the data accurately represents the reality of the participants. Although exact terminology can vary, the core concepts of trustworthiness are based on the idea of accurate data collection and interpretation that are comparable to quantitative concepts of reliability and validity. Primary evaluations of trustworthiness were through the triangulation of three coding methods described above, and through coding member checks with participants (Krefting, 1991; Lincoln & Guba, 1985). The final evaluation of trustworthiness, application to other contexts (Lincoln & Guba, 1985) was not possible due to resource and time constraints (e.g., constraints of time and institutional limitations on data collection). 6 | RES U LTS 6.1 | Behavior responses Results of coding each participant’s reported experiences provided themes, discussed here, which offer insight into the lived experiences of high school students. The focus of this study is to specifically consider perceptions of bystanders’ behaviors (i.e., what they are observed to do), and possible motivations (i.e., why they chose a certain action). To start, potential behaviors a bystander could enact ranged from active participation to inactive avoidance. Participants described bystander behavior as either (a) passive avoidance, (b) victim support, or (c) joining the bully. 6.1.1 | Passive avoidance The primary bystander response in the face of biased‐bullying discussed was a passive observation or walking away from the bullying. Bystanders were often described as passive and silent when they witnessed bullying, potentially watching, but frequently walking away. Cameron, a soft‐spoken female who had been bullied, described bystanders as passive in that they “kind of just ignore [the bullying]. They don’t really do anything.” Her personal victimization experience left her feeling bystanders do not involve themselves in bullying situations. Like Cameron’s experience, when asked how people observing bullying behaved, Skyler, a 15‐year‐old, felt it was extremely obvious that a bystander would be passive. Having heard the term bystander from the interviewer WILLIAMS ET AL. | 1265 during her IRB‐approved introduction speech, when asked how people witnessing bullying behaved he stated, “Part of the use of the word bystander is, well, that word is used because usually, people don’t do anything.” To him, the label itself conjures the expectation of passive observance, so much so that any witness labeled a bystander would literally “stand by” and “not actually pursue anything to make them stop.” Ashely, who spoke frequently of her personal victimization, agreed that bystanders are passive, but added they would at least think about the bullying. She said bystanders “just look at the bullying, wondering about, “what is going on,” like observing and not even getting into it. Just wondering what is going on, I guess.” In her experience, a bystander is passive but fully aware of what is going on. This is contrary to her later statements that bystanders are clueless but captures the thematic narrative that a common bystander behavior is to remain a passive observer of the bias‐based bullying. 6.1.2 | Victim support The next most common bystander response was to take actions that support the victim. Behaviors classified under victim support included (a) demanding a bully stop, (b) verbally praising or supporting the victim, (c) calming the victim directly, or (d) educating other bystanders. The most common victim support response was actively defending the victim by demanding a bully stop the behavior. This included instances of “telling a bully off” directly to the bully's face. Trevor, a 16‐year‐old who prefers to focus on his future military career rather than high school, mentioned he observed bystanders telling “the bully to stop what they were doing.” He stated that whenever he saw bias‐based bullying occur, a third person would step in and tell the bully to stop the behavior. This form of victim support involves direct confrontation of the bully by telling them to stop the behavior. By intervening in this manner, a bystander is supporting the victim by directly attempting to reduce the bias‐based bullying behavior. In addition to confronting the bully by telling them to stop, a bystander might confront the bully by verbally supporting the victim. Ashley, a female who was personally victimized, shared how she once stood up for her bullied friend by telling a bully it “doesn’t matter how [her friend] dresses … it is not OK to tease him about what he wears … [her friend] is just fine the way he is.” She said this to the bully in response to his making comments about her friend’s slightly feminine attire. In this instance, although she directly confronted the bully, she did not make statements such as “stop.” Instead, she supported the victim by making direct statements of defense (i.e., “it doesn’t matter how he dresses,” “he is just fine the way he is”) in an effort to reduce the bullying behavior. Although bystanders here directly address the bully, they are doing so by praising the victim as opposed to punishing the bully with demands to stop, thus suggesting a separate subtheme. Another way a bystander supports the victim is to calm the victim or even calm themselves as bystanders. Ashley, 14‐year‐old who spoke of her personal victimization, said, “[bystanders] have to stay calm, try not to go off on the bully [or you get in trouble] … also calm [the victim] down.” She talked about this in relation to an instance where she calmed her friends, but also when she, as a bystander, had to be calmed by the victim. To this same effect, some bystanders have been observed actively comforting victims as a means to manage their own emotions. Ginger, 15, and Linda, 14, told their victimized friends to “just be yourself, even if people can’t accept it” and “it is OK, just ignore them.” For these two, they comforted the victim after bullying occurred, in an effort to promote the victim's self‐esteem. These stories demonstrated active bystander efforts to reduce bullying by providing support directly toward the victim, as opposed to the bully, setting it apart as its own subtheme within victim support. Final way bystanders were supportive of a victim was to wait until after bullying situations were over and educate other bystanders who might have unknowingly joined the bullying. Linda, a 14‐year‐old musician who loves all things creative, shared a time when she saw a student jokingly labeled as “confused” because they were questioning their sexual orientation. According to her experience, only a few people knew the victim was questioning their own sexual orientation, the bully included. Whenever this student failed to answer a question in class, the bully would laugh and say the student was “confused,” prompting the class to laugh and join in. Bethany mentioned that during one of these instances, her friend joined the bullying because she thought it was a joke about the victim being confused about the 1266 | WILLIAMS ET AL. classwork. Once Linda told her friend the true meaning of the bullying, however, the friend and several other bystanders stopped joining in the teasing. This third subtheme of educating bystanders acts as an indirect way to support the victim. Although no direct confrontation of the bully or support of the victim occurred, bystanders stopped laughing once educated about the true meaning behind the bully’s comments. 6.1.3 | Support bullying The final bystander response described was behavior that promoted the actions of the bully and encouraged the continued use of bullying behaviors. These behaviors include (a) laughing or joining, (b) questioning the victim, or (c) video recording. The first way bullying is supported is through bystanders laughing or joining in on the bullying with their own negative comments about the victim. Laura, who had been personally victimized, described, “[the bystander] would join in with the situation to try to make the person being bullied feel even more belittled.” In her experiences, bystanders joined in on situations of bias‐based bullying more often than when she had seen other types of bullying. According to Laura, she felt this was because where she lives people “openly act in really mean ways against gay people” (i.e., sexual orientation or gender diverse individuals). Her stories suggest that a bystander would laugh or add to the observed bullying all in an effort to continue the bullying behaviors, thus supporting the continuation of bullying behaviors. In a different situation, Bethany, the “theatre geek,” observed bystanders waiting until after the bully left to question the victim. She stated “people would come ask about [the victim’s sexual orientation] after [the bully] left. Like seeing if what [the bully] was saying is true or not.” Although less direct than openly laughing or adding to the bullying with the bully present, this behavior added to the victim’s feeling of discomfort and embarrassment. This meant that even after a bully was gone, bystanders’ questions exacerbated the negative experience victims have, further perpetuating the bullying behavior. A final way that bystanders exacerbated the bullying was through cyber forms of video recording bullying situations on their phones. Melissa, an 18‐year‐old a self‐proclaimed scholar and socialite, cited specific photos and videos posted to popular internet social media sites (e.g., Instagram; YouTube; etc.). While recording, Melissa said bystanders laugh and then later show their friends. These same bystanders, according to Melissa, will refuse to talk to the administration about the observed bullying if later confronted. Video recording the bullying captures the event more permanently and serves to further the negative experiences of victims. Additionally, students refusing to discuss their observations with administration reduces the likelihood of intervention or future prevention of bullying. 6.2 | Response motivations Bystander behavior motivations to intervene or reinforce the bullying overlapped significantly across potential bystander responses. To some, motivations fit as a reason to join or remain passive, whereas others felt the same reason was why a bystander would support a victim. As a result, motivations of bystander behavior are discussed in general themes below rather than being linked to specific potential responses. Motivation themes included (a) fear, (b) individual characteristics, (c) relationships, and (d) personal experience. 6.2.1 | Fear A primary theme about bystander motivation to respond to biased‐bullying was fear. Fear included (a) fear of peers, (b) desire for self‐preservation, and (c) fear of school staff. First, bystanders fear their peers will judge them negatively or that they will feel embarrassed for adding their voice to a bias‐based bullying situation. Bystanders fear the bully will turn their aggression toward bystanders who intervene. Cameron, soft‐spoken 15‐year‐old who had experienced severe victimization in school, stated, “[the bystanders] just don’t want to get involved. They don’t want to get made fun of too.” For her, there is a clear possibility that a bystander who WILLIAMS ET AL. | 1267 takes action in biased‐bullying will face scrutiny from the bully, ultimately becoming a new victim, perhaps even more so than if they were to intervene in general forms of bullying. Furthermore, Frank, “the nerd,” “think[s] more bullying would be passed onto defenders when it’s bullying about gender identity than when they’re just bullying in general, you know.” He expressed multiple times that bias‐based bullying tends to be more dangerous than other forms of bullying, which adds to the bystander’s fear of retribution. Although he did not specify why he felt bias‐based bullying is more dangerous, these experiences support the theme that bystander fear of retaliation undermines active responses to intervene in bias‐based bullying directed at LGBT and gender nonconforming youth. Thus, it seems that bystander responses are influenced by efforts to protect themselves from the bullying. Ginger, a social justice advocate, felt, “self‐preservation has a lot to do with it” as a bystander does not want to deal with bullying situations themselves. By remaining passive, a bystander is not required to deal with the emotional impact of bullying and can remain disengaged morally from the situation. Additionally, Shawn, a 14‐year‐old former bully, felt, “It is social suicide to do anything” because the other people [bully and assistants] would not accept being told off. He mentioned that bullying is a tool to gain social capital, and should a bystander intervene they will lose any social credibility they have within the school. Frank, a self‐proclaimed nerd, best captured the idea of self‐preservation by saying: “[Being an active bystander] requires personal sacrifice. And, I think, I think to stop bullying you would have to take some of [the bullying] onto yourself; you know, taking that away from the victim onto yourself, which is really hard. … Something that some would want to, you know, avoid.” Frank felt bystanders must make personal sacrifices, which is incredibly challenging. Thoughts of this sacrifice are highly influential for any behavior a bystander will or will not enact during bullying situations. By remaining passive, or otherwise avoiding the situation, a bystander is actively preserving some element of themselves they find important; whether that be social capital, emotional safety, or something else not mentioned in these stories. In addition to fearing retaliation or disapproval from peers, bystanders are also afraid the adults in their school will respond negatively to any attempts to stop bullying. Due to zero tolerance policies in schools for fighting or bullying, disciplinary sanctions for direct bystander intervention, regardless of the individual's involvement in the bullying, are plausible. That is, it is possible for a bystander who attempts to disrupt bullying to receive a disciplinary sanction depending on their response. With respect to engaging teachers in bullying intervention, bystanders are afraid that their teachers will either not believe them or, even more problematic, will respond negatively. Ashley, a 14‐year‐old who has been personally victimized, said when she went to get help about her friend’s bullying experience from a teacher, the teacher said, “We don’t know what to say to you.” According to Ashley, she believed, “they [teachers] just don’t know how to respond.” Moreover, Ashley reported that she felt horrible after talking to the teacher and wished later that she had never said anything. There seems to be a belief that adults will not believe bystanders or will dismiss the situations, adding another layer of bystander fear about trying to stop bullying in their schools. 6.2.2 | Individual characteristics Another common reason a bystander chooses a response is based on individual characteristics about themselves. This included examples where a bystander was believed to not care or not know about bullying situations. Linda, the musician, felt like most bystanders at her school just “didn’t realize that was bullying.” Linda’s stories mentioned that sometimes bystanders are unaware that a behavior is bullying so they “start joining in because they thought they were just telling [the victim] he was confused as if he didn’t know the right answer.” Stories like this suggested that a bystander might be well‐meaning if they knew the bullying existed, but there was little way to determine if this was the case of if they were in fact, apathetic. Laura, the honor student, felt that bystanders who were passive did notice but that they “go about their business because they are dealing with their own issues.” For Laura, the passive behavior suggests that bystanders are apathetic to others because of their own problems, possibly reflecting the egocentric nature of typical adolescents. 1268 | WILLIAMS ET AL. Although it is unclear how to tell if a bystander is oblivious or apathetic, it is clear across stories that some passive bystanders either do not care or are risk aversive, viewing active bystander involvement as having significant social and psychological consequences. A final personal characteristic that motivates bystander behavior is general curiosity as to the accuracy of the bullying. Bethany, a 17‐year‐old “theatre geek,” thought that bystanders “were just curious if what [the bully] was saying is true or not.” She talked about a friend from her old school whose cousin was spreading rumors that she was gay. Witnesses to this behavior then pummeled the victim with questions regarding the accuracy of the statements. Their curiosity motivated them to question the reality spun by the bully’s actions. The bystanders expressed genuine curiosity toward the victim, wanting to know if what the bully said was true or not, particularly in the case of spreading rumors. 6.2.3 | Relationships Another influence on bystander behavior is their interpersonal relationships with individuals involved in the bullying and individuals external to the bullying but central to their lives. This can include their relationship status with the bully or victim as well as the influence other relationships (e.g., parents, friends, etc.) may have on a bystander’s beliefs about what other people expect from them (i.e., normative beliefs). Normative beliefs encompass those thoughts and expectations an individual holds true and/or perceives are held true by their community as a whole. A bystander's relationship to either a bully or victim is said to have a significant impact on actions. Shawn, 14, and Brady, 15, thought that a bystander might join if they were “helping their friend be a bully.” Shawn, a former bully, thought a bystander would only be active against a bully if the victim were their friend. In his experiences, a bystander who is not a friend of a victim has no reason to intervene. Linda, the musician, also felt like a bystander would not want to stop their friend from being a bully as that had the potential to ruin the friendship. For these youth, a bystander’s relationship status was the primary motivator behind their behavior. Friends of the victim would help the victim, friends of the bully would help the bully, and those who were not friends with either would likely walk away. Additionally, relationships with friends, parents, and teachers also altered how bystanders reacted to bullying. Lisa, 17‐year‐old college‐bound senior, indicated that she had lived across the United States as the daughter of a military family. In her experiences traveling, she felt that “combatting [bullying] is very hard in some places, especially in places like [state removed], because people here in [state removed] don’t like gay people.” Essentially, if the normative beliefs of the school/city/state/country you live in are negative toward LGBT individuals, bystanders are likely not going to try to stop bias‐based bullying. Ashley, a self‐identified lesbian, felt, “If [a bystander] was raised to think you’re a bad person [if you’re gay] then they would join.” Her personal experience as a self‐identified lesbian resulted in multiple instances of victimization, which, she feels, directly resulted from the normative, often prejudiced beliefs about her identity held by the community in which she resides. These normative beliefs can sometimes be a positive, as is the case of 18‐year‐old socialite, Melissa, who felt that her school is labeled “the gay school” so “people don’t really bully gay people here since it is just normal.” Overall, however, stories shared overwhelmingly suggest that bystanders within communities espousing negative feelings toward the LGBT community are very unlikely to help reduce bullying. 6.2.4 | Personal experiences The final motivation behind bystander behavior was that of their personal experiences. Personal experiences included both their previous experiences with bullying and their education in general and about the LGBT community. Previous bullying experience also has the potential to alter a bystander’s motivation to respond in any way. If you have been victimized previously, there seems to be increased feelings of empathy or caring for the victim. Ashley, 14, and Lisa, 17, both indicated their personal decisions to defend victims was a direct result of their experiences of being victimized. Both openly discussed times they had been victimized and, as a result, both WILLIAMS ET AL. | 1269 indicated feeling compelled to respond to bullying directly once in the bystander role. To the opposite extreme, individuals who may have never experienced personal victimization or might have been a bully before were less likely to help victims, preferring instead to join. Brady, a 15‐year‐old self‐proclaimed gamer, thought that a bystander would join or be passive if “they used to be a bully.” In all of these stories, a bystander's previous experience with bullying situations would influence how they would respond to a current situation based on their experiences as either a bully or a victim. Previous experiences include not only bullying experience but also a bystander’s academic education, and their education about the LGBT community. Frank, 16, and Ginger, 15, noted they were both taking multiple advanced placement classes, which resulted in their being surrounded by other students focused primarily on their education. As a result, they felt that bystanders stop the infrequent bullying that does happen almost immediately. They believed students with “higher education[al]” aspirations are less likely to accept or perpetuate bullying behavior in their classrooms compared with students in general education. Additionally, Skyler, 15, felt that bystanders might just be uneducated about bias‐based bullying or inexperienced with individuals who are a part of the LGBT community. He said since he has extensive personal relationships with members of the LGBT community, he felt if he saw bias‐based bullying, he would be motivated to intervene. In essence, he feels his education and experience with members of the community has increased his level of empathy and care for the community. 7 | D IS C U S S IO N Nationally, rates of bullying have declined, but biased‐bullying, bullying directed at someone’s perceived or actual sexual orientation or gender nonconforming behavior, remains a pernicious problem (Centers for Disease Control and& Prevention, 2017). Whereas a number of studies have examined the effects of biased‐bullying on youth’s mental health, less attention has been directed toward how bystanders perceive biased‐bullying and their motivations for responding to bullying directed at perceived sexual minority and gender nonconforming youth. In an effort to better understand how bystanders view and respond to bias‐based bullying, this study examined high school students’ perceptions of bystander behavior in response to bias‐based bullying and their beliefs about factors that influence bystander responses. Consistent with prior research, we found that the primary behaviors enacted by bystanders in biased‐bullying situations were passive avoidance, victim support, or bully support (Salmivalli et al., 1996). However, our findings yield insight into the specific ways adolescent bystanders support both bullies and victims. Through in‐depth qualitative interviews, we identified a previously unreported method of supporting a victim through indirect methods, such as telling other bystanders when a behavior is actually bullying, not a joke. Additionally, the data in this study indicates that in addition to passive observations as a means bystanders perpetuate bullying, they also are actively spreading the bullying by video recording situations to share later. Finally, a key bystander behavior mentioned in the previous research was noticeably absent from our study, namely, participants failure to involve adults (e.g., teachers or parents). This fits with research suggesting that as bystanders age, they are less likely to seek adult intervention either because teachers have been unhelpful in the past, or for developmentally appropriate wishes to remain autonomous (Bradshaw, Sawyer, & O’Brennan, 2007; deLara, 2012). In terms of bystander motivations, participant narratives suggest four different potential catalysts. Similar to previous research, we found that bystander fear, relationships, and previous experience with bullying influenced bystander’s decision to intervene (deLara, 2012; Ettekal, Kochenderfer‐Ladd, & Ladd, 2015; Evans & Smokowski, 2015; Patterson, Allan, & Cross, 2015; Pozzoli & Gini, 2012; Thornberg, 2007; Thornberg et al., 2012). Bystanders in this study were often characterized as apathetic or oblivious to the plight of victims. The concept of bystander apathy aligns well with literature related to moral disengagement and of bystander disassociation (Doramajin & Bukowski, 2015; Obermann, 2011; Thornberg, 2007). Bystanders appearing to not care or not notice bullying appears to reflect the tendency for bystanders to distance themselves from potential negative feelings associated 1270 | WILLIAMS ET AL. with witnessing a bullying event in an effort to minimize or prevent emotional discomfort. By disengaging, the bystander disavows their part in the observed aggression by pretending nothing is happening, thus attempting to absolve themselves of any part. Expanding upon the empirical understanding of bystander motivations not previously identified in earlier work, results of this study indicate that education level or educational aspirations, as well as bystander curiosity, may influence bystander responses to bias‐based bullying. Results indicate bystanders are believed to respond differently to bullying depending on the level of classes they are enrolled in (e.g., general education vs. advanced placement vs. college dual enrollment). Participant assumption of the importance of educational placement may suggest a bias in the perception of this sample. Parent educational achievement was not obtained as demographic variables for this study, but the sample was drawn from a small, nonmetropolitan city adjacent to a university where the community educational level was high. It is possible that the importance of achievement was overestimated, or that there was a negative bias against people assumed to be less formally educated (e.g., the stereotype of less formally educated people to be more biased against others). Additionally, the concepts of curiosity perceived by the high school students about the bullying may, in fact, be attempts to confirm a rumor, which was described as bully supporting behaviors. Alternatively, this behavior may be a method of further humiliating the victim. Given that this form of bullying was not mentioned in previous literature as a motivating factor for bystander behavior, it is recommended that future research explore this concept more fully. Inherent in all research, some limitations exist for future research to expand. First, this is a qualitative study‐ based explicitly on the lived experiences of 14 adolescents. While the themes are likely relatable to other situations, it is probable that the themes identified in students’ qualitative accounts of observing bias‐based bullying do not cover all potential lived experiences related to bystanders witnessing bias‐based bullying. It is also noted that most of the participants were not “pure” bystanders, specifically that they had personally been victimized in the past. This historical victimization is likely to alter their bystander actions, but that was not reviewed in this study. To continue the expansion of empirical knowledge related to bias‐based bullying, research should include mixed methods and alternative perspectives to ensure that comprehensive empirical information is made available to continue the depth and breadth. Future research with bystander experiences with bias‐based bullying should make an effort to address these limitations and further expand the empirical knowledge of students’ lived experiences. A qualitative study should work to include transferability evaluations as a measure of data trustworthiness. Additionally, results indicate some potential ambiguity from students about adult bystander responses in schools. Participants were either certain an adult would enact further bullying, or that the adults were not trained well enough to respond appropriately to bias‐based bullying situations. Consistent with the research, results suggest it will be crucial to focus on bolstering school adults’ abilities to assess and respond appropriately to bias‐based bullying in schools (Blake, Banks, Patience, & Lund, 2015). In addition to perceived adult ambiguity, participants felt that there are not enough distributed resources about bias‐based bullying in the schools. Utilizing counselors or school psychologists to aid in reviewing and evaluating school anti‐bullying interventions may prove beneficial to further understanding the behaviors of bystanders (Lund, Blake, Ewing, & Banks, 2012). OR CID Jamilia J. Blake http://orcid.org/0000-0002-1452-6770 REFERENC ES Blake, J. J., Banks, C. S., Patience, B. A., & Lund, E. M. (2015). School‐based mental health professionals’ bullying assessment practices: A call for evidence‐based bullying assessment guidelines. Professional School Counselor, 18(1), 136–147. WILLIAMS ET AL. | 1271 Bradshaw, C. P., Sawyer, A. L., & O’Brennan, L. M. (2007). 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High school bystanders motivation and response during bias‐based bullying. Psychol Schs.. 2018;55:1259–1273. https://doi.org/10.1002/pits.22186 WILLIAMS ET AL. | 1273 AP PEN D IX INTERVIEW TEMPLATE Age: _____Grade: ____ Ethnicity/Race: __________________Gender Identity: ________________________ • Tell me a little bit about yourself. (Aim to understand what personal characteristics are important to that individual.) a. Now, tell me a little bit about your closest friends (aim to understand the student's support network and key members) • How do you define bullying? a. How do people at school talk about bullying (i.e., friends, teachers, administration)? • What are their expectations for what to do if you see bullying? a. If the student only names 1 type of bullying: are there other things that might be involved in bullying? • What have you been told about what being a male means? Female? a. What have you been told that men should looks like (i.e., how they dress, talk, behave, etc.)? Female? b. Tell me how you feel about those expectations. • With those expectations of gender in mind, have you ever seen anyone bullied for not meeting those expectations? Tell me a story about a time someone was bullied for their gender a. How did you know they were being bullied for their gender? b. How did watching that make you feel? c. How did you respond? d. What made you decide to respond that way? e. Was there anything you wish you could change about your response? f. How did others respond? Why do you think they did that? • Besides someone telling you, how do you know what another person's sexual orientation is? a. What labels do you use to describe different sexual orientations? b. What labels do you hear other people use? c. What expectations have you been told about how a non‐heterosexual person should appear (i.e., how they dress, behave, talk, etc.)? • With those expectations of sexual orientation in mind, have you ever seen anyone (student’s word for bullying) for not meeting expectations? Tell me a story about a time you’ve seen someone bullied for their sexual orientation. a. How did you know they were being bullied for their sexual orientation? b. How did watching that make you feel? c. How did you respond? d. What made you decide to respond that way? e. Was there anything you wish you could change about your response? f. How did others respond? Why do you think they did that? • Is there anything that I have not asked in our time together that you think I should ask someone in the future? Zoe Ridolfi-Starr Transformation Requires Transparency: Critical Policy Reforms To Advance Campus Sexual Violence Response a b s t r a c t . This Feature discusses the lack of transparency in campus adjudication of gender violence reports. It examines the harms caused by this procedural opacity to both accusing and accused students alike, including pervasive mistrust in the system and decreased reporting rates. The piece catalogues many of the criticisms raised by advocates from all sides surrounding the fairness of campus investigations and sanctioning, and addresses allegations of discriminatory treatment against minority communities. I argue that stakeholders will be unable to address these important concerns—and thus fully vindicate the equality principles central to Title IX—without a strong, federal requirement for increased transparency on campuses. I offer a proposal for what this mandate should be comprised of, including methods for ensuring that student privacy is protected. a u t h o r . Deputy Director at Know Your IX; Chair of the Fund for a Safer Columbia; CoFounder of the Carry That Weight Campaign; Lead Complainant in the Title IX investigation of her alma mater, Columbia University. She thanks her mothers, for everything. 2156 transformation requires transparency feature contents introduction 2158 i. procedural opacity has harmful consequences 2160 ii. procedural opacity prevents us from answering critical questions 2165 A. Are Campuses Investigating and Sanctioning Cases Fairly? B. Are Campuses Discriminating Against Specific Communities? 2165 2169 iii. solution: a robust legislative mandate for increased transparency A. Any Solutions Must Address Privacy Concerns B. Models Provide Guidance Opportunities C. Transparency: The Specifics 1. Information Regarding the Investigation and Sanctioning of Cases 2. Demographic Information on the Involved Parties 3. Information Regarding Interim Measures and the Long-Term Outcomes for Students Who Filed Reports of Gender Violence conclusion 2173 2176 2177 2178 2179 2179 2180 2181 2157 the yale law journal 125:2156 2016 in t r o d u c t io n The current debate surrounding campus adjudication of gender violence has painted a picture of two warring factions: in one corner are the feminists battling for greater awareness of sexual violence and campus processes that center on victims’ needs, and in the other are critics who argue schools have overcorrected to the point of discriminating against accused students. The present discourse suggests that students who are making accusations of gender violence and students against whom such allegations are made have mutually exclusive interests. But there is an area where all students share a common interest: ensuring fair and transparent campus disciplinary processes. As a result of tremendous national attention over the past few years to sexual and dating violence in schools, initiatives to improve school disciplinary policies have emerged across the country at both the school and governmental levels. Sexual and dating violence occurs on college campuses with disturbing frequency: one in five female students report being sexually assaulted during college;1 nineteen percent of transgender and gender-nonconforming students report having experienced sexual assault or misconduct;2 and college-aged women are the group most likely to experience dating violence.3 Thus far, efforts to confront this violence have focused on prevention and response, both of which are critical elements of addressing epidemic levels of violence and inadequate institutional responses.4 But the experiences of student survivors who attempt to report to their schools, of advocates pushing for improved policies, and of critics who argue that accused students have been wronged in the process show us that new policies will only be cosmetic unless these reform 1. See Sofi Sinozich & Lynn Langton, Rape and Sexual Assault Victimization Among College-Aged Females, 1995-2013, U.S. DEP’T JUST. (Dec. 2014), http://www.bjs.gov/content/pub/pdf /rsavcaf9513.pdf [http://perma.cc/LY4U-TV6A]. 2. See David Cantor et. al., Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, WESTAT (2015), http://www.aau.edu/uploadedFiles/AAU _Publications/AAU_Reports/Sexual_Assault_Campus_Survey/Report%20on%20the%20AA U%20Campus%20Climate%20Survey%20on%20Sexual%20Assault%20and%20Sexual%20 Misconduct.pdf [http://perma.cc/7MJX-MJEA]; see also Hayley Munguia, Transgender Students Are Particularly Vulnerable to Campus Sexual Assault, FIVETHIRTYEIGHT (Sept. 22, 2015), http://fivethirtyeight.com/datalab/transgender-students-are-particularly-vulnerable -to-campus-sexual-assault [http://perma.cc/BMY9-XL2U] (describing how transgender students are especially vulnerable to sexual assault on campuses). 3. See Bureau of Justice Statistics, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends, U.S. DEP’T JUST. (Mar. 1998), http://bjs.gov/content/pub/pdf/vi.pdf [http://perma.cc/GFZ8-B965]. 4. Tyler Kingkade, 124 Colleges, 40 School Districts Under Investigation for Handling of Sexual Assault, HUFFINGTON POST (July 24, 2015), http://www.huffingtonpost.com/entry/schools -investigation-sexual-assault_55b19b43e4b0074ba5a40b77 [http://perma.cc/6HUP-G2DP]. 2158 transformation requires transparency efforts include rigorous transparency requirements. A fair campus process benefits both accused and accusing students; however, as I will show, it is impossible to assess and ensure the fairness of these systems without transparency requirements. This Feature argues that there is a troubling lack of transparency and accountability in the processes colleges and universities use to address campus sexual and dating violence. This opacity creates a culture of impunity for campus officials entrusted with ensuring the safety of students and further stokes critiques from those who argue for more robust rights for accused students. I discuss a number of concrete ways in which the current lack of transparency regarding college disciplinary processes creates challenges for both accused and accusing students. Both groups argue that these processes lead to unfair investigations and discrimination against particular populations. However, these difficulties are not intractable; federal legislation can require transparency to better serve all students. In this Feature, I draw on a recent New York State law mandating increased campus transparency as a promising example, which could be improved upon and implemented nationwide. This law requires colleges and universities to release aggregate, anonymized data regarding the adjudication of campus gender violence reports while also addressing the issue of student privacy, and it should serve as a template for a more comprehensive transparency mandate at the national level. Concern over how colleges and universities handle gender violence complaints has reached a fever pitch. Students who have experienced sexual and dating violence on campus are condemning school disciplinary responses as unfair and ineffective, and student activist groups—like No Red Tape5 and the Carry That Weight Campaign,6 which I helped found at Columbia University—have gained visibility and momentum in their efforts to change campus policies and culture.7 At the same time, students accused of rape have 5. No Red Tape is a student activist group fighting rape culture at Columbia University. It was founded after a group of survivors of sexual assault began meeting to discuss their experiences with sexual assault at the school in 2014. See No Red Tape, FACEBOOK http:// www.facebook.com/NoRedTapeCU [http://perma.cc/CX3G-C8YR]. 6. Carry That Weight is a national, student-led campaign that emerged to organize student activists in solidarity with Emma Sulkowicz’s highly publicized performance art piece “Carry That Weight,” in which she carried a mattress around Columbia’s campus as long as her rapist also attended the University. See CARRY THAT WEIGHT, http://www .carryingtheweighttogether.com [http://perma.cc/KK3U-824H]. 7. Jason Felch, Obama Urges Strong Stand Against Sexual Assaults, L.A. TIMES (Jan. 22, 2014), http://www.latimes.com/local/lanow/la-me-ln-obama-college-sexual-assault -20140122-story.html [http://perma.cc/7PCQ-R349]; Richard Pérez-Peña, College Groups Connect To Fight Sexual Assault, N.Y. TIMES (Mar. 19, 2013), http://www.nytimes.com/2013 /03/20/education/activists-at-colleges-network-to-fight-sexual-assault.html [http://perma 2159 the yale law journal 125:2156 2016 also levied concerns about the fairness of campus procedures; these concerns are surprisingly similar to those raised by survivors.8 Both groups have complained about the length of investigations, the protocol for submitting evidence or calling witnesses, the fairness of sanctions, and the partiality of adjudicators.9 Some accused students are even filing Title IX suits alleging that their schools persecuted male students.10 Elected officials are scrambling to propose competing bills addressing perceived deficits in campus procedures.11 Meanwhile, law professors at elite universities are slamming policies they see as unfair to accused parties.12 The only thing that anyone appears to agree on is this: whatever schools are doing now, they are getting it wrong. This is an important moment for those invested in the safety of students and the fairness of campus policies to pause and consider the basis for these arguments. Whether groups are advocating for harsher penalties for perpetrators or increased procedural protections, the remarkable opacity of campus disciplinary processes means that all of these claims currently lack a demonstrable empirical basis. Few, if any, stakeholders have access to the information that would be necessary to make substantive and quantitatively significant evaluations of campus responses to gender violence reports. i. p r o c e d u r a l o p a c it y h a s h a r m f u l c o n s e q u e n c e s The current lack of transparency has a clear, direct impact on the credibility of campus disciplinary processes. In the eyes of both accused and accusing .cc/QZK5-XLE3]; Vanessa Grigoriadis, Meet the College Women Who Are Starting a Revolution Against Campus Sexual Assault, CUT (Sept. 21, 2014), http://nymag.com/thecut /2014/09/emma-sulkowicz-campus-sexual-assault-activism.html [http://perma.cc/RK83 -PZE5]. 8. See, e.g., infra Section II.A. 9. Sara Ganim & Nelli Black, An Imperfect Process: How Campuses Deal with Sexual Assault, CNN (Dec. 21, 2015), http://www.cnn.com/2015/11/22/us/campus-sexual-assault-tribunals [http://perma.cc/Y2MQ-A5U3]; Tyler Kingkade, Students Accused of Sexual Assault Say Schools Don’t Interview Their Witnesses, HUFFPOST C. (July 23, 2015), http://www .huffingtonpost.com/entry/college-sexual-assault-witnesses_us_55afdef5e4b0a9b948535a4e [http://perma.cc/G5C5-C2CC]. 10. Max Kutner, The Other Side of the College Sexual Assault Crisis, NEWSWEEK (Dec. 10, 2015), http://www.newsweek.com/2015/12/18/other-side-sexual-assault-crisis-403285.html [http://perma.cc/8H49-LJXY]. 11. Andrew Morse et al., State Legislative Developments on Campus Sexual Violence: Issues in the Context of Safety, NASPA (2015) http://www.naspa.org/images/uploads/main/ECS _NASPA_BRIEF_DOWNLOAD3.pdf [http://perma.cc/KDJ9-UB6C]. 12. See, e.g., Jed Rubenfeld, Mishandling Rape, N.Y. TIMES (Nov. 15, 2014), http://www.nytimes .com/2014/11/16/opinion/sunday/mishandling-rape.html [http://perma.cc/9VCD-HNN3]. 2160 transformation requires transparency students, the policies that schools follow—or claim to follow—when responding to a report of sexual or dating violence are shrouded in secrecy and vigorously guarded from public exposure. Students report that the lack of clarity often continues even during the process of an investigation. This kind of secrecy is harmful to all students. It creates a culture of impunity for campus officials, who are free to make mistakes without facing consequences. These mistakes—whether the results of deliberate attempts to cover up reports, subconscious biases, or lack of training and expertise—can have devastating consequences for students on either side of an investigation. Secrecy stokes mistrust of the process and intensifies suspicions of administrative abuses, which in turn discourages students from coming forward to report and seek the help they need after experiencing rape or abuse on campus. And lastly, whether the ultimate ruling is in favor of the accusing or accused student, this lack of transparency and trust delegitimizes the outcomes of all cases. Only about half of all students surveyed recently at twenty-seven colleges and universities across the United States believed it very or extremely likely that a fair investigation would occur after a report of sexual assault or misconduct. This number was markedly lower for the groups most likely to be victimized, namely female and transgender or gender-nonconforming students.13 Of students who experienced non-consensual sexual penetration and chose not to report, about a third indicated this was because they “did not think anything would be done about it.”14 This lack of confidence is exacerbated, if not caused by, the extreme lack of transparency on most campuses. Schools cannot expect students, or their parents or attorneys, to trust a system that is so deliberately opaque and plagued by stories of negligence and bias. The current dearth of information creates distrust from all sides and invites critiques that campus processes are arbitrary and unfair. Though we lack comprehensive or quantitative information regarding the outcomes of school disciplinary processes, there is abundant qualitative and anecdotal evidence that schools are enforcing neither their own policy requirements or stated ethical standards,15 nor those required by the U.S. 13. See Cantor, supra note 2, at xxii. 14. See id. at xxi. 15. Jessica Li, In Lawsuit, Former Cornell Student Alleges Rights Violated in Sexual Misconduct Investigation, DAILY PRINCETONIAN (Mar. 21, 2015), http://dailyprincetonian.com/news/2015 /03/in-lawsuit-male-cornell-student-alleges-rights-violated-in-sexual-misconduct-investiga tion [http://perma.cc/DP99-WKH4]; Ashe Schow, University Accused of Racism in Campus Sexual Assault Lawsuit, WASH. EXAMINER (Jan. 6, 2016), http://www.washingtonexaminer .com/article/2579741 [http://perma.cc/48UB-4E2X]; Tyler Kingkade, Bard College Now Facing 3 Federal Complaints over Sexual Assault, HUFFINGTON POST (Jan. 19, 2016), http://www.huffingtonpost.com/entry/bard-college-under-investigation-title-ix_us_5696d 2161 the yale law journal 125:2156 2016 Department of Education (DOE), Title IX, and/or state laws. This lack of enforcement by schools is evidenced by the remarkably high number of schools under investigation for violating these policies and the increasingly frequent findings of noncompliance in these investigations.16 As a survivor of sexual assault on campus and a student activist at Columbia University, I saw firsthand the disturbing disconnect between Columbia’s publicly stated policies and values and the way school officials actually handled complaints of sexual and dating violence.17 As a result, I worked with a group of twenty2c1e4b0ce4964233500 [http://perma.cc/WP2T-B2ZE]; Sy Mukherjee, Students Allege Four Major Universities Violated Federal Sexual Assault Policy, THINKPROGRESS (May 23, 2013), http://thinkprogress.org/health/2013/05/23/2055771/students-allege-four-major-universities -violated-federal-sexual-assault-policy [http://perma.cc/H3GA-AAAJ]. 16. See, e.g., Investigations, CHRON. HIGHER EDUC., http://projects.chronicle.com/titleix/cases [http://perma.cc/KQC7-5DRA] (listing Title IX investigations across the country); Press Release, U.S. Dep’t Educ., Princeton University Found in Violation of Title IX, Reaches Agreement with U.S. Education Department To Address, Prevent Sexual Assault and Harassment of Students (Nov. 5, 2014), http://www.ed.gov/news/press-releases /princeton-university-found-violation-title-ix-reaches-agreement-us-education-department -address-prevent-sexual-assault-and-harassment-students [http://perma.cc/2M4E-NYHB]; Tyler Kingkade, UVA Violated Title IX, Had ‘Mixed Record’ on Assault Cases, Federal Investigation Finds, HUFFINGTON POST (Sept. 21, 2015), http://www.huffingtonpost .com/entry/uva-federal-investigation_us_55e97f6ce4b002d5c075aaa7 [http://perma.cc /RW4R-SAMV]; Jake New, When the Victim Is Male, INSIDE HIGHER ED (Dec. 12, 2014), http://www.insidehighered.com/news/2014/12/12/smu-found-violation-title-ix-after -not-investigating-male-students-claim-sexual [http://perma.cc/HJX7-G7AY]. 17. The University publicly asserts zero tolerance for gender violence on campus; however, the actions of school officials in a majority of cases that I was personally involved with through the peer support group I ran, or became familiar with through writing a Title IX complaint, demonstrated a departure from those commitments. In multiple cases, the University flouted its own policies, including those regarding the process for interviewing witnesses; protocols for documenting information obtained in the investigation process, the length of cases; the role of legal advisers; and access to academic, housing, and safety accommodations. Additionally, the University regularly allowed students found to have committed acts of gender violence to remain a part of the University community and failed to protect survivors from retaliation and continued exposure to their rapists and abusers on campus. Of the dozens of cases we tracked, we documented zero expulsions. See “Accessible, Prompt, and Equitable”? An Examination of Sexual Assault at Columbia, BWOG (Jan. 23, 2014, 1:00 PM), http://bwog.com/2014/01/23/accessible-prompt-and-equitable-an-examination -of-sexual-assault-at-columbia [http://perma.cc/69TL-2D8X]; Gender-Based Misconduct Policy for Students, COLUM. U., http://sexualrespect.columbia.edu/gender-based-misconduct -policy-students [http://perma.cc/8SPK-D83M] (“Columbia University, Barnard College, and Teachers College are committed to fostering an environment that is free from genderbased discrimination and harassment, including sexual assault and all other forms of gender-based misconduct. The University recognizes its responsibility to increase awareness of such misconduct, prevent its occurrence, support victims, deal fairly and firmly with offenders, and diligently investigate reports of misconduct. In addressing issues of genderbased misconduct, all members of the University must come together to respect and care for 2162 transformation requires transparency seven other students to write and file a Title IX complaint against the school in April 2014, outlining dozens of cases in which we argued that the school allowed violent perpetrators (including serial rapists) to remain on campus;18 discriminated against LGBTQ survivors in particular;19 forced survivors to take mental health leaves, instead of addressing their rape reports; failed to provide critical resources and protection for students; retaliated against students who attempted to report; and otherwise violated the school’s own policies as well as federal laws in handling reports of sexual and dating violence.20 In my national advocacy work, I see heated, personal, high-stakes debates playing out about the fairness of college adjudication systems. There is no question as to whether the campus disciplinary procedures are working appropriately—they are not. The questions that remain unanswered are: to whom and in what ways are they unfair, and how can we address these concerns? As it currently stands, we lack sufficient quantitative data necessary to conclusively answer any of these questions and effect critical reforms. Stories like mine have become disturbingly commonplace: the anecdotal evidence that schools are failing to appropriately handle reports of sexual and dating violence on campus is plentiful. However, if the goal is to hold schools to higher standards for their prevention and response policies, anecdotal examples are insufficient. Students and parents need more than anecdotal evidence to evaluate how individual schools are doing; victims and accused students need more to ensure their cases are being treated fairly; advocates and policymakers need more to design effective solutions and hold schools accountable. Data, where available, is an essential tool for evaluating an individual school’s response to sexual violence on its campus. However, the data currently available is collected largely in the aggregate rather than at the individual campus level and lacks critical metrics, such as the length of investigations or the number of students sanctioned for misconduct. This reduces the data’s usefulness in designing campus-specific reforms. For example, the Jeanne Clery Act, passed in 1990, requires all colleges and universities to release annual security reports tallying the number of crimes one another in a manner consistent with our deeply held academic and community values.”); Abigail Golden, Is Columbia University Mishandling LGBT Rape Cases, DAILY BEAST (Apr. 30, 2014, 2:35 PM), http://www.thedailybeast.com/articles/2014/04/30/is -columbia-university-mishandling-lgbt-rape-cases.html [http://perma.cc/FF7D-8K78]. 18. See BWOG, supra note 17. 19. Golden, supra note 17. 20. See Peter Jacobs, 23 Columbia Students File Landmark Sexual Assault Complaint, BUS. INSIDER (Apr. 24, 2014, 5:21 PM), http://www.businessinsider.com/columbia-students-file -landmark-sexual-assult-complaint-2014-4 [http://perma.cc/97GF-A9R9]. 2163 the yale law journal 125:2156 2016 reported on or near campus.21 But schools are not required to release any information about how these reports are ultimately addressed or any aggregate information regarding the identity of the parties involved, such as whether the majority of perpetrators are students. The Clery Act scheme is woefully insufficient. Other data sources provide some insights but also fail to provide important campus-specific information. U.S. Senator Claire McCaskill recently commissioned a report to assess how colleges and universities report, investigate, and adjudicate sexual violence reports. The survey, which was completed by 440 four-year colleges and universities, was released on July 9, 2014.22 It provides some quantitative insight into the current practices and attitudes of campus administrators. The report points out that, even though federal law requires that any school made aware of a student allegation of sexual assault on its campus must take affirmative steps to investigate that claim, more than “40% of schools in the national sample have not conducted a single investigation in the past five years . . . [and] 20% of the nation’s largest private institutions conducted fewer investigations than the number of incidents they reported,” with multiple institutions reporting as many as seven times more incidents of sexual violence than they have investigated.23 Another analysis found that, even when reports were investigated and perpetrators found responsible for sexual assault, less than one-third of students were expelled. Approximately forty-seven percent of students found responsible for sexual assault were given suspensions and then allowed to return to campus, at least seventeen percent received educational sanctions, and thirteen percent were placed on probation.24 These reports provide valuable big-picture data illustrating the scope and dimensions of the many flaws in campus disciplinary procedures, but they fail to provide the campus-specific information that would allow for meaningful comparisons and inform ongoing policy improvements. This Feature calls for that to change. 21. 20 U.S.C. § 1092(f) (2012). 22. Sexual Violence on Campus: How Too Many Institutions of Higher Education Are Failing To Protect Students, STAFF SENATE SUBCOMMITTEE ON FIN. & CONTRACTING OVERSIGHT (July 9, 2014), http://www.mccaskill.senate.gov/SurveyReportwithAppendix.pdf [http://perma.cc /PLK8-QLQK]. 23 . 24. Id. at 1. See Kingkade, supra note 4. 2164 transformation requires transparency ii. p r o c e d u r a l o p a c it y p r e v e n t s u s f r o m a n s w e r in g c r it ic a l q u e s t io n s A. Are Campuses Investigating and Sanctioning Cases Fairly? Both those who allege sexual assault as well as those accused characterize college disciplinary procedures as subjecting students to unfair and inappropriate processes for investigating, adjudicating, and sanctioning incidences of sexual assault. Students also criticize their schools for violating both existing laws and their own campus policies.25 In fact, at least 174 colleges and universities are currently under investigation for violating Title IX in sexual and dating violence cases,26 hundreds more are facing public criticism and student protest,27 and many students have brought lawsuits against colleges claiming unfair and biased adjudication of sexual assault and harassment claims.28 25. For example, at the University of California, Davis, activists petitioned to have a male student expelled after he was found responsible for committing multiple counts of sexual harassment, assault, and abuse against a fellow student. See Concerned Students of the Univ. of Cal., Davis, Expel Rapists, CHANGE, http://www.change.org/p /ralph-hexter-adela-de-la-torre-linda-katehi-expel-rapists [http://perma.cc/F8QJ-YL3S]. According to the survivor, schools officials put her through a lengthy and traumatic investigation process that far exceeded the time limits outlined in U.C. Davis’s own sexual misconduct policy, as well as federal law, and diverged significantly from the procedure laid out in U.C. Davis’s policy. See id.; see also Office of the Provost and Exec. Vice Chancellor, UC Davis Policy and Procedure Manual: Sexual Harassment and Sexual Violence, U.C. DAVIS (Sept. 30, 2015), http://manuals.ucdavis.edu/PPM/400/400-20.pdf [http:// perma.cc/K9FE-34EK]. Her allegations of sexual assault were substantiated at multiple levels during the investigation, and the hearing officer recommended dismissal for her attacker at the conclusion of a formal hearing process. However, this outcome was overturned with no explanation by a vice chancellor, a decision that ultimately allowed her assailant to stay on campus. See Concerned Students of the Univ. of Cal., Davis, supra. The school’s website on sexual violence proclaims that “[o]ne of UC Davis’ highest priorities is the safety of its students and all members of its community.” See Sexual Violence Prevention and Response, U.C. DAVIS, http://sexualviolence.ucdavis.edu [http://perma.cc/6VK3RXA5]. But students argue that this case demonstrates a disconnect between the school’s stated values and protocols and its actions. 26. See CHRON. HIGHER EDUC., supra note 16. 27. See, e.g., Tara Culp-Ressler, Columbia Student’s Mattress Protest Has Sparked a National Movement, THINK PROGRESS (Oct. 29, 2014, 8:57 AM), http://thinkprogress.org/health/2014 /10/29/3585773/college-students-solidarity-rape-victims [http://perma.cc/AS5Y-ECF4]. 28. Tyler Kingkade, USF Student Who Deleted Emails About His Sexual Assault Charge Latest To Lose in Title IX Lawsuit, HUFFPOST C. (July 14, 2015), http://www.huffingtonpost.com/entry /accused-students-title-ix_us_55a40642e4b0a47ac15d02b8 [http://perma.cc/PP88-8DHJ]. 2165 the yale law journal 125:2156 2016 Many survivors of sexual violence and their advocates argue that schools are biased in favor of protecting the reputation of the school. As a result, survivors contend, schools sweep sexual violence allegations under the rug and hand down lenient sanctions for perpetrators.29 After a campus newspaper published a lengthy article detailing slow, poorly handled investigations of campus sexual assault that left survivors without critical resources and perpetrators sanctioned with little more than a slap on the wrist,30 a group of students at Columbia University circulated a petition calling on the school to release aggregate, anonymized data on the outcomes of reported gender violence cases.31 After nearly a year of protest, Columbia released a report in 2014, which revealed, among other things, that investigations consistently took longer than the sixty days allowed by both federal guidance32 and Columbia’s own policy,33 and indicated that the school had expelled zero students found to have committed sexual assault that year.34 At Amherst College, too, student protesters successfully pushed the school to release data regarding the adjudication of campus sexual assault. The college released a report covering a 29. For example, an investigation by The New York Times that examined police and court records and interviewed crime witnesses found that Tallahassee law enforcement and state officials have “on numerous occasions soft-pedaled allegations of wrongdoing by Seminoles football players,” including allegations of sexual assault, allowing players to escape serious consequences. Mike McIntire & Walt Bogdanich, At Florida State, Football Clouds Justice, N.Y. TIMES (Oct. 10, 2014), http://www.nytimes.com/2014/10/12/us/florida-state-football -casts-shadow-over-tallahassee-justice.html [http://perma.cc/AWL8-PBG2]. 30. See Anna Bahr, “Accessible, Prompt, and Equitable”? An Examination of Sexual Assault at Columbia, BWOG (Jan.23, 2014, 1:00 PM), http://bwog.com/2014/01/23/accessible -prompt-and-equitable-an-examination-of-sexual-assault-at-columbia [http://perma.cc /9N8V-6EDU]. 31. See Tyler Kingkade, Columbia University To Release Campus Sexual Assault Data in Response to Student Campaign, HUFFINGTON POST (Jan. 29 2014, 6:59 PM), http://www.huffingtonpost .com/2014/01/29/columbia-sexual-assault-cases_n_4687323.html [http://perma.cc/WJ2A -T5FT]. 32. Office for Civil Rights, Dear Colleague Letter from Assistant Secretary for Civil Rights Russlynn Ali, U.S. DEP’T EDUC. 12-13 (Apr. 4, 2011), http://www2.ed.gov/about/offices/list/ocr/letters /colleague-201104.pdf [http://perma.cc/P3WJ-DMH9]. 33. Columbia University Gender-Based Misconduct Prevention and Response, COLUM. U. (Sept. 23, 2014), http://sexualrespect.columbia.edu/files/sexualrespect/content/Report.pdf [http:// perma.cc/5W7J-U2WP]. Columbia’s report detailed the total number of cases and provided some limited information on their outcomes. The report revealed that in 2013-14, the average sexual assault investigation lasted ninety-one days, with several investigations stretching over months, over summer vacations, and across multiple semesters—despite the fact that both the University’s own policy and federal guidance state clearly that the process should take no more than sixty days. 34. See COLUM. U., supra note 33, at 11-12. 2166 transformation requires transparency three-year period (2009-2011)35 showing that, in multiple instances, students who committed laptop theft were punished more severely than those who committed rape and sexual assault,36 and that not a single student found responsible for sexual assault was expelled.37 Student activists, angered by these reports, organized demonstrations condemning the college’s lenience.38 And currently, student activists at Gustavus Adolphus College are protesting and petitioning the school to release aggregate sanctioning data after a survivor alleged publicly that the school sanctioned her rapist by requiring him to write a 500-word reflective essay.39 These examples illustrate the claims being made at schools across the country regarding the length, fairness, and transparency of investigations and sanctioning. The severity and consistency of sanctions in sexual and dating violence cases is a hotly contested issue, and student activists at Columbia and Amherst are not the only ones concerned. Accused students and their lawyers increasingly claim schools have swung too far in the other direction and are flouting procedural protections and over-penalizing students.40 A growing 35. Amherst College released aggregate information o...
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