Abstract
The usual campus responses to identity-based discrimination (gender, race, ethnicity, and pregnancy, for example) fail in addressing less severe forms of identity-based discrimination by mimicking adversarial processes found in the criminal justice system, focusing on formal investigation processes to address alleged violations. We advance a model that repairs yellow-zone behavior (cultural breaches) and argue that higher education campuses must look beyond traditional compliance-only responses toward an adaptable resolution model (ARM) grounded in restorative and mediation practices. An ARM model can mitigate and reduce yellow-zone behavior (cultural breaches) and related institutional betrayal and addresses harmful power dynamics.
Keywords
Introduction
Campus-based equity practitioners have come to understand that the usual campus responses designed to mitigate identity-based discrimination (gender, race, ethnicity, and pregnancy, for example) are inadequate in addressing less “severe” forms of these incidents and the power dynamics they embody. These less severe incidents, make up the majority of the work in campus-based equity, diversity, inclusion and compliance offices and encompass the bulk of cases overseen by campus-based equity practitioners (such as Title VII and IX) offices (Rennison, 2018).
Yellow-zone behavior is a term that campus-equity practitioners have come to describe that behavior that does not tend to rise to the level of a campus policy violation. It is not clear who first coined the term but reference can be found to it in the work of K-12 occupational therapist, Leah Kuypers and Winner (2011), who describes four zone regulations, rooted in cognitive behavioral therapy, as a framework for identifying feelings and actions. Kuypers and Winner (2011) zones are used by parents and teachers to help children self-regulate, identify coping strategies. In the healthcare world, a yellow-zone is considered a warning or high-risk zone and a likely precursor, that is, if the patient is not properly treated leading to life or limb threatening casualties and adverse outcomes (Cleveland Clinic, 2021).
Cultural breaches are intrinsically tied to yellow-zone behavior because they often flow from that “yellow-zone stage” of frustration or high-risk and represent inappropriate or damaging behavior that is not severe enough (according to campus policy) to be sanctioned. This yellow-zone behavior encompasses a very broad degree of behaviors, some of which are cultural breaches. We prefer and use the term cultural breach (es) in this work to describe the high-risk (yellow-zone) behavior as it may manifest on campus so as to avoid any association with implicitly racial color or anti-Semitic metaphor tropes such as “Yellow Peril, Yellow Terror, and/or the Yellow Specter.”
We argue that higher education campuses must look beyond a traditional compliance-only model and adopt an adaptable resolution model (ARM) that is grounded in restorative and mediation practices. Unlike its adversarial compliance-only counterpart, and limited use of informal resolution and adaptable models, an ARM model grounded in equity, diversity, and inclusion will reduce cultural breaches, address harmful power dynamics, and mitigate the impact of such behavior.
Before outlining the elements and benefits of an ARM approach, the remainder of this article is structured as follows. First, cultural breaches are defined and described. We then discuss the commonly used approaches to dealing with problematic behavior and their limitations. The paper then turns to the proposed adaptable resolution model (ARM) approach including legal considerations and benefits of such an approach.
A Cultural Breach Defined
A cultural breach occurs when one acts outside respected norms of behavior and flow from the yellow-zone behaviors described by Rennison (2018). These cultural breaches make up the bulk of the work faced by Title VII, Title IX and campus diversity, equity and inclusion offices, and infrequently meet the threshold for a campus policy violation. Acknowledging and addressing cultural breaches that occur in a university setting is critical.
Freyd and colleagues are credited with developing Betrayal Trauma Theory (BTT) which puts trauma in the context of interpersonal relationships with trust or dependency (Freyd, 2008). According to Freyd (2008), this interpersonal relationship creates a unique vulnerability to traumatic betrayal. When Freyd and various colleagues studied betrayal, they did so within the context of sexual assault and how this impacted anxiety, dissociation, and trauma-specific sexual symptoms (Smith & Freyd, 2013). Gómez (2016) further developed the notion of betrayal trauma theory to cultural betrayal trauma theory (CBTT) that occurs when a member of a cultural minority has uniquely vulnerable defenses to the betrayal of (intra) cultural trust. When a person is violated by a perceived in-group perpetrator, the victim’s (intra)cultural trust is also betrayed. CBTT places trauma in the context of interpersonal relationships with trust of dependency creating a unique vulnerability to traumatic betrayal (Gómez, 2016, 2019). We took these two definitions (BTT and CBTT) to develop the term cultural breach.
Cultural breaches take away from the very purpose of higher education—research, new discoveries, preparing the next generation of great thinkers and society workers, and advancing societal change. Cultural breaches lead to and expends valuable resources that could be applied for more productive mission-critical purposes.
Cultural breaches are also costly, serious, and impact victims. In Fiscal Year, 2018, for example, the EEOC filed 199 lawsuits against employers accusing them of unlawful employment discrimination. In that same year, EEOC staff resolved 136 of the lawsuits filed that year and previous years for a total monetary recovery of $22.5 million. By the end of Fiscal Year, 2018, the EEOC had resolved 90,558 charges of discrimination and secured $505 million dollars for litigants with an average cost to settle a faculty grievance at $250,000 (U.S. Equal Employment Opportunity Commission, 2019). Beyond a dollar cost, however, more often, the cost and impact include doing nothing, which may result in the continuation of the behavior and the person or persons on the receiving end of that behavior feeling as if the institution betrayed and failed them.
Practitioners have long been aware that identity-based discriminatory incidents that fall under Title VII share similarities with other traumatic experiences, such as domestic violence and rape (Bryant-Davis & Ocampo, 2005). As many scholars have noted, for example, for ethnic and racial minorities, racist incidents can also be conceptualized as a type of (societal) trauma (Bryant-Davis & Ocampo, 2005; Díaz et al., 2001; Gómez, 2019; Nagata et al., 2015). Practitioners have also come to realize that university policies created to adjudicate Title VII and Title IX cases have not helped in this regard. Indeed, they have been created to and focus on meeting compliance standards as set out by the Department of Education and the Office of Civil Rights (Anderson, 2020; Wang et al., 2021).
During the Obama–Biden administration, the standard that campuses needed to meet to find for a sexual misconduct/non-discrimination policy violation was preponderance of the evidence. The Devos 2020 rules introduced a new evidentiary standard to determine Title IX cases that gave post-secondary institutions the option to choose between the Obama-era standard (preponderance of the evidence) and the new standard that requires survivors to meet a higher burden (Wang et al., 2021). Alongside these new federal rules is the requirement to provide for a live hearing and cross-examination for Title IX cases. Post-secondary institutions must also now apply the same evidentiary standard in all sexual harassment cases, for example, including faculty and staff cases. It was difficult enough under the old evidentiary standards to find a policy violation let alone to adjudicate a cultural breach. The 2020 rules have made it even that more difficult.
Cultural breaches are common, take many forms, rarely result in a formal investigation, and they emanate from yellow-zone behavior. These are the breaches that are unlikely to produce a policy violation using a campus model compliance-only formula. For example, data from one medium-sized urban university campus for academic year 2019–2020 shows the campus-equity office logged 260 reports of various alleged identity-based discrimination. Of these 260 reports, 96 (37%) were internally coded by the office as sexual misconduct with the balance (164 or 63%) falling under “other protected class discrimination.” Of the total 260 reports, only 13 cases were referred to full investigation 1 . And of those 13 referrals, only three cases were moved to a formal Title IX or Title VII investigation resulting in two campus policy violations (Viveiros, 2020). In a compliance-only format, the cases that do not move to formal investigation are closed with no further remedies offered to the reporting parties. Often, the equity office will assist and/or refer these to the school or college. Sometimes that might involve some additional conferencing, discussions, and/or further education. More often, however, it includes doing nothing and opening the potential for the behavior (cultural breach) to continue and for the person or persons on the receiving end of that behavior, as we noted above, feeling as if the institution betrayed and failed them.
Existing Approaches Addressing Cultural Breaches
Universities attempt to address problematic behavior and cultural breaches in several ways. This section outlines compliance approaches, informal resolutions, and adaptable models used most commonly.
Extant Compliance-Only Models
Higher education models Title IX and Title VII policies and practices on the same adversarial processes found in the retributive criminal justice system and relies on a formal investigation process to address alleged policy violations. These offices are usually separated from the traditional diversity, equity, and inclusion (DEI) offices tasked with reducing power dynamics at an institution and creating equity and a sense of belonging for constituents. A problem with this retributive, or compliance-only model is that it does little to reduce the harm and impact of the cultural breach, does little to address the damaging power dynamics and does little to repair community impact and harm. A compliance-only model leads to unaddressed consequences and results in lasting impacts.
The primary way that universities address cultural breaches and alleged policy violations is from a compliance-only approach. The current compliance-only model on which university policies are based stem from Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 which provide protection against sex and other identity-based discrimination. (Title IX, 1972)
In this model, the case is taken under the banner of an investigation (see footnote 1), witnesses are formally notified and spoken to, the complainant and respondent are interviewed and receive notice of an investigation and a decision is rendered based on whether a policy violation can be established and sanctions, if applicable, are administered. College and university campuses have long been required to have an investigative process in place to deal with Title VII and Title IX complaints.
Limitations of the Compliance-Only Model
Adjudicating incidents of misconduct on college campuses is complex and difficult. Universities are trying to improve compliance-related procedures by dedicating greater resources to complicated investigation and adjudication processes. However, the goals of a campus adjudication process—utilizing a neutral, fundamentally fair, and unbiased approach to determine (1) what can be proven under the school’s evidentiary standard, (2) whether what happened entails a policy violation, and if so, (3) what outcome should be assigned—is often incompatible with the needs of harmed parties. This is particularly true given that lengthy investigations sometimes require a harmed party retell their story during multiple phases of a campus adjudication process (essentially retraumatizing the victim-survivor), including, in many sexual misconduct cases, during direct cross-examination. Moreover, as a result of the increase in campus sexual violence reports and student disciplinary proceedings, male students who were found responsible for sexual violence began filing lawsuits claiming that they were victims of anti-male bias (Orcutt et al., 2020).
Compliance-only models are rife with limitations. First, compliance models tend to fail to meet the needs of harmed parties (Orcutt et al., 2020), and lead to feelings of institutional betrayal. Second, compliance models are criticized for being biased against, and stigmatizing respondents (Anderson, 2020; Bell et al., 2020). Third, the compliance-only model with its investigative approach is based on retribution and offers no repair or training options for those involved in the cultural breach and fails often to deal with the power dynamics between the aggrieved parties (Bryant-Davis & Ocampo, 2005; Crenshaw, 1991; Daly, 2008; Díaz et al., 2001; Harper, 2012). Fourth, the compliance model fails to address the vast majority of behavior brought to equity and compliance offices for correction. Findings show that more than 90% of the cases to an equity office 2 do not meet the evidentiary standard for a policy violation (Viveiros, 2020). In other words, the majority of problematic behavior, while never being investigated or deemed a policy violation, remains unaddressed under compliance-only approaches.
Extant Informal Resolutions Models
A second way that some universities address misconduct and resulting cultural breaches and alleged policy violations is using informal resolutions and adaptable models. Existing adaptable models include mediation and restorative approaches aimed at dealing with the harm that is created between the parties. Such approaches are described as informal because they do not involve a process of investigation, witness and statement-taking, and policy violation adjudication. Instead, adaptable approaches aim to get the individual who caused the harm to understand the impact of their actions and to take responsibility for it (Orcutt et al., 2020).
Restorative and mediative approaches, although recently popularized in Western approaches have deep roots in Indigenous peacemaking. Native American (or American Indian) and First Nation justice philosophy and practice, healing, along with reintegrating individuals into their community, is seen as more important than punishment. Indigenous peacemaking, contrary to traditional Eurocentric justice process involves bringing together victims, offenders and their supporters to get to the bottom of a problem. The modern restorative justice movement draws from the philosophy and processes of its Indigenous origins (Mirsky, 2004).
Today, and specifically in the education context, restorative justice approaches have been used primarily in the K-12 space to resolve misconduct and conflict, successfully. Weaver and Swank (2020) explored the integration of restorative justice practices as a disciplinary approach within a middle school and found that stakeholders representing various groups—including administration, instructional staff, and students—reported success of the approach showing that restorative justice provides promise for schools seeking to implement an alternative disciplinary approach. Research regarding the use of restorative campus practices geared toward high school students have equally reported positive influences for classroom climate and retention (Knight & Wadhwa, 2014; Sandwick, Hahn & Ayoub, 2019).
The benefits of this ARM approach are now also found among college student conduct cases (Morrison & Vaandering, 2012). Extant literature demonstrates how restorative approaches compliment these student conduct processes; help students develop empathy and have a positive impact on school and campus culture, and the advancement of cultural and diverse competencies, and incurs great satisfaction by the participant (Payne & Welch, 2013; Poulson, 2003; Sandwick et al., 2019).
A Promising Alternative—The Adaptable Resolution Model (ARM) in Higher Education
Adaptable Resolution Model (ARM) Elements.
Considerations for the Adaptable Resolution Model
As promising as adaptable resolution models are, they require care in terms of appropriate implementation on campuses. First, implementation requires one to ask which types of identity-based discrimination is appropriate for an ARM because they may not be appropriate for all types of misconduct. Types of misconduct that are not appropriate for adaptable resolution models include sexual misconduct, intimate partner violence, and stalking. Universities must offer other ways to deal with this misconduct since available case law suggests that institutions that do not ensure that “informal” resolution is engaged in voluntarily may be subject to liability (or at the least, costly litigation and potentially for an Office of Civil Rights (OCR) investigation (Orcutt et al., 2020). Related to this is that voluntariness is key to ensure the success of ARM and campuses may need to tailor policies appropriately. As Orcutt and colleagues (2020) have pointed out, universities must ensure all parties engage voluntarily and this may not be possible with some gender-based misconduct.
Second, there is a dearth of literature exploring the benefits of implementing an adaptable resolution model in higher education, especially for staff and faculty. Some research has found that an ARM in higher education based on social justice principles can be successfully utilized for faculty, staff, and students (Watson et al., 2018), and that integrating conflict management behaviors is positively correlated to innovation and performance (Chen et al., 2012). Still, few higher education institutions that have or are considering adopting adaptable models are not creating these models based on blueprints from other organizations but rather taking multiple paths to system design (Klingel & Maffie, 2016); and that such adaptable resolution models are often ineffectively implemented (Anderson, 2020). This indicates the need for evaluation research to identify best practices in a college setting for students, staff, and faculty.
Third, a non-retributive (mediation and restorative) approach to discipline may be contradictory to how campus equity and compliance leaders are trained about discipline practices. Therefore, the integration of ARM requires a change in thinking about discipline and a concurrent openness to implementing an alternative and adaptable resolution approach (Orcutt et al., 2020).
Fourth, compliance obligations must continue to be met. This is possible as compliance and restorative models can exist hand-in-hand. Restorative justice models have emerged under the banner of Title IX through (1) informal resolution to resolve a formal complaint without an investigation and adjudication, or alternatively, a (2) a restorative justice model may be utilized after a respondent is found responsible, such as through a disciplinary sanction (Orcutt et al., 2020).
Fifth, as Orcutt et al. (2020) highlight, the fact that campus Title IX and VII proceedings are separate from criminal legal proceedings creates the possibility for concurrent or future civil or criminal legal proceedings. Without the promise of confidentiality in ARM, both the reporting and responding parties may not feel safe to divulge sensitive information either about themselves personally or the issues that occurred.
The Benefits of the Adaptable Resolution Model
An ARM approach offers many advantages over existing approaches. First, restorative models are known to offer a strong return on investment and promote prevention (Bell et al., 2020; Daly, 2008; Giacomini et al., 2020; Jülich et al., 2010). Mediation models offer the same benefits (Jülich et al., 2010).
Second, ARM uses practices which are better equipped to get an individual who caused harm to understand and acknowledge the impact and the harm that they caused. This could be especially potent for those individuals who have been traditionally marginalized, such, as Gómez (2019) points out, Black people in the U.S., who have experienced interpersonal trauma (e.g., physical, sexual, and psychological abuse), within a context that includes inequality at various levels. From this vantage point, an ARM supported by individuals who are grounded in concepts of power, privilege and anti-oppression work in equity, diversity, inclusion, and social justice is transformative, inclusive, and equitable to all. Such an approach would center and honor the Indigenous roots of such practices and build an ethos from which Western retributive models could learn. To be sure, Koss (2010) finds that restorative approaches increase the odds that those causing harm take responsibility for their actions.
Third, ARM is cost effective. The cost to address such cultural breaches is significantly less when using and ARM approach compared to the compliance-only approach. At a recent 2019 NAUA Conference, Draper presented research demonstrating that administrative hearings in Title IX cases took an average of 76.5 hours of staff time per case, compared to an average of 24.5 hours of staff time per case using an ARM approach (Orcutt et al., 2020).
Fourth, despite the fact that instituting adaptable or restorative practices are often a culture shift for all involved, the switch from punitive, zero-tolerance and retributive models of discipline regarding students in higher education has been largely positive (Morrison & Vaandering, 2012). It stands to reason then that such models seem crucial both for overall campus success and a more inclusive, less stratified higher educational system.
Fifth and beyond the student arena, restorative models are needed in the realm of staff and faculty. For example, a recent pilot survey of 48 academic leaders conducted at the University of Colorado demonstrated the extent to which leaders experienced mental health, cognitive and somatic symptoms over the last month, and about whether their health symptoms were related to challenges leading people. The study found that leaders with higher symptoms were more likely than leaders with lower symptoms to attribute their symptoms to the challenges of leading people. Moreover, the pilot study also found that less than 20% of the issues reported with managing people led to a Title IX or Title VII investigation and instead was more likely to go to mediation (19.6%), formal grievance (26.1%), litigation (6.5%), disciplinary action (21.7%), or other (26.1%). These data also revealed that the problem faced by academic leaders were more likely to be culture-based in nature (54.2%) with time spent on these issues amounting to anywhere from about 10% to about 60% of clock hours per week (Bonomi et al., 2020).
A Comparison of Approaches.
Conclusion
The ARM is flexible in its design out of the belief that there is not a one-size-fits-all response that meets the needs of all reporting parties and helps all respondents acknowledge the harm that they potentially caused. An ARM model offers the promise to deal with the harm emanating from cultural breaches. An ARM practice co-located alongside a pre-existing compliance-only approach can prove more cost efficient and once implemented will become part of the fabric of the institution, especially with the promise ARM practices offer in repairing harms and breaches that do not rise to policy violation.
Fundamentally, an adaptable resolution model that aims to tackle the harm emanating from cultural breaches involves trust and the belief that the future holds promise for a better outcome. Coming together to find common ground is something a retributive model has never and will never offer. Nor has the retributive model easily loaned itself to provide space for multi-partiality, understanding, empathy, shared solution-building, and mutual goal fulfillment. Retribution models deliver only on their promise to prove (or not) a campus policy violation. Reframing how campuses approach yellow-zone behavior offers higher education institutions transferable content and creates intentional space for inclusive conflict excellence (through a DEI focus), integration, application, transformative, and procedural sound justice. 4
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
