Saturday, May 11, 2013

Resolution Agreement Binds Montana to Better Address Sexual Assault

The Department of Justice and the Department of Education's Office for Civil Rights recently concluded their joint investigation of the University of Montana, which had commenced last May in response to claims that the University failed to adequately address reported incidents of sexual assault on campus.  In the investigation findings, the government agencies noted that the University had already undertaken many efforts to change policies, practices, and culture around sexual assault -- including, for example, the mandatory online training we'd blogged about last summer.  But, they determined, these efforts did not constitute "sufficient effective action to fully eliminate a sexually hostile environment, prevent its recurrence, and address its effects."  One problem was the University's confusing maze of sexual harassment and sexual assault policies -- 8 of them! -- which did not clearly coordinate with or cross reference to each other, and which use inconsistent definitions and reporting procedures.  The policies failed to adequately cover the broad array of conduct that could constitute sexual harassment not rising to the level of sexual assault, nor did they adequately cover off-campus conduct.

Another problem was that the University did not distribute to students information on how to file a grievance, and it was hard to find relevant information on the university's website (some of which is filed under "human resources," implying that it does not pertain to students). The lack of clear requirements regarding grievances has created much confusion among students about whom it was necessary to report to in order to trigger a university investigation and disciplinary process. 

Additionally, the government found that the university's disciplinary process was inadequate for ensuring victims' rights under Title IX.  For one reason, it is lengthy -- providing perpetrators up to five opportunities to appeal before receiving disciplinary action.  This violates the law's requirement to resolve sexual assault claims promptly.  Also, the disciplinary process required the ongoing participation of the victim, when under Title IX, a university's obligation to investigate and respond to sexual assault is not contingent on the victim's involvement.  The government also found incidents in which the University failed to take interim measures to keep victims safe, such as changing the student's academic schedule or living situation.  The preponderance of evidence standard, which is supposed to govern disciplinary procedures involving sexual assault, is not consistently stated throughout the university's policy.  The disciplinary procedures also give more rights, such as the right to question witnesses and the right to appeal, to the accused, when Title IX clearly requires that the victim and accused have equal rights in the disciplinary process.

To resolve these shortcomings, the University has entered into a resolution agreement, which the government is calling a "blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault," that requires the University to correct the problems identified in its policies and procedures for addressing campus sexual assault and harassment, including by creating better, more easily accessed resources for students.  The university must also regularly assess the campus climate regarding sexual assault, and provide mandatory training to students to ensure that they recognize sexual assault and harassment when it occurs, and that they know how to report it.  The agreement also requires the University to better train its Title IX Coordinator as well as other campus personnel who deal with sexual assault. 

The University's campus police force has also entered a resolution agreement to address its shortcomings in response to reports of sexual assault. The Department of Justice's investigation of the Missoula Police Department and Missoula County Attorney's Office, for its similar alleged deficiencies remains ongoing.

The timing of this resolution corresponds to an uptick in complaints, by students, against universities for failing to adequately address campus sexual assault.  With increasing public awareness and attention to the issue, it was smart of the government to offer these comprehensive findings as a "blueprint" for others to follow, since the findings against Montana are by no means unique.