Tuesday, April 29, 2014

Tufts Revokes Resolution Agreement with OCR

Yesterday the Department of Education's Office for Civil Rights announced that it has found Tufts University in violation of Title IX for its response to a student's report of sexual assault by another student in 2010. This finding of noncompliance, however, caused Tufts to back out of a resolution agreement that it had earlier signed, in which the university would have agreed to take certain steps to revise its policies to ensure compliance.  The university apparently "revoked" its commitment to that agreement after OCR determined that it would be accompanied by a finding that the university had not complied with Title IX.

Given that Tufts has vowed to take the steps outlined in the agreement anyway, some view the university's formal revocation as a sort of protest against OCR "overreaching" and consistent failure to negotiate in good faith as "Washington officials frequently veto[] agreements hammered out by regional government lawyers."  Yet it is a protest that could potentially cost Tufts its federal funding-- including student financial aid -- which OCR has the power to withhold for noncompliance.  In all of Title IX's history, however, the agency has never taken that step, preferring instead to resolve compliance disputes through negotiated agreements like the one revoked by Tufts.  Barring some kind of reconciliation between Tufts and the OCR, the agency could initiate proceedings to take the unprecedented step of revoke a university's funding -- an outcome that Tufts could then appeal to federal court. 

By way of background, the dispute between Tufts and OCR stems from a complaint the agency received in 2010 from a student who alleged that the university failed to adequately respond to her report of sexual assault and did not take steps to ensure that she was protected from retaliation and hostility that followed. OCR initiated an investigation, which revealed numerous shortcomings in the university's response, including failing to conduct any investigation at all for the first six months after receiving the student's report -- which the university did out of mistaken belief that no such response was necessary unless or until she reported the assault in writing.  Eventually, the university did conduct an investigation, but did not release the findings until 18 months after officials were first notified of the assault. The University also failed to provide the student with "effective interim measures" including not ensuring her physical separation from the accused student in their mutual residence hall and classes. While the disciplinary proceeding against the accused student failed to find him responsible for sexual assault, OCR's investigation noted certain improprieties in the process that could have unfairly influenced its result -- including that the accused student's counter-allegation against the student (alleging fraud) was considered as part of the same proceeding.  OCR's investigation also revealed similarly lengthy time frames for resolving other reports of sexual harassment and violence, and that the university lacked a Title IX Coordinator for a substantial length of time. OCR also found that Tufts had already corrected many of problems that surrounded its 2010 response, but still sought to require the university to take certain remedial steps going forward, including revisions to its policies to ensure "prompt and effective response" to allegations of sexual harassment and sexual violence and implementation of mandatory training for students, faculty, administrators, and staff.  OCR also would have required Tufts to provide "monetary compensation" to the student, and to review its responses to other students' reports of sexual assault to ensure that they were properly handled, and to address any identified concerns.