Friday, May 30, 2014

TIME focuses on campus sexual assault

The May 15 issue of TIME magazine devotes considerable attention to campus sexual assault and the reaction to the activism that has resulted from increased awareness and demands for justice. Alas, you cannot access all the articles online without a subscription. But the magazine addresses many aspects of the issue.
In the piece "The Sexual Assault Crisis on American Campuses," (subscription needed) Eliza Gray points out to anyone who does not yet know that the rate of sexual assault on college campuses is much greater than previously reported. (Many people knew--anyone who ever attended Take Back the Night knew the stats--fewer people paid attention.) But the idea that a school with 80 reported sexual assaults a year, like University of Montana, which opens the story, is a "rape capital" and somehow unusual is a quickly falling myth.
Another piece in the issue, penned by attorney Gloria Allred, is calling this current moment of activism against campus sexual assault "one of the most important civil rights movements of our time." I agree. It has been fascinating and inspiring to watch from the periphery this widespread movement of young women, especially as some of us who are a little older continue to argue that we are not in the era of postfeminism and that we still need to be actively engaged in fighting gender, race, class, age, size, ability discrimination.
The president of Dartmouth College, which has been one of the hotbeds of activism, also wrote a piece for the issue. Philip Hanlon focused on prevention and intervention. It is a brief piece in which he mentions the establishment of the Dartmouth Bystander Initiative meant to educate the campus community and the upcoming conference Dartmouth is hosting in July which will bring together leaders across the country to talk about prevention.
Senator Kirsten Gillibrand, who recently made a push to fund more employees at the Office of Civil Rights for the purpose of investigating complaints around campus sexual assault, added to the issue by advocating for more reporting and greater transparency.
Joe Biden wrote a little blip about putting the force of the White House behind this initiative.
Actress Mariska Hargitay writes about ending the violence by shifting blame off of victims.
In a one-of-these-is-not-like-the-others moment, Christina Hoff Sommers of the American enterprise Institute, ever the defender of the boys, is worried about what she sees as the mounting false accusations against college men and the "kangaroo court justice" she believes they are subject to. She gives a list of seven men who are challenging the rulings of their respective schools against them. She notes that it is only a partial list. I wonder how that list compares to a list of women whose reports were ignored or delayed or whose assailants were never or only marginally punished. There is no perfect system. The systems that exist right now amidst this rape culture that Sommers seems to sneer at undoubtedly favor men. Every man? No. As a group? Yes. Are there systems to address false accusations? Yes. The men who have taken their cases to the legal system are utilizing them.
In a similar vein, Matthew Kaiser, a defense attorney who has represented several of the men challenging the punishments from their institutions, writes that many of the consent laws are unfair to men. He focuses on the role of alcohol and the ambiguous situations created when individuals have been drinking. Like Sommers, he takes the few cases he has seen and makes generalizations that cannot be supported. He also suggests that the Department of Education is compelling schools to automatically take the side of a female victim or face sanctions. I think the hundreds of women who have filed complaints would take exception to this notion.
Caitlin Flanagan, who recently wrote a very good piece about fraternities for the Atlantic, calls for more transparency about and attention to the sexual assault that occurs at fraternities. In a disturbing example of exactly what rape culture is, Flanagan reports that built into fraternity budgets are the costs of insurance claims made against fraternities every year for sexual assault. She also points out of one the gaps in the recently released federal guidelines: there is nothing that mandates the public reporting of where assaults take place, thus no way to tell the campus community which fraternities have a problem with sexual assault.

Wednesday, May 28, 2014

Five More Universities Under Investigation

The Department of Education announced today that it has opened five additional investigations into  campuses policies and practices surrounding sexual violence, bringing to 60 the previous tally of 55 that had been announced by the Department earlier this month.  The five institutions are: University of Akron, the University of Alaska system, University of Delaware, Elmira College in New York, and Cisco Junior College in Texas.

Huffington Post had earlier reported about a complaint filed about Akron, which contained allegations that that its sexual assault policies were copied from another school's and, as a result, contained references to offices that did not even exist at the university. That complaint also charged the university with delay and careless investigation practices. Otherwise, we know little about the specific nature of these investigations, such as whether they were initiated by a complaint or were undertaken by the agency's own initiative. 

HuffPo is keeping track of all of the sexual assault-related Title IX investigations and pending complaints on a handy Google map

Friday, May 23, 2014

Student Complains that Brown Did Not Adequately Punish Rapist

Brown University student Lena Sclove filed a complaint yesterday with the Department of Education's Office for Civil Rights, accusing the institution of violated Title IX and the Clery Act by failing to adequately sanction the student who choked and raped her in August 2013, as well as other shortcomings in its response to that incident. After a disciplinary hearing held last fall, the university determined that Sclove's assailant was responsible for  numerous violations of the university's code of conduct, including "sexual violence involving physical force and injury."  The disciplinary panel recommended that the assailant receive a two-year suspension, so that Sclove could finish school without running into him on campus.  However, a Brown official reduced the sanction to one year, and counted last fall semester towards that time. This means that the assailant could potentially return to campus in August 2014, a year after committing rape against Sclove.

Title IX does not require universities to impose specific disciplinary measures on students found responsible for sexual assault.  Yet it is certainly arguable that the sanction in this case was too short to satisfy the university's general obligation to "eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects." 

A second allegation in Sclove's complaint is that the university did not inform her of her rights to file criminal complaint as well as a student misconduct complaint.  On this point, the compliance obligation is clear. According to the 2011 Dear Colleague Letter, "A school should notify a complainant of the right to file a criminal complaint, and should not dissuade a victim from doing so either during or after the school’s internal Title IX investigation."

It is now up to OCR to determine whether to open an investigation into the allegations in Sclove's complaint.  Meanwhile Brown, for its part, has announced plans to create a sexual assault task force and to move to "a position of national leadership for prevention, advocacy, and response to issues of sexual assault."

Wednesday, May 21, 2014

Tufts revises and resubmits

Tufts has changed its sexual assault policies and procedures and is resubmitting them to OCR for approval. Last month, the school backed out of an agreement, they say, after being told by OCR that their policies--revised after a complaint filed in 2010--were not in compliance.
The refusal to sign the agreement created quite a stir on campus and beyond when it seemed liked Tufts did not care about fully protecting its students and creating a safe campus. This sentiment is countered by Tufts administrators who say that if the shortcomings of the policies had been pointed out to them prior to the resolution agreement, the necessary changes would have been made.
Now they have been made. The version Tufts is submitting to OCR now includes the addition of two staff members, training on all of the university's campuses, and putting in writing aspects of procedure that exist but are not currently recorded anywhere.
President Anthony Monaco said the revisions were easy to implement.
Who is at fault here remains somewhat ambiguous. But it does not appear that both sides have greater clarity. Tufts has agreed to continued monitoring by OCR. And the university's task force on sexual assault will continue to review policies over the summer.

Sunday, May 18, 2014

Prom and yearbook season consternation

We don't write about every story we hear about high school students prevented from going to the prom in the attire they want or with the date they want or students whose pictures or profiles go unpublished in the student yearbook because of expressions of gender or sexuality that schools dislike. But this story about a female student at a Catholic school in San Fransisco caught my attention for a few reasons. We generally assume that everything in San Francisco is great when it comes to expression of gender identity and sexuality. But this female student, who wore a tuxedo for her senior yearbook photo, was told her picture would not appear in the yearbook as is because she did not wear the prescribed drape mandated for female students. And so it appeared that the religious culture of the parochial school was going to trump the culture of the city in which it resides.
But in a heartening moment of activism and solidarity, Jessica Urbina's classmates protested any alterations to her picture and affirmed her choices by wearing neck ties to school last week. It should be noted that Urbina wears male clothes to school daily, seemingly without any reprisal from the administration.
The campaign to keep Urbina in a tux seems to have worked. The school said that the "events have sparked a campus-wide dialogue which will result in a revision of policy." Whether the school would be compelled by federal or state law to change the policy is unclear because we don't know, for example, if the school takes federal dollars which would subject them to Title IX. But no legal entities or advocacy groups have stepped in at this point--and they may not need to.

Friday, May 16, 2014

Court Dismisses Accused Student's Title IX Claim

Last year we blogged about a lawsuit filed against St. Joseph's University by a student who was suspended after the university found him responsible for raping another student. Among other claims, the plaintiff, Brian Harris, alleged that the university's failure to follow its own procedure amounted to a breach of contract, and that the university violated his rights under Title IX.  On Tuesday, however, a federal district court in Pennsylvania granted the university's motion to dismiss these claims and several of Harris's tort claims as well. The Title IX claim, the court reasoned, did not sufficiently allege that the university was motivated by the plaintiff's sex in the manner that it investigated and adjudicated the accusation of rape -- the outcome we predicted in our earlier post.  The breach of contract claim failed for relying on "conclusory and insufficient allegations" such as claiming that the university did not provide "fair" notice or employ "adequate" procedures rather than specifying what precisely amounted to a breach of contractual terms contained in the student handbook.

However, the court did not dismiss Harris's claim against the university for defamation  At this stage of litigation, the court's only inquiry is whether the plaintiff's allegations, if true, would constitute a violation of law.  Harris alleged that the university defamed him by referring to him publically as a perpetrator of sexual assault while knowing this to be false.  If the university produces evidence that establishes its basis for believing that to be true, then it should be able to get that claim dismissed later at the summary judgment stage.

Decision: Harris v. St. Joseph's University, 2014 WL 1910242 (E.D. Pa. May 13, 2014).

Thursday, May 15, 2014

Naming names: Transparency and safety on campus

As I wrote yesterday, some people have begun campaigns to bring to light campus sexual assaults. The transparency at the government level with the publishing of the list of schools currently under investigation has been only part of public revelations. The campaign by Ultra Violet is one such effort. Even more grassroots are the publishing of names of rapists on their respective campuses. At Columbia, the names of alleged rapists have been written in bathroom stalls and left on fliers in the stalls.
[The trustee at Occidental who wanted names would have been quite pleased with the disclosure.] 
The victims and their allies at Columbia have been quite vocal in their displeasure with the administration's handling of sexual assault cases.
But they are not the first to publicly reveal the names of assailants.
At both Brown and William and Mary, individual women who were sexually assaulted publicized the names of their attackers when their respective universities found them guilty but let them re-enroll.
And students at schools including Portland State and American University are using social media to name names.
Obviously there is a danger of false accusations and witch hunts. But I argue that these efforts are a result of the continued secrecy of many schools. Perhaps as schools do better investigating cases and appropriately punishing perpetrators, there won't be a need for the publishing names in order to protect others.

Oregon's Response to Sexual Assault Draws Complaint on Behalf of Suspended Students

A former city counselor in Eugene, Oregon  has filed a complaint with the Department of Education's Office for Civil Rights, alleging that the University of Oregon's decision to suspend three male students and kick them off the basketball team violated their rights under Title IX.  In March, a female student alleged that she was sexually assaulted by the three basketball players, twice at an off-campus party and then later in an apartment shared by two of them.  The local police investigated, and ultimately did not bring criminal charges against the players because there was insufficient evidence to establish the absence of consent, which for criminal purposes must be proven beyond reasonable doubt. The university, however, which operates under the lower burden of proof that is applied to non-criminal matters, suspended the students and, in response to student protest, separated them from the basketball team (albeit after two of the three competed in post-season play while the police investigation was pending).

Now, a defender of the accused -- Eugene resident Kevin Hornbuckle -- is arguing that the university is engaged in sex discrimination against male students in general and against the three basketball players in particular.  The complaint accuses the university of impugning their reputation and creating a climate of fear and hostility toward men. 

My prediction is that this complaint will not lead to an investigation.  Since the university is required apply a more balanced standard of proof, it is defensible for it to determine that the players were responsible even though police did not find overwhelming evidence against them that is necessary for criminal prosecution.  The resulting damage to the players' reputations, which the complainant alleges, does not seem to me actionable under Title IX since it does not seem plausibly motivated by hostility based on the players' male sex.  

In fact, Oregon may have more to worry about in the possibility of a complaint alleging that they did not do enough in this case to protect the victims and other potential victims. In particular, the university's failure to suspend the players sooner has drawn criticism.  The victim's father reported the assault to campus officials the morning after the incident (March 7), but the University waited until the police report was complete (April 30) before suspending the players -- allowing the players to compete in the NCAA tournament.  This contravenes a clear directive from OCR that universities must respond promptly to reports of assault, and not wait on local law enforcement. It has also come to light that one of the players had allegedly assaulted a female student at Providence College prior to transferring to Oregon. Oregon coaches deny knowing this when they recruited him, but if it turns out that there is a reason why they should have known, that could also warrant a Title IX enforcement action by OCR.

UPDATE: I just read that, in fact, Oregon is facing a complaint for not having properly responded to the victim's report of sexual assault.  OU Psychology Professor Jennifer Freyd alleges that the university violated the Clery Act when the campus police failed to log the call it received from the victim's father reporting the assault the day after it happened. Freyd also alleges that the university violated the law a second time when it failed to issue a campus-wide alert that they had received a sexual assault report and that one of the players was a repeat offender. 

ACLU Challenges Single-Sex Classes in Hillsborough County, Florida

On Tuesday, the ACLU filed a complaint with the Department of Education's Office for Civil Rights challenging the Hillsborough County (Florida) School District's implementation of single-sex education throughout the district.  Fifteen elementary schools and one high school in the county have single-sex classes, while two of its middle schools are entirely segregated by sex.  The ACLU's complaint alleges that the school district has not provided a valid justification for separating the sexes, as required by Title IX, but instead is basing its decision on discredited science rooted in stereotypes. The district allegedly claims that separation is necessary to tailor curriculum to differences in brain development and learning style, including, for example, that “[b]oys engage with non-fiction and stories with action or ‘blood and guts.’ Girls more readily respond to simulations, discussions, and analyzing characters and relationships."  One of the elementary schools uses to boys' class "incorporate sports and competition in learning and classroom management" and promotes tolerance for "behaviors such as humming, tapping, standing, etc."  In contrast, the girls class "will implement a calmer environment that appeals to girls.”

Title IX regulations generally prohibit single-sex classes, but allow exceptions when such classes are substantially related to a plan to promote students' academic achievement or other particular identified student needs.  In no case, however, can permissible justification for segregation rely on "overly broad generalizations about the different talents, capacities, or preferences of either sex."  The regulations also require that any sex segregation be "completely voluntary" and offer parents and students the option of a coed alternative.  In this case, the ACLU also challenges the voluntary nature of the program by calling out the misinformation provided to students and parents in order to gain their consent.

Part of ACLU's apparent motivation in challenging Florida's second-largest school district is to send a message to the other Florida districts likely to follow suit when a new state law takes effect on July 1 that requires training for teachers in "gender-specific" classrooms. It is urging federal intervention, and state investigation, to ensure that this law doesn't put Florida schools in violation of Title IX.

Wednesday, May 14, 2014

A new type of punishment?

Reporters frequently ask us what the punishment is for failure to comply with Title IX regulations. And we always say something to the effect of "loss of federal funding...but that's never happened."
I continue to believe that one of the informal punishments, or at the very least, negative consequence, is the bad publicity that comes from accusations and findings of violations. In the situation many schools are facing with the visibility of complaints based on the handling of sexual assault cases, this "punishment" is fairly light, especially for victims of the crimes and their mishandling.
But the effect of public opinion may be having a larger impact than many schools would like. And an activist group called Ultra Violet is attempting to sway public opinion--specifically the opinion of applicants--by taking out ads aimed at informing students about the problems with sexual assault on various campuses. They have thus far targeted Dartmouth, Occidental, Berkeley, University of Michigan, Brandeis, American University, FSU, and Harvard.

There doesn't seem to be a rationale for why they have picked these particular schools
The group is claiming responsibility for the 14% drop in applicants to Dartmouth this year. I think that it would be difficult to prove a direct cause and effect there. It's not as if Dartmouth doesn't already have a reputation. Long before the recent revelations and investigations, there was publicity about the Dartmouth fraternities and their effect on campus culture. (Also, other schools are seeing double digit drops in applications as well. Inside Higher Ed  reported a similar drop at Quinnipiac which is being attributed to the economy.)
Regardless, the campaign by Ultra Violet is drawing attention, though some schools don't need any help.

The president of Occidental College, which is still under investigation and has already agreed to a settlement for Clery Act violations, has noted the potential damage to the college's reputation. Ironically, the administration's focus on a positive marketing message has caused greater negative publicity with charges that administrators have not done enough to actually remedy the problems on campus. The attention to image and legal defenses has drawn continued protests by students and alums. Donations are down and trustees are not too happy with all the negative press. At a trustee event a few weeks ago, trustees got into it with student, faculty, and alumni protesters who stood outside the event with signs expressing solidarity with victims. One trustee demanded names of rapists from the protesters and questioned their integrity when they told him to go ask administrators.

The tactics of Ultra Violet have been called "aggressive," a problematic description when it comes to female activism. I haven't seen anyone call Occidental's campaign to improve their image by hiring outside PR consulting firms (and refusing to report the costs) or confiscating the computers, phones, and records of professors as aggressive. And it's not as if the passive responses to campus sexual assault that so many schools now stand accused of has been successful.

Saturday, May 10, 2014

Colorado pays settlement to sexual assault victim

The University of Colorado Boulder will be paying out a $32,500 settlement to a student who was sexually assaulted by another student last year. The victim reported the assault but the perpetrator was allowed to stay on campus for four weeks,  received a $75 fine, and an 8-month suspension.
The settlement includes no admittance of guilt or liability by the university. It should be noted, however, that the complaint filed by the victim is still under investigation.
Also, the university is still in the process of hiring a Title IX coordinator--a recommendation from a recent external review.
This is all a little bit troubling given that this is not the first time Colorado has had very public issues with campus sexual assault that was improperly handled. In fact, I would argue that the Lisa Simpson case from 2007 earned the university far more publicity and cost a lot more--$2.5 million.
Given that the ultimate sanction for Title IX violations--loss of federal monies--has yet to be enacted, I have repeatedly said that the negative publicity is itself a deterrent. But Colorado has had plenty of that in addition to paying out millions of dollars and yet it cannot seem to even hire a Title IX administrator and clean up its policies and procedures. Part of the problem could be the attitude of administrators and staff about sexual assault. If it is all represented by the statements of the university's chief legal counsel, there will continue to be trouble. Patrick O'Rourke  said that the university needs to make "intelligent and prudent business decisions" to best serve its mission without being involved in litigation.
Perhaps the university community would be better served if the handling of sexual assault was not based on a business model.

Friday, May 09, 2014

VMI's Sexual Assault Policies Violate Title IX

The Department of Education's Office for Civil Rights announced today that it has found the Virginia Military Institute in violation of Title IX for not protecting female cadets from a sexually hostile environment and for failing to provide prompt and equitable resolution of their claims of sexual harassment and sexual assault.  OCR's findings detail six separate instances in the last five years where a cadet's report of sexual violence was not handled properly. In one case where a cadet was assaulted by an administrator, the institution conducted an incomplete investigation and the findings that the assault had occurred were overruled by its Superintendent. Other problems included delay and failing to notify complainants of the outcomes in their cases. OCR also found that VMI violated Title IX by requiring female cadets who are pregnant or parenting to resign or face expulsion. 

VMI has entered into a resolution agreement with OCR in which it agrees to combine its four separate policies into a single, unified policy governing sexual violence and harassment for both cadets and staff.  This policy will also ensure the prompt and equitable resolution of complaints by,   for example, specifying time frames for the resolution process, clarifying the institution's obligation to investigate reports of assault that are also under investigation by local law enforcement, and spelling out interim measures it will take to protect those who report assault while their grievances are pending. VMI also agrees to conduct annual climate surveys, sexual assault prevention programs, and training for staff and cadets about their rights under Title IX.  For the next academic year, the school will also submit to OCR all of the sexual harassment and assault complaints that it receives, as well it its investigative files and findings.  VMI has already rescinded the policy calling for cadets who are pregnant or parenting to resign or be separated from the institution.

The agency also investigated an allegation that the institution's tenure and promotion policies violated Title IX.  Though it did not make findings of noncompliance in this area, VMI has agreed to revise those policies as well, "to clarify the role of the dean of the faculty and to specify the sources of information upon which the dean may base his recommendation to the superintendent concerning candidates for tenure and promotion."

Women have been accepted for admission to VMI since 1997, following a Supreme Court ruling that the state of Virginia violated the Equal Protection Clause by operating a state institution that discriminated on the basis of sex.

Thursday, May 08, 2014

Former Student Files Complaint Against Northeastern

A former student has reportedly filed a complaint alleging that Northeastern University did not adequately respond to her report of having been raped by another student in 2011.  The university allegedly discouraged her from reporting, failed to inform her of her rights, and withheld counseling services. It then took the university four months to hold a hearing.  The university did find the accused student responsible for the rape, but he appealed, arguing that there was not enough evidence for the university to find she had not consented.  The appeal remained pending for a long period of time, during which he withdrew and transferred, and she dropped out in defeat.

This case helps illustrate why delay is such an effective tactic by universities seeking to suppress sexual assault and -- for political, financial, and legal reasons -- avoid expelling or otherwise sanctioning offenders.  Delays increase the likelihood that the victim will graduate or otherwise leave before the final resolution of the case.  Because of cases with delay allegations like this one, the Department of Education now requires investigations to be completed within 60 days in most cases and imposes a "reasonably prompt" time frame over disciplinary proceedings.    

Though not directly raised by the allegations against Northeastern, another common tactic that universities use to avoid sanctioning for sexual assault is to find the accused student responsible after the initial hearing, but to allow him to secretly and successfully appeal his sanction. We do not know that Northeastern was playing that particular game, but that may only be because the student transferred before his appeal was resolved.  Notably, the Department of Education now requires the university to notify both parties to a grievance proceeding of the outcome of both the initial hearing and any appeal.

It is now up to OCR to decide whether to open an investigation against Northeastern. If so, Northeastern would join the list of 55 schools with similar pending investigations. 

Wednesday, May 07, 2014

What counts in Dept of Ed's new list

An article HuffPo raises the issue of what counts when it comes to the Department of Education's newly published list of schools under investigation for Title IX violations based on the handling of sexual assault cases.
Title IX, of course, covers other aspects of gender discrimination including, for example, retaliation taken against someone who complains about the mishandling of a sexual assault case. But if such a complaint were made and is being investigated, that school would only appear on the list if there was also a complaint related to the actual handling of a sexual assault case. And so, based on information HuffPo received from the Department of Education, there are over 30 more schools under investigation for something that could be related to the ways in which schools handle reports of sexual assault including the lack of a designated title IX coordinator (which obviously has effects beyond sexual assault) and the lack of published grievance procedures.
In short, the list published last week has a more narrow scope.
What this seems to indicate is that--like seemingly everything related to Title IX (as last week's many pages of information also illustrated--everything needs a little clarification.

Tuesday, May 06, 2014

After Withdrawing, Tufts Recommitted to Voluntary Resolution Agreement With OCR

Last week we described how Tufts University "withdrew" from a voluntary resolution agreement it had previously signed with the Office for Civil Rights over a disputed finding that Tufts was not in compliance with Title IX in the manner it handled reports of sexual assault.

Later in the week, however, Tufts recommitted to the agreement, with a university spokesperson confirming that the university "considered a signed agreement to be in effect."  This development seems to have averted the potential for a standoff between the agency and the university that could have jeopardized the university's federal funds.

Chanting "resign or re-sign, we need our Title IX," more than 100 students protested after Tufts denounced the agreement, even though the university claimed it would still commit to the same course of action outlined in the agreement.  The university's recommitment to the agreement was announced after the protests' leaders met with university officials for several hours.

Friday, May 02, 2014

Dept of Ed releases list of schools under investigation

As Erin noted in yesterday's post, one goal of the task force was greater transparency at the federal level about investigations and procedures. To that end, a list of schools currently under investigation have been published on the Department of Education's website.
Other entities--including us--have attempted to track complaints, but we can only do this based on whether media outlets pick up or are made aware of the complaints. HuffPo has had one of the most complete lists until now; but the number of schools now posted is nearly double what we knew.
As noted in the press release, the schools are under investigation for the mishandling of sexual assault; they have not been found in violation of federal law at this time.
As Erin noted in the NYT piece linked above, we hope that one of the outcomes of this public reporting is more proactive measures by schools to make sure they don't end up on the list.

Task Force Report Promotes Climate Surveys and Sexual Assault Prevention

As we've noted, the White House Task Force to Protect Students from Sexual Assault released a report this week that makes recommendations to universities for assessing and preventing sexual violence.  One of the report’s key recommendations in this area is that colleges and universities conduct climate surveys to better identify the scope of the problem on individuals campuses. Sexual assault is notoriously underreported by survivors, so the Task Force recommends a more comprehensive climate survey to provide more meaningful information about prevalence of sexual assault as well as students’ attitudes and awareness. The Task Force has provided colleges and universities with this survey toolkit and encourages them to conduct climate surveys next year. The Task Force will also explore legal options for requiring schools to conduct these surveys.

With respect to prevention, the Task Force report seeks to identify best practices for reducing the sexual violence incidence rate on college campuses. Toward this end, the report links to findings by the Centers for Disease Control and Prevention from its systematic review of primary prevention strategies.According to these findings, the most effective strategies are “sustained (not brief, one-shot educational programs), comprehensive, and address the root individual, relational and societal causes of sexual assault." The report also outlines promising bystander intervention strategies, as well as support for further prevention-focused research. Of particular interest (and source of pride) to the Title IX Bloggers, the bystander intervention material cited in the report was produced by our alma mater, the University of New Hampshire (see also).  UNH was also one of three institutions -- along with Johns Hopkins and the University of Texas at Austin -- singled out for leading the future of research in the area of sexual assault prevention. 

As an additional component of its prevention effort, the White House has released this public service announcement that speaks directly to men about consent and bystander intervention.

The report also contains recommendations to improve universities' response to reported assault, as well as government enforcement.  I've summarized those recommendations in an earlier post

Thursday, May 01, 2014

OCR to Investigate Harvard's Handling of Sexual Assault

The Department of Education's Office for Civil Rights announced this week that it will open an investigation into whether Harvard's response to sexual violence on campus complies with Title IX and other federal law.  The investigation was prompted by a complaint  filed with the agency on March 31 that includes testimonials of 10 students alleging that the college mishandled their allegations of sexual assault.  Such allegations include:

-- lack of clear information provided to survivors about options for redress and interim support
-- failure to provide survivors with written notification of the outcome of the adjudication process
-- college officials' indifferent attitude, as exemplified by one who told a woman of color that "it is in your culture that men are gropey," and by others who suggested the victim's drinking was to blame
-- unenforced orders of no contact
-- failure to adequately punish those found responsible for sexual assault (a one-semester suspension, for example)
-- confusion about the college's jurisdiction over misconduct that happens at Harvard's "finals clubs" which are not technically college property
-- a policy that defines actionable sexual violence in an overly-narrow way by requiring "physical force or the threat of bodily injury"

OCR reports that as part of its investigation into the complaint, it will visit the campus to review records and conduct interviews. Meanwhile, Harvard president Drew Faust has announced the creation of a new task force to improve the university's policies and practices regarding sexual violence.  University-wide reform is clearly warranted; Harvard Law School has been the subject of a similar OCR investigation since 2011. 

White House Task Force Report on Campus Sexual Assault Calls for Improved Institutional Response and Government Enforcement

As Kris mentioned in a recent post, the White House Task Force to Protect Students from Sexual Assault released its first report on Tuesday, announcing recommendations for universities and government agencies on how to challenge the alarming statistic that 1 in 5 women, along with a smaller proportion of men, is sexually assaulted while in college. The report, titled Not Alone, focuses on four main subject areas: assessment, prevention, response, and enforcement.  In this post, I will post some more details on the report’s treatment of the latter two items.  In a follow-up post, I’ll summarize the report’s suggestions for assessment and prevention.   

Regarding universities’ response to sexual assault, the Task Force first addressed the issue of confidentiality.  The report confirmed that university officials can still protect a student’s desire for confidentiality by making clear to a student before she reports a sexual report which university officials can maintain her confidentiality and which may be legally required, in certain circumstances, to divulge information in order to protect the campus as a whole.  To this end, the report includes a model reporting and confidentiality protocol. It also references the guidance document from the Department of Education’s Office for Civil Rights, also released Tuesday in a coordinated effort, which confirms that on-campus counselors and victims’ advocates can legally maintain a victim’s confidentiality and not be mandated to report information about sexual violence without the victim’s consent. The report notes other ways institutions can improve their responses to sexual assault like training victims advocates to provide emergency and ongoing support.  Relatedly, it announced that the Department of Justice’s Office on Violence Against Women will help train school officials to better address victims’ trauma. 

On the policy side, the Task Force report provides this checklist to assist universities in drafting or evaluating their sexual misconduct policies.  It also addresses some of problems plaguing disciplinary proceedings.  Referencing the Department of Education’s new guidance, the report clarifies that questions about the survivor’s sexual history with anyone other than the alleged perpetrator should not be permitted; that adjudicators should know that the mere fact of a previous consensual sexual relationship does not itself imply consent or preclude a finding of sexual violence; and the parties should not be allowed to personally cross-examine each other. 

The Task Force report also suggests some key ways to improve the government’s enforcement of laws like Title IX, Title IV, and the Clery Act, which require institutions to prevent, respond, and report sexual assault on campus. For one, the Task Force has vowed to improve transparency by posting enforcement data on its website,, which will also provide instructions on filing complaint and other resources for survivors and others. It also notes that the Department of Education will soon post all recent resolution letters and agreement on its website, as well as information about institutions that are under investigation (Title IX Blog is excited about that!)   Per the Task Force, OCR will also collect and disseminate information about institutions’ Title IX Coordinators to ensure that information is easily accessed by students who need it. 

The report also describes the ways in which OCR will strengthen its enforcement procedures– by, for example, instituting a 90-day time limits on negotiating voluntary resolution agreements and making clear that schools should provide survivors with interim relief (like changing housing or class schedules) pending the outcome of an OCR investigation. The report also promotes this handy chart, prepared by the Department of Education, that shows how institutions can comply with Title IX and Clery, as well as FERPA (the federal law protecting students’ privacy) at the same time. Finally, the report also announced a newly executed Memorandum of Understanding between the Department of Education and the Department of Justice, which clarifies how the agencies – which largely share jurisdiction over Title IX enforcement – will collaborate to avoid duplicating each others’ efforts and ensuring things don’t fall through the cracks.  

Clearly the Task Force has been working hard not only to produce this report but also to coordinated the recent efforts of other federal agencies, all in a relatively short time of 90 days since its formation was announced.  The material it has provided and pulled together in this first report and on its website is helpful and seems poised to make a meaningful difference in university response and enforcement. Its work continues, as the Task Force vows to monitor and expand on these efforts.