Tuesday, January 23, 2018

OCR Finds Title IX Violations at Buffalo State

Inside Higher Ed reported last week on its recent discovery that the Department of Education's Office for Civil Rights had concluded last November that Buffalo State failed to comply with its obligation under Title IX to promptly and effectively respond to an incident of sexual misconduct about which it had notice,even though the incident occurred off campus and even though the student who allegedly assaulted did not make a formal complaint to the university. This enforcement action serves as evidence that even as OCR politically seeks to distance itself from the prior administration's ramping up of Title IX's application to sexual misconduct (including its withdrawal of the 2011 Dear Colleague Letter), the agency remains in practice committed to a very similar enforcement strategy based on an interpretation of existing regulations and guidance. (Related news about the OCR's recent efforts to improve public access to information about ongoing civil rights complaints, despite having earlier criticized the prior administration for taking steps towards transparency, provides another timely example of OCR's tendency to criticize the prior administration while endorsing its approach.)

According to OCR's findings in the Buffalo State case, a female student-athlete appears to have been sexually assaulted by a male student-athlete in an encounter off campus. The female student, referred to in the findings as the complaint, spoke to university campus police about the encounter after her friend called them to their dorm. The university police called an ambulance as well as the local Buffalo police (which would eventually determine that it lacked probable cause to proceed against the alleged assailant in a criminal proceeding), and later, informed the Title IX Coordinator of the report as well.  The Title IX Coordinator also received information about the incident from the complainant's coach, who was informed by the complainant's mother about the incident the day after it happened. Yet despite its knowledge of the incident, neither the Title IX Coordinator nor the university police conducted an investigation into the incident. OCR concluded that this failure to investigate amounted to a violation of Title IX. It disagreed with the university that it was justified in not going forward with any kind of response by the facts that (1) the incident took place off campus, (2) neither the location of the incident and the alleged assailant were part of a pattern of sexual misconduct, and (3)  the complainant did not file a formal complaint seeking disciplinary action against the alleged assailant. Rather, OCR insisted that university officials had enough information to at least conduct interviews of the complainant, alleged assailant, and witnesses. Additionally, its findings included facts that attribute the complainant's failure to file a formal complaint to some shortcomings on the university's part.  The information she received about the disciplinary process was at times incomplete, and at other times confusing. Moreover, the complainant believed after talking to the Title IX Coordinator that the process wouldn't necessarily protect her from seeing the alleged assailant in class, which was her primary concern.  She had the impression the Title IX Coordinator was trying to talk her out of moving forward in that direction.

OCR also faulted the university for failing to provide the complainant with interim measures. The morning after the incident, the complainant's mother called her coach and requested assistance ensuring that the complainant's anticipated absences would be excused by her professors, and in getting the alleged assailant moved from a class in which both students were enrolled, and the complainant later additionally requested a "no contact" order.  Despite further inquiries into these measures by the complainant, her mother, and their advocate, in the end, the the university provided no assistance negotiating excused absences with her professors, leading to the professors' conclusions (contrary to university policy) that the absences were not excused.  Nor did they issue a "no contact" order.  And while they did initiate the alleged assailant's removal from the course, they did not inform the complainant that he had stopped attending so that she would feel safe to return. The university's failure to assist the complainant led to her withdrawal from the university.

Buffalo State is obligated to improve its staff training on responding to incidents of sexual harassment and misconduct. Additionally, it will reimburse the complainant for expenses she incurred besides her already-reimbursed tuition, the semester she withdrew.