Friday, January 31, 2014

Members of Congress Seek Disclosure from OCR About Title IX Enforcement

Just the other day, a reader emailed me to ask if I knew how many Title IX complaints OCR handled last year -- a question I get from time to time.  You'd think this would be an easy one to answer, but it's not.  OCR provides an annual report to Congress, but it's always retrospective and it doesn't provide a detailed breakdown of the nature of various complaints.  There's no database of complaints, investigations, findings and resolutions.  As a result, it's difficult to get a handle on the big picture of public enforcement of Title IX.

Turns out I'm not alone in thinking this.  Members of Congress have reportedly asked the Department of Education to provide more transparency about which colleges and universities are under investigation, have been the subject of complaints, or have entered into resolution agreements as a result of failures (or alleged failures) to adequately respond to sexual harassment and sexual assault.  

While I would extend this request for disclosure to other applications of Title IX -- like athletics -- I understand why Congress would be particularly interested in disclosure of OCR's enforcement of Title IX violations that threaten students' personal safety.  As one legislator explained, "American families have a right to know when [a] history [of sexual violence] is present" at an institution, and what the government is doing to try to address the problem. 

While it remains to be seen how OCR will respond to this request, there are theoretical reasons to believe that such a request will be effective.  Congress could, if it wishes, pass legislation requiring the agency to disclose this information, so the agency may be motivated to proactively respond to the legislators' informal request in order to avoid such a mandate. Moreover, like all agencies, the Department of Education receives its funding from Congress and is subject to the oversight of congressional committees.  Keeping members of Congress happy helps ensure that the agency's appropriations aren't targeted and that agency officials don't have to testify at uncomfortable committee hearings. The timing of this request also adds to its potential to be effective.  The President has just announced a task force seeking to improve enforcement and compliance in this area.  Having made this public commitment, there is certainly a risk of political fallout if the administration turns down a request to provide more information about how it is handling the problem on its end.

Tuesday, January 28, 2014

University of Missouri Will Investigate Sexual Assault Related to a Student Athlete's 2011 Suicide

Over the weekend, ESPN's program Outside the Lines reported on the story of Sasha Menu Courey, a swimmer at the University of Missouri who committed suicide in 2011. OTL reported that Menu Courey had been raped (or believed she had been raped) the year before by one or more members of the football team, and that this incident is believed to have triggered an existing mental illness that lead to her suicide.  The report raised questions about the University of Missouri's failure to investigate the underlying sexual assault, despite the possibility of having known about it prior to the swimmer's death, and the certainty that it found out about soon afterwards.  Until recently, the university claimed that it was not investigating or involving the police based on a decision to honor what they perceive to be Menu Courey's wishes.  The university also says that it solicited inputs from the student's parents, but got no indication from them that they desired an investigation to occur. 

Now, the university is going forward with an independent investigation of how the university handled the matter, and the local police is also now involved. Yet questions remain about whether did enough prior to this point to satisfy its obligations under Title IX.  According to the 2011 Dear Colleague Letter, a university is required to respond immediately when it has reason to believe that a sexual assault has occurred.  So attention at this point will focus on what university officials knew and when.

Initially, Menu Courey did not report the rape to anyone other than to health care providers who are bound to confidentiality.  But she may have also told an athletic department official named Meghan Anderson, who went to see Menu Courey while she was being hospitalized for an earlier suicide attempt to obtain Menu Courey's signature on a form withdrawing her from the university.  Menu Courey wrote in her journal that some time after the visit, she called Anderson and told her about the assault, though Anderson denies that this was said. Subsequently, Menu Courey committed suicide.  If Anderson had in fact been told about the sexual assault, she might have had a legal obligation to report it.  Under the Clery Act, university officials who have significant responsibility for students are under a duty to report crime.  The duty to report would thus depend on Anderson's job at the time, and whether she was considered someone with significant responsibility for students.  The fact that she was the one deployed to the hospital to obtain Menu Courey's signature on the withdrawal form suggests that she likely had this responsibility.  However, it sounds like we will never know for sure whether she knew about the assaults, since Anderson's account of their conversation differs from what Menu Courey wrote in her journal.  

Anderson aside, the university still had arguable reason to know about the assault from a news story about Menu Courey published in the wake of her death.  Apparently, Menu Courey's grieving parents learned about the sexual assault from their daughter's journal, and shared this information with a reporter from the Columbia Daily Tribune, who include it in a story about Menu Courey's life that ran on Feb. 21, 2011.  Details about the assault were not included in the article; for example, the university defends that it didn't even specify whether it occurred on campus or while Menu Courey was home in Canada.  Still, OCR does not require a university to have actual notice in order to trigger a response (though that is the standard courts use to determine liability for money damages).  According to the Dear Colleague Letter, if school officials know or "reasonably should know" about an act of sexual assault, they are required to "take immediate action to eliminate the harassment, prevent its recurrence, and address its effects." The duty to "prevent its recurrence" would seem to at least warrant making a reasonable effort to find out more.

The university's defense of its delay seems to be that they are honoring what they perceive to be Menu Courey's wishes and those of her parents, since Menu Courey did not report the sexual assault while she was alive, and her parents have not requested that the university do so after.  Yet the Dear Colleague Letter makes clear that a university's obligation to respond is not contingent on the victim's wishes.  This is because a university's obligation is as much to the campus as a whole as it is to the victim in a particular case.  We know that most campus assault is committed by serial offenders.  It is possible that the university's failure to investigate earlier put other students at unnecessary risk.  For all we know, Menu Courey's apparent assailants may have later raped other students as well.  Regardless of whether legal action is taken against the University of Missouri, the story is still a sad, cautionary tale to university officials elsewhere about the importance of being proactive and involved in matters of sexual assault.

Monday, January 27, 2014

OCR Investigates Increase in Sexual Assault Reported at Penn State

The Department of Education's Office for Civil Rights announced that it has initiated a compliance review of Penn State's handling of sexual assault complaints, "to determine if the University has responded immediately and appropriately."  An OCR official reportedly confirmed that the agency was motivated to investigate based on an initial review of the university's sexual harassment policy, along with a "dramatic increase in the number of reported forcible sex offenses."  According to the university's Clery Act reports, forcible sex offenses rose from 4 in 2010, to 24 in 2011, to 56 in 2012. At other schools of Penn State's size, that number "peaks in the teens and twenties," according to a campus safety advocate interviewed by the Pittsburgh Post-Gazette. So with 56, Penn State really stands out as a target for inquiry.  

A compliance review is different from other investigations conducted by OCR in that it is driven by the agency's own decision to investigate, and not a response to a particular compliant it has received. Yet, OCR was careful to spell out in its letter that it has "reached no conclusions" as to whether the university has violated any federal law.  Moreover, Penn State was the subject of a uniquely-high profile sexual abuse case involving its athletic department during the time period. This could have influenced reporting raising awareness about victim's rights and reducing the sense of isolation that often deters reporting of sexual assault.  For context in this regard, coach Sandusky was indicted in November of 2011.  So the case could plausibly explain, at least in part, the surge in both 2011 and 2012. 

Another way to look at Penn State's 56 sexual assaults in 2012 is to consider the likelihood that it comes closer to reality than the lower numbers reported by other schools; it doesn't necessarily mean that Penn State has a worse sexual assault problem.  And while it's not good that there were (at least) 56 victims of sexual assault at Penn State that year, it is better that those 56 victims reported than not. It may reflect that students are increasing perceiving the university as a place where reporting sexual assault that it is both safe and worthwhile. It's important that OCR's review not only identify any aspects of Penn State's response to sexual assault that is lacking, but also give an honest account of what those numbers actually reflect.  I'm sure the last thing OCR wants is to send the message to other schools that honest reporting only brings trouble. 

Sunday, January 26, 2014

Add Columbia to the list...

...of schools where students are speaking up about their experiences when reporting incidents of sexual assault and bringing light to inadequate and illegal systems of reporting at their institutions.
At the end of last year, several women came forward to say that they all had been assaulted by a Columbia University athlete, but that the university had not adequately investigated their respective complaints and that the student was still on campus having faced minimal disciplinary actions (for groping, a verdict that came down after the accuser graduated).
It does not appear that the university is in violation of the Clery Act. But simply reporting incidents does not feel like enough to many Columbia students who have called for greater accountability and transparency. A group calling themselves the Title IX Team are asking for the release of additional information such as the nature of complaints, how they are resolved, and what kind of punishments are given to alleged perpetrators.
Last week, the school newspaper released the first article in a two-part series about the experiences of some students who have tried to use the university's disciplinary system to address sexual assault. It has already garnered some internet attention and I predict that the details of individuals' assaults and experiences will strengthen students' claims against the university and compel a response.The students want one. There have been at least two open letters to the university president asking for him to address their concerns. The latest, from members of the Title IX Team, can be found here.

Saturday, January 25, 2014

Wisconsin Middle School's Single-Sex Classes Targeted for Complaint

The ACLU has filed a complaint with the Department of Education's Office for Civil Right, alleging that Somerset (Wisconsin) Middle School's single-sex education program for fifth-graders violates Title IX.  Students in Somerset's single-sex program are separated by sex for all core subjects, as well as extracurricular activities and non-academic periods like lunch and recess.

The ACLU's complaint alleges that this program violates Title IX because administrators have provided inadequate justification for the program.  They claim to be using single-sex education to introduce "academic rigor" that will help close the gender gap on certain standardized tests, as well as to quell behavioral problems, but cite no data to substantiate either problem.  The ACLU also chides officials for citing no "valid" evidence suggesting that separating students by sex is an effective means for solving either problem.  Though they have been separating some fifth graders by sex since 2008, the school puts forward no evidence that it has made any difference on test scores or disciplinary rates so far.  Instead, the complaint alleges, school officials justify sex-separation by relying on "debunked" pseudoscience on the different hardwiring of boys and girls brains, and the related "controversial" work of single-sex education proponents Leonard Sax and Michael Gurian, who advocate for teaching boys and girls in drastically different manners based on sweeping and questionable generalizations. The complaint cites some of Sax and Gurian's recommendations on which Somerset officials purport to rely:
  • Teachers should smile at girls and look them in the eye. However, teachers must not look boys directly in the eye or smile at them. 
  • Boys do well under stress, and girls do badly, so girls should not be given time limits on tests. 
  • Girls should be allowed to take their shoes off in class because this helps them relax and think better. 
  • Literature teachers should not ask boys about characters’ emotions, and should only focus on what the characters actually did. But teachers should focus on characters’ emotions in teaching literature to girls. 
  • Boys should receive strict discipline based on asserting power over them. Young boys can be spanked. Girls should never be spanked, but instead should be disciplined by appealing to their empathy. 
  • A boy who likes to read, who does not enjoy contact sports, and who does not have a lot of close male friends has a problem, even if he thinks he is happy. He should be firmly disciplined, required to spend time with “normal males,”and made to play sports.
The ACLU argues that, although Title IX regulations do allow schools to engage in single-sex education in certain conditions, Somerset's program falls outside of what is permitted and thus constitutes sex discrimination under the law.  Single-sex programs may only be used to address a particular, identified need, and moreover must be substantially related to that need. If the ACLU's factual allegations prove true, the school does not appear to have met this standard, as it provides only a vague justification for separating students and no evidence that separation is benefiting the students in any way.  Additionally, the Title IX regulations prohibit schools from relying on "overly broad generalizations about the different talents, capacities, or preferences of either sex."  Somerset's fifth-grade curriculum seems to do exactly that.

The complaint requests that OCR conduct an investigation and ensure that school district correct any violations found by "reverting to a coeducational structure."  The ACLU has attained that result in filing similar complaints against other school districts (e.g. here and here)  We'll see if the Somerset case follows the same course.

Thursday, January 23, 2014

Obama Task Force to Focus on Campus Sexual Assault

Yesterday, President Obama announced the creation of a Task Force to Protect Students from Sexual Assault, a group of senior administration officials charged with coordinating the government's efforts to combat sexual assault on college and university campuses.  This announcement came on the heels of the release of a report by the White House Council on Women and Girls Leadership, that describes the prevalence of rape and sexual assault and the impacts of this problem on society.  The report, titled Rape and Sexual Assault: A Renewed Call to Action, identifies college campuses as environments that pose particular risks and challenges, resulting in the alarming statistic that 1 in 5 women has been sexually assaulted while in college.  One aspect of of the problem of campus assault is the high rate of serial offenses (63% of college offenders admit to committing an average of 6 rapes each), underscoring the importance of institutional intervention. 

The report also outlines the Task Force's objectives, which largely relate to enforcement of Title IX, the Clery Act, and Campus SaVE, including:
  • Provide educational institutions with best practices for preventing and responding to rape and sexual assault. 
  • Build on the federal government’s enforcement efforts to ensure that educational institutions comply fully with their legal obligations. 
  • Improve transparency of the government’s enforcement activities. 
  • Increase the public’s awareness of an institution’s track record in addressing rape and sexual assault. Enhance coordination among federal agencies to hold schools accountable if they do not confront sexual violence on their campuses.
Members of the Task Force include Education Secretary Arne Duncan, Health and Human Services Secretary Kathleen Sebelius and Attorney General Eric Holder.

Friday, January 17, 2014

Triathlon Is NCAA's Newest Emerging Sport for Women

At the annual NCAA convention taking place this week in San Diego, the Division I Legislative Council voted to add triathlon to the NCAA's list of emerging sports for women.  95% of the votes cast were in favor of the proposal.  The Division II and Division II councils will also vote on triathlon's status later at the convention.

The NCAA created the "emerging sports" designation in 1994 as a way to promote new opportunities in women's sports and help universities close the gender gap in athletic opportunities available to students.  A university that adds an emerging sport may count it towards the NCAA's minimum sport sponsorship requirements, and in Division I, towards the minimum financial aid requirements.  The NCAA's Committee on Women's Athletics proposes emerging sports based on evidence of interest and potential interest at the varsity level.  Once a sport is added to the list, it has 10 years to meet the requirements for championship status.  In Division I, that means 40 institutions will have to add the sport.  Rowing, ice hockey, bowling, and water polo are all current NCAA championship sports that came out of the emerging sports program.   

USA Triathlon, the sport's governing body, predicts that triathlon will be an attractive sport for athletic departments to add, because of its potential to generate revenue and community relations by allowing members of the public to register and compete in the same race alongside college participants.  This is a valid selling point, but it is important for Title IX compliance that universities do not allow such public participation to overshadow or dilute the collegiate varsity competition.

Division I schools that have reportedly committed to adding a women's triathlon team include Stanford University, the U.S. Air Force Academy, Denver, Drake, Monmouth, North Carolina-Asheville and University of Northern Iowa. Division I schools that add triathlon can offer up to 10 scholarships for athletes on the team. 

Thursday, January 16, 2014

OCR to Investigate Sexual Assault Complaints Against Emerson College

The Department of Education has confirmed that it will investigate three Title IX complaints filed against Emerson College in Boston, in which female students allege that the school failed to promptly respond to reported sexual violence.  The complaints, filed last October -- and one of which we blogged about then -- have been consolidated into a single investigation, the scope of which will reportedly include interviews with the complainants and with college staff and potentially a visit to the college. 

One of the students' complaints alleges that she was raped at an off-campus party by an Emerson College student and an MIT student, and was later dissuaded from reporting it to the police by Emerson college staff.  The college moreover failed to take any action against the accused Emerson student, allowing him to attack her a second time. The second student alleged that she was raped by a fellow student, and when she reported it a year later, the investigation was mishandled and insensitive.  The third student also alleged that the college failed to adequately investigate a reported sexual assault, as well as denied her academic accommodations that would have helped her get through a stressful time. 

OCR will investigate these claims to determine whether the college complied with its obligation under Title IX to end sexual violence, prevent its recurrence, and address its effects.