OCR Settles with UVA After Investigation Reveals "Mixed Record" of Compliance

On Monday the Department of Education's Office for Civil Rights announced a resolution agreement with the University of Virginia, which had been under investigation for alleged violations of Title IX arising from the university's response to sexual harassment and sexual violence on campus. OCR determined that during the 2011-12 academic year, UVA had a "mixed record" -- sometimes handling cases adequately and other times failing to respond in the prompt and equitable manner required by law.  For example, in one case, the university took nine months to hold a hearing on a reported sexual assault, a delay that included five months between the completion of the investigator's report and the scheduled hearing date.  In that same case, the university was also faulted for failing to look at other responses (besides a disciplinary hearing) that may have been warranted by the situation. In another case, the university did not give the complainant adequate opportunity to defend charges contained in a cross-claim filed by the accused.

OCR's investigation also revealed that in situations where the complainant requested confidentiality or otherwise refused to participate in a disciplinary hearing, the university dropped the matter entirely rather than seeking to ascertain whether other responses might be appropriate in light of the university's obligation to protect all students.  In cases where the university had knowledge of a possible assault occurring in the context of a fraternity, it failed to investigate, it said, because the alleged victim did not wish to file a complaint.  Yet, the university could have still investigated the matter and considered other remedies besides those, like a disciplinary action, that require the complainant's participation.

Additionally, OCR found deficiencies in the university's handling of sexual harassment complaints filed against faculty members, which tended to be only minimally investigated and not well coordinated with the academic departments. 

OCR noted, however, that the sexual assault policy UVA adopted earlier this year is the first one that the agency has found to fully comply with the Title IX since the 2014 guidelines were issued. As such, the university is not obligated to make policy changes going forward.  However, it has agreed to go back and look at cases decided under the old policy in other recent years to see whether they were handled properly.  For any handled improperly, the university should provide "appropriate remedies that may still be available to the complainants .. and remedies that may be necessary to address the climate of the larger university community." The university also agreed to provide OCR with documentation of its response to sexual harassment and sexual violence complaints for the next two years. 

Some Thoughts about UVA, Rolling Stone, and Title IX

Yesterday Rolling Stone issued a statement that essentially retracts its November 19 story about a fraternity-organized gang rape of a student named Jackie at the University of Virginia.  We know now that the gang rape could not have, for logistical reasons, happened the way Jackie said or involved the people that she said were involved.  Rolling Stone admits that it should have vetted these basic facts before publishing the story. In not doing so, the magazine has not only cast unwarranted negative attention on the fraternity in question and on UVA.  Additionally, the magazine has set back efforts to address the very real problem of sexual assault on university and college campuses.    

One of those negative consequences is the threat that the retraction of high profile story about campus sexual assault will fuel a stereotype (myth) that lying about rape is a thing women do.  Yet, the fact that Jackie's story has "discrepancies" (as Rolling Stone called them) does not necessarily mean she was maliciously lying; and it certainly does not mean that other women who report sexual assault are lying. Certainly, the negative attention women receive for reporting sexual assault casts doubts on the possibility that women lie for self-serving goals. Moreover, there are other plausible explanations for the inaccuracies in Jackie's story.  As Hannah Rosin suggested in Slate, it is possible Jackie is in fact the victim of sexual assault, the trauma of which is clouding the details in her memory.  Or perhaps changing details about the story consciously or unconsciously makes her feel safer from the threat of retaliation. These possibilities, that actually speak to the need to support victims rather than discount them, are overlooked if we jump to the conclusion that Jackie lied/women lie about rape.

I am also concerned that the Rolling Stone retraction could be weaponized as an argument against Title IX. This would be truly unfortunate, as there is nothing about this story that warrants changing the requirements under law that college campuses respond promptly and equitably to reports of sexual assault. A Title IX-compliant disciplinary process would have revealed the "discrepancies" that came up in the re-reporting of the original Rolling Stone story and would not have sanctioned the accused individual (called "Drew" in the story) or his fraternity. Jackie's story would not have satisfied the preponderance of evidence standard that the Department of Education requires under Title IX. So this story does not support an argument  that we need to impose extra procedural protections for those accused of rape.

Moreover, if we accept the possibility that Jackie was not maliciously lying but was struggling with accuracy as a result of trauma or fear, that too speaks to the importance of a Title IX-compliant disciplinary process. If students trust the system, they will feel safe and supported in reporting assault right away, when details are fresh and can more easily be accurately conveyed.  Prompt reporting also gives the university the opportunity to provide mental help support that could perhaps prevent the memory-clouding effects of trauma.  And given that a Title IX-compliant response also affords the victim protection from retaliation, such reporting could also mitigate the role fear might play in accessing the truth.

For all we know, if Jackie had access to a robust, trustworthy, equitable disciplinary process, she might have reported her assault right away to supportive and truth-seeking campus officials, rather than to a reporter two years later. The university's disciplinary response would have been focused in the right individual or individuals, rather than on those who were apparently not involved.  For these reasons, a Title IX-compliant process should appeal to those worried sexual assault and those worried about the possibility of false accusations.

It would be all too easy for campus officials, government officials, victims and others to use this story as an excuse to disregard victims or roll back the requirements of Title IX.  Those who support sexual assault victims and Title IX have to acknowledge that threat and confront it in their advocacy.