Call to Action on Sexual Harassment

April 4, 2011

Late last year, the U.S. Education Department negotiated agreements with two colleges that required them to tighten procedures for dealing with sexual harassment complaints under Title IX of the Education Amendments of 1972. Experts read the agreements, which were much more extensive than past ones, as a clear message that the department’s Office for Civil Rights was cracking down on Title IX violations.

If other colleges didn’t get the memo then, they will undoubtedly get it now. Today, OCR is sending a "Dear Colleague" letter to colleges, universities and schools across the country to assertively remind them of — and help them carry out — the Title IX requirements on the prevention of sexual harassment they must adhere to as federally funded institutions.

While the document is described as a clarification, it contains several key shifts. The department is stipulating that the burden of proof required for colleges to take action is less than that required for criminal convictions, and stating that there are specific requirements that apply to colleges for incidents that take place off-campus.

The 18-page message describes at length the various ways in which colleges must address and prevent sexual harassment so they are in compliance with Title IX, which prohibits discrimination on the basis of sex. The new guidance elaborates on mandates that officials said colleges have previously misunderstood or not adhered to. While there are no brand-new regulations, it is expected to clear up some confusion about a few of the more vexing requirements that have long confounded colleges, Assistant Secretary for Civil Rights Russlynn Ali said in a conference call with reporters Friday.

The "historic" guidance clarifies colleges’ responsibilities for dealing with sexual violence, Ali said, and helps institutions better understand how to ensure incidents are reported, investigated and dealt with "swiftly and appropriately." It also encourages colleges to be proactive in preventing sexual violence through community education. Nonexistent, disjointed or unclear reporting and investigation procedures at colleges have cost many victims the fair process they are entitled to under federal regulations, Ali and others said. (Eastern Michigan University and Notre Dame College in Ohio, the two institutions that reached agreements with OCR in December, were faulted on this, among other things.)

"From our perspective, this is a significant advancement for the victims of sexual violence and preventing sexual violence," said S. Daniel Carter, director of public policy for Security on Campus, an organization that has said colleges don’t do enough to address this issue. "The process matters, because we see when victims are revictimized by the process, when they don’t get justice, when they don’t get protected. And that’s one of the most important aspects of Title IX…. A better process, which these guidelines are intended to foster, will better protect them, will better ensure that they have access to protections in an educational environment."

To ensure that sexual harassment does not create a hostile environment for any student — victim or otherwise — colleges must take many measures, but they all fall within three main procedural requirements. Each institution receiving federal funds must: disseminate a notice of nondiscrimination to students, parents and employees; designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX (that person’s contact information should be included in the nondiscrimination notice); and adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints.

Given that the guidance deals only with existing regulations and adds no new burden to colleges, Ali said she expects "immediate compliance."

Others are unsure of that expectation’s feasibility. "It is common in colleges and universities that when they need to change policies and procedures, that they go through a process, and sometimes those processes can be prolonged," said Ada Meloy, general counsel for the American Council on Education. "However, because this Dear Colleague letter is quite detailed and directive in its content, I think that colleges and universities have more to go on as far as what the OCR thinks they should be doing. While very little can be done immediately, I think that colleges and universities will give this a serious look and move it up on their agenda of things to deal with."

Meloy interprets the guidance as another signal that OCR doesn’t intend to back down on this issue and colleges will continue to see activity from the office, but she cautioned against institutions rushing to place blame.

Brown University was sued by a former student who was accused of rape and who said his rights were ignored and that he was forced out of the university based on minimal evidence. (The new guidance makes clear that the victim and the accused must receive fair treatment.) The woman involved in that case is now suing the alleged rapist for violating their agreement and discussing the case by filing his own lawsuit against her, her father — who is himself a Brown alumnus — and the university.

"I think that colleges and universities do need to be careful to keep in mind that being wrongfully accused or wrongfully found to have committed these offenses is extremely damaging, so care must be taken at every stage of the proceedings to be fair in reviewing the matter," Meloy said. "I know from my years on campus that these are not always simple issues to resolve. There are almost always going to be two sides to the story, and particularly since this mainly addresses peer-on-peer harassment, both sides need to be listened to and considered." (Meloy noted that a federal grant program, mentioned in a footnote of the OCR letter, could assist colleges in the training and review procedures they’re expected to carry out.)

In the press call, Ali stressed the importance of clarifying the standard of proof for sexual harassment. "The guidance answers a longstanding question that we have heard from many general counsels about, and that is what the standard of proof is," Ali said. "Far too often universities use that higher standard when it comes to Title IX." Colleges need only a "preponderance of evidence," showing it’s more likely than not that a crime occurred, Ali said. According to the guidance, "Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably."

Despite its importance, Carter said, the standard of proof is one clarification that he is concerned might take time to carry out. For instance, Carter noted, at Ohio State University, where the OCR began a compliance review in June after students alleged too high a burden of proof when considering whether to discipline those accused of sexual harassment, lowering that standard could require approval from the institution’s governing board.

And realistically, even the less demanding requirements could take time to get applied to actual cases, Carter said. "I don’t expect to see changes overnight, but I think particularly as we move into the next school year, we do expect to see changes as institutions respond to being made aware of the requirements," he said.

Carter noted one other particularly important clarification. Previously, many colleges were unsure as to whether they should investigate and possibly take action on off-campus incidents between students; the guidance makes clear that institutions are obliged to do so. "If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures," the letter reads. "Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus."

The new guidance is being formally announced today by Vice President Joe Biden and Education Secretary Arne Duncan at the University of New Hampshire, 200 miles northeast of Yale University, which is at the center of a new OCR inquiry. OCR officials confirmed Friday that, after considering a 26-page complaint they received on March 15, they will launch an investigation into allegations of a sexually hostile campus environment at Yale. The complaint alleges that, in addition to not having a Title IX coordinator or a sufficient grievance process, the university did not respond promptly or effectively to several known incidents of harassment.

Yale spokesman Thomas Conroy said via e-mail that the institution "does not believe it has violated Title IX in any manner." The university declined to comment further on the specifics of the complaint because it has not received a copy. But in a statement sent to Inside Higher Ed on Sunday, Yale said it "has initiated a number of programs in recent years as part of its continuing effort to respond effectively and appropriately to incidents of sexual misconduct and harassment." In a letter addressed to Yale College students and faculty members Friday, Mary Miller said she became dean of the college in part to "carry the message of equity to an even wider audience." In the letter, Miller acknowledged the reported contents of the complaint and defended the university’s regulations regarding sexual harassment and misconduct, saying it "has used the available means" to investigate questionable incidents and respond appropriately, issuing penalties when necessary. "Yale is notable," Miller wrote, "for the extraordinary number and range of initiatives, programs of study, working groups, faculty and student organizations, and administrative offices devoted to the advancement of women and women’s issues."

In recent months, students at other institutions have protested handling of complaints, as well. A four-day sit-in at a Dickinson College administration building, where students protested that the college was not strict enough in disciplining for rape and sexual assault, ended early in March after the college promised to lighten its standard of proof and punish rape perpetrators only with expulsion.

While strict guidelines for sexual harassment policies and procedures could help clear up messy situations such as those at Dickinson and Brown, the OCR letter does raise concerns for civil liberties groups like the Foundation for Individual Rights in Education, which fears that by not addressing freedoms of speech and expression in the guidance, the OCR could leave students vulnerable to harassment charges for speech that is protected by the First Amendment.

"Worryingly, this letter fails to replicate the exacting, speech-protective understandings of hostile environment sexual harassment contained in previous OCR guidance letters, including both the 2001 Guidance and the 2003 Dear Colleague letter," FIRE said in a statement sent to Inside Higher Ed on Friday. "In the 2001 Guidance, OCR made clear that in determining whether a hostile environment has been created, the severity, pervasiveness, and both objective and subjective offensiveness of the behavior in question must be considered."

"As a result of this deficiency, FIRE worries that schools seeking to comply with OCR’s increased emphasis on sexual harassment education and prevention will fail to promulgate and disseminate sexual harassment policies that provide sufficient protection for student speech. This result would run counter to previous OCR guidance and legal precedent," the statement continued. "Colleges and universities are both legally and morally obligated to address sexual harassment and sexual violence on campus. The vast majority are also legally and morally obligated to protect freedom of expression. These responsibilities need not be in tension."

While acts of sexual violence are "vastly under-reported," data show that nearly 20 percent of college women and 6 percent of college men will be victims of attempted or actual sexual assault as students, according to one estimate the OCR cited. "This is an issue that we have to confront as a country," Ali said. "Our first goal is prevention through education. But where the OCR needs to be involved in an enforcement context, we will do that as well."