EduRisk Solutions, a risk management resource provided by United Educators (UE), an insurance company that serves colleges, universities, and other educational institutions across the country, released a Risk Research Bulletin in December 2011 that has resurfaced in light of the ongoing controversies surrounding colleges’ and universities’ handling of sexual misconduct cases. The bulletin describes how the circumstances surrounding campus sexual assault allegations create a “perfect storm” resulting in scores of claims and millions of dollars paid out as a result of institutions mistreating accusers, accused students, or both.
The bulletin wastes no time in getting to the numbers, stating on its first page:
From 2006-2010, United Educators (UE) received 262 claims of student-perpetrated sexual assault, which generated more than $36 million in losses for UE and our members. The claims data show that students accused of perpetrating a sexual assault are just as likely to sue the institution as accusing students.
Torch readers know of a host of recent cases of accused students suing their institutions claiming that they were wrongfully expelled for an alleged sexual assault without a fair hearing. But UE’s data suggests that students accused of sexual assault have been fighting back earlier and more often than discussed in the media. And these students are not just bringing claims, but are winning them, too:
In UE’s five-year study, … [s]tudents accused of assault brought 54 percent of the claims and comprised 72 percent of the financial losses—composed of legal fees and payments to claimants.
That’s pretty big news. The bulletin is a few years old, and was released just as institutions nationwide began to recalibrate their procedures in response to the mandates contained in the April 4, 2011 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights. But its list of common arguments in claims that UE received during the five-year study will sound familiar to anyone following recent news on campus sexual assaults:
Claimants argued that educational institutions:
1. Did not follow their policies and procedures
2. Had confusing or unclear policies and procedures
3. Did not respond promptly or reasonably to an assault report
4. Treated the victim or the perpetrator cruelly or unfairly
Administrators are probably no more pleased than FIRE at the lack of progress in these areas in the eight years since the study began.
Along with these and other facts gathered by UE, the bulletin lists a number of “lessons” institutions should learn in order to better protect all members of the campus community. Some of these echo arguments FIRE has been making for years, such as “Lesson 9: Provide both parties with adequate time and information to prepare for a hearing.” UE recommends providing both or all parties with at least five days’ notice of a hearing and three days’ notice of the charges and evidence, with more time allowed depending on the circumstances. (Shockingly, the report reveals that “[i]n some cases, the institution gave as little as 12 hours’ notice of an impending hearing.”) The bulletin also warns against investigators making a determination of the facts early on in the process—a mistake administrators and advocates often make when they label the parties as “victim” and “perpetrator” before the hearing.
The bulletin is, on the whole, both clearer and more balanced than much of the recent guidelines provided by the federal government on the issue of dealing with campus sexual misconduct. Of course, even institutions that follow all of UE’s advice will still find themselves adjudicating serious allegations without many of the crucial resources that the criminal justice system possesses. But the information provided by UE demonstrates still further that the current system of sexual assault hearings on campus is failing all involved.
The full bulletin is available on UE’s website.