Education Dept. Issues New Guidance for Sexual-Assault Investigations

April 04, 2011

Vice President Joseph R. Biden Jr. and Education Secretary Arne Duncan will announce on Monday a set of thorough guidelines for how schools and colleges should respond to allegations of sexual assault. Among them are that institutions should consider such allegations under the "more likely than not" standard of evidence, rather than the stricter "clear and convincing" standard that some now use.

The guidance comes in the form of a "Dear Colleague" letter from the Education Department's Office for Civil Rights designed to clarify Title IX regulations. The letter provides a detailed overview of institutions' existing responsibilities under Title IX when dealing with complaints of sexual harassment and sexual violence.

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination at educational institutions that receive federal funds, and the letter stresses that sexual violence and sexual harassment interfere with students' right to an education free of discrimination. The letter adds that schools and colleges are obligated to respond to student-on-student harassment that occurs off their campuses, noting that such harassment could still create a hostile environment on campuses.

"Students across the country deserve the safest possible environment in which to learn. That's why we're taking new steps to help our nation's schools, universities, and colleges end the cycle of sexual violence on campus," Vice President Biden said in a news release. He and Mr. Duncan are slated to introduce the guidelines at 11:45 a.m., U.S. Eastern time, at the University of New Hampshire at Durham.

The letter says that institutions must adhere to a three-part protocol: distributing a notice of nondiscrimination to students, employees, and others on campuses; designating a Title IX coordinator to oversee complaints; and adopting and publishing grievance procedures that provide "prompt and equitable resolution" of complaints.

The letter includes other specific examples of what institutions can and cannot do under Title IX. For example, "mediation is not appropriate even on a voluntary basis" between a victim and alleged perpetrator, says the letter. Institutions are also responsible for taking the proper "interim steps" to protect victims, such as moving the alleged victim or perpetrator to a new class or a different residence hall, providing counseling services to the complainant, or prohibiting the accused student from attending class for a period of time.

Data from the National Institute of Justice show that about one in five women are victims of sexual assault in college, and just over 6 percent of men are.

The letter goes on to clarify how institutions should handle complaints that are simultaneously being investigated by law-enforcement agencies. A law-enforcement investigation does not relieve a school or college of its duty to conduct a Title IX investigation, it says.

The letter also states that in order for a college's or school's grievance procedures to be consistent with Title IX standards, the institution "must use a preponderance-of-the-evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)." That is the standard of proof established for violations of civil-rights laws, the letter notes, and therefore is "the appropriate standard for investigating allegations of sexual harassment or violence."

Grievance procedures that use the stricter "'clear and convincing' standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred)" are not equitable under Title IX, it says.

Daniel C. Swinton, an assistant dean of students at Vanderbilt University, said his institution began using the preponderance-of-the-evidence standard in 2007 after he read a letter the civil-rights office sent to Georgetown University a few years earlier that said the "clear and convincing" standard was a violation of Title IX.

"Preponderance is obviously the civil standard, in civil courts, and I think it would be best if colleges and universities followed it," Mr. Swinton said. "You'd be surprised how many do not."

Federal Investigations

Some legal experts, however, worry that colleges' investigations and hearings of sexual-assault allegations are inevitably fraught. Criminal prosecutors, for lack of evidence, decline to pursue many cases; under Title IX, colleges must.

"We've been lured into doing something in a criminal-justice model that the criminal-justice system itself hasn't been able to deal with," Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy, at Stetson University, recently told The Chronicle.

On Friday, the Office for Civil Rights announced that it will investigate a complaint against Yale University that alleges that a sexually hostile environment exists at the university and that it hasn’t designated a Title IX coordinator. The 26-page complaint also says that Yale failed to respond promptly and effectively to several incidents of harassment, including an incident that sparked widespread outrage last fall when fraternity recruits paraded through a women's housing area chanting offensive statements about rape.

Russlynn H. Ali, assistant secretary for civil rights, said the close timing of the announcement of the Yale investigation and of Monday's "Dear Colleague" letter was purely coincidental.

The Office for Civil Rights recently concluded investigations at two institutions—Eastern Michigan University and Notre Dame College, in Ohio—and both received letters with guidelines for handling sexual-assault allegations. Those letters can be a helpful point of reference, Mr. Swinton said, but they aren't always applicable on all campuses.

Such letters "go out to specific schools, and then [other] schools are held accountable to guidelines that aren't promulgated," said Mr. Swinton, who is also the director of student conduct and academic integrity at Vanderbilt. "So we're actually looking forward to seeing what this larger 'Dear Colleague' letter will bring."

The goal of Monday's letter is to shed light on guidelines that have been previously highlighted in individual letters, but never acknowledged in a single, comprehensive document, Ms. Ali said in a telephone conference with reporters.

"There is no cookie-cutter, one-size-fits-all approach to our enforcement," Ms. Ali said. "What gives rise to the hostile environment and students not feeling safe at one institution may not be the same at another."

Additionally, Title IX requires institutions to notify both the complainant and the alleged harasser in writing about the outcome of any complaint or appeal, along with periodic status updates throughout the investigation. The letter adds that the Family Educational Rights and Privacy Act permits such disclosures.

Beyond reiterating Title IX obligations, the "Dear Colleague" letter also includes guidelines for prevention and awareness programs, such as designating an on-call representative from counseling services to field victims' complaints, and coordinating training programs for athletes, coaches, resident advisers, and campus police officers, along with requiring an orientation program for new students and employees.

Alison Kiss, executive director of the watchdog group Security on Campus, said she was thrilled with the new list of guidelines.

"I really think it's going to open a new era of clarity and direction" from the Office for Civil Rights, she said. "This letter is proactive. ... It gives institutions a chance to go through and say 'What are we doing well?' and 'What do we need to work on?'"

Security on Campus has advocated for the Campus Sexual Violence Elimination Act, a bill that would amend the Jeanne Clery Act, the federal law that governs crime reporting on campuses, to require sexual-violence-prevention programs on college campuses. The bill, HR 6461, would also require institutions to define consent in sexual relationships. Ms. Kiss hopes Monday's announcement will increase the bill's momentum.

In the conference with reporters, Ms. Ali also said that she hoped the new guidelines would encourage more students to report incidents of sexual harassment and sexual violence because the vast majority of incidents still go unreported.

"We're finding cases where sometimes, unbeknownst to university officials ... the victims are being further victimized by the process," Ms. Ali said. "Our guidance seeks to help change that."