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How a 20-Page Letter Changed the Way Higher Education Handles Sexual Assault

February 08, 2017 Premium

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Nearly six years ago, Vice President Joseph R. Biden Jr. traveled to the U. of New Hampshire to unveil the Obama administration’s influential "Dear Colleague" letter, putting the weight of the White House behind the battle against campus sexual assault.

Sharyn Potter was an undergraduate in the mid-’80s when she began working on a telephone hotline for troubled students. The calls that stuck with her most came from women who said they’d been raped. Some blamed themselves; others felt doubted by college officials. It was an unusual glimpse into a hidden corner of campus life, and it left a strong impression.

Fast forward to April 4, 2011. Inspired by those hotline conversations decades earlier, Ms. Potter had become an associate professor of sociology at the University of New Hampshire, researching and working on programs to help prevent sexual assault. That day she and hundreds of others gathered in the university’s student union for a historic event: Vice President Joseph R. Biden Jr.’s announcement of broad new federal guidelines for how colleges should handle students’ reports of assault.

The centerpiece of Mr. Biden’s announcement, a 20-page letter released by the U.S. Education Department’s Office for Civil Rights, has since become legendary. Not only did the "Dear Colleague" letter, as it has come to be known, specify in fine detail how colleges should respond to reports of assault, but it also made clear the Obama administration cared deeply about the issue. The message to colleges was unmistakable: We’ll be watching you.

The Dear Colleague letter marked the first time the department’s civil-rights office had issued detailed directions that clearly were meant for all colleges. The guidance pushed institutions to investigate alleged assaults on campus and off, promptly and fairly, whether or not a student had filed a complaint. Much of the letter’s power came from its central argument: that the federal gender-equity law known as Title IX required colleges to do everything within their reach to prevent assaults and punish the perpetrators.

U. of New Hampshire
Sharyn Potter, an associate professor of sociology at the U. of New Hampshire, was present in 2011 when Joe Biden issued new guidance for colleges on confronting sexual assault. "Finally, the vice president was saying, This issue is a problem."

To Ms. Potter and many other scholars, victims, and advocates there in New Hampshire that day, the letter’s unveiling felt deeply validating. "For so many of us," says Ms. Potter, "we do our research, we work with victims, and it’s all under the radar. Finally, the vice president was saying, This issue is a problem."

Vice President Biden was a key intellectual force behind the Dear Colleague letter, but he was just one of several players inside the Obama administration who came together to elevate sexual assault as a campus concern.

"We had been engaged in enforcement work, school by school, over the years, but what we didn’t see was enough national attention to the issue," says Catherine E. Lhamon, who took over as assistant secretary of the civil-rights office two years after the Dear Colleague letter was issued, and who spearheaded the Education Department’s vigorous enforcement of its guidelines. "The Supreme Court had spoken on this issue, saying that students need to be made safe and that Title IX did cover sexual assault. But the message hadn’t sufficiently taken hold."

All of that changed with the Dear Colleague letter. In the nearly six years since the letter was published, higher education has been locked in a costly and often controversial battle to police campus sexual assault. Universities have hired Title IX coordinators to oversee procedures for adjudicating assault reports, in many cases overhauling those policies, and bought online prevention programs for undergraduates. Some institutions have spent millions of dollars on those efforts, plus more on outside lawyers to help them deal with U.S. Education Department investigations of their procedures. The Dear Colleague letter helped spike the number of universities under investigation for mishandling reports of assault, to more than 300. Universities also have faced expensive lawsuits from both women who have reported assaults and the young men they have accused.

Now that President Trump has taken office, many wonder whether the landscape will shift again. Will the federal government’s laser focus on enforcement dim or even burn out entirely now that President Barack Obama has left the White House?

Even if it does, most higher-education observers agree that the Dear Colleague letter was a watershed moment. Whether they applaud or oppose the Obama administration’s efforts, experts say there’s no doubt that the document played a huge role in raising concern about the issue of campus sexual assault. Undoing its impact, they say, won't be quick or simple.

Seeking Consistent Standards

While the letter may have caught campuses by surprise, its roots reached back to two decades of court decisions and actions by the civil-rights office — actions that gradually morphed Title IX from a law that ensured equal opportunity in college sports to one used to police sexual assault.

First, in a series of rulings in the 1980s and 1990s, the Supreme Court determined that sexual harassment — including assault — violated Title IX by denying women equal opportunity in education. Then, in the mid-’90s, the civil-rights office began resolving students’ complaints that their colleges had mishandled reports of harassment and assault by specifically instructing individual institutions that Title IX prohibited gender-based violence.

The civil-rights office determined in 1995 that Evergreen College had violated Title IX by failing to both "promptly and equitably" resolve a student’s complaint of sexual harassment against a professor and by using a higher standard of proof than it should have to determine the professor’s responsibility. Both of those requirements — the need to resolve complaints promptly and fairly, and to use a lower standard of proof than "beyond a reasonable doubt" — were highlighted for all colleges in the Dear Colleague letter.

In 2003, after investigating the handling of a rape complaint at Georgetown University, the civil-rights office reiterated the standard of evidence it believed colleges should use in assault cases. The standard is called "preponderance of the evidence," and it requires colleges to find alleged perpetrators responsible if it is 50.1 percent likely that an assault occurred.

But while the civil-rights office was busy correcting individual campuses’ approaches to adjudicating reports of sex assault, it became clear to alleged victims and their advocates that many other institutions still hadn’t gotten the message. By 2010 many colleges and universities lacked clear grievance procedures to resolve students’ complaints. And at many institutions, Title IX coordinators — if they had such positions — didn't focus on handling reports of sex assault, something the government had been moving toward requiring for years. Some institutions took months to investigate students’ reports; others still used a higher standard of evidence to determine responsibility for harassment and assault.

After President Obama took office, in 2009, he appointed Russlynn H. Ali as his administration’s first assistant secretary of the Office for Civil Rights. In her first few months on the job, Ms. Ali became deeply concerned by news reports of sexual violence in schools and colleges — especially reports of a gang rape at West Contra Costa High School in October 2009. "I was at once brokenhearted," Ms. Ali says, "but also I felt an increasing sense of urgency, of what we could do as a federal government to prevent things like that from happening."

She had also been jolted by figures from a 2007 U.S. Department of Justice survey in which 20 percent of college women reported being victims of sexual assault. "As we opened our eyes to it," says Ms. Ali, "we realized the pervasiveness and persistency of the problem." So as one of her first tasks in office, Ms. Ali and her staff began exploring government rules and college policy on the issue, seeking places where the department could offer clarity. "We tried to figure out where there was some uncertainty," says one Education Department official who worked on the letter with Ms. Ali and who asked to remain anonymous. "We wanted to see where there were holes."

At the same time, Vice President Biden — who for two decades in Congress had been involved in legislation and other efforts to stop violence against women — asked Lynn Rosenthal, the nation’s first White House adviser on violence against women, for an update on the issue.

What Ms. Rosenthal reported back concerned the vice president: High rates of sexual assault plagued campuses. (She showed the vice president the same 2007 survey data that had concerned Ms. Ali.) Twenty years earlier, as chair of the Senate Judiciary Committee, Mr. Biden had listened to college women tell stories about assault during testimony on the Violence Against Women Act. The vice president was particularly upset, says Ms. Rosenthal, because the situation didn’t seem to have changed since then. "He was disappointed, upset, disturbed to find out that these numbers were still the same," says Ms. Rosenthal, who is now a consultant training nonprofits and corporations on mitigating gender-based violence.

At the same time, says Ms. Rosenthal, Ms. Ali reached out. The department had been hearing from advocates — including Wendy Murphy, a lawyer who teaches sexual-violence law — that campuses were not all handling the issue the same way. In 2010 Harvard University hired Ms. Murphy to help it resolve a report of sex assault, and she quickly realized that the university was not using the preponderance standard of evidence, intended for all institutions, that OCR had outlined in its resolutions with Evergreen and Georgetown. When she told campus officials, she recalls, they brushed her off. "A board member told me: ‘Ms. Murphy, we are quite aware of the ruling against Georgetown. Perhaps you haven’t noticed, but this is not Georgetown.’" Harvard officials did not respond to email and telephone requests for comment about the exchange.

To Ms. Murphy, that demonstrated that too many colleges and universities didn’t believe they needed to change their policies just because the civil-rights office had told other institutions to change theirs. So the lawyer began lobbying the civil-rights office for "global guidance" to let colleges know that the principles set down in the office’s resolution letters applied across the board. Other higher-education organizations — including the National Center for Higher Education Risk Management (now the Ncherm Group) and Security on Campus — joined her.

Ms. Ali and Ms. Rosenthal decided to work together on the guidance that would apply to all colleges. "The department wanted to remind schools of their responsibility, and it did the legal analysis and developed the Dear Colleague letter," says Ms. Rosenthal. "We teamed up to amplify it."

While Obama-administration officials realized the letter would have an important impact, Ms. Rosenthal says, they didn't anticipate what the letter would also reveal: that many campuses were handling reports of assault even more inappropriately than the administration had believed.

"I didn't anticipate that so many problems would be uncovered," she says. "There seemed to be a big disconnect between the body of knowledge that had developed about sexual assault over the past decades and what schools knew and understood about the issue. When I saw how many school officials were struggling just to understand the basics, I realized that what we were undertaking would lead to major change."

‘A Personal Moment of Justice’

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Laura Dunn, who reported being raped as an undergraduate, remembers crying through most of Vice President Biden’s 2011 announcement of the Dear Colleague letter. "It was a very meaningful moment that everything I went through — the struggle, the pain, even the thoughts of suicide — were all for something greater."

For the letter's unveiling, Ms. Rosenthal and Ms. Ali flew to New Hampshire on Air Force 2 with Vice President Biden and Arne Duncan, who was then education secretary.

Meanwhile, S. Daniel Carter — a key voice on the issue of campus crime and then a leader of Security on Campus, the nonprofit violence-prevention group now known as the Clery Center for Security on Campus — flew to Boston and picked up Laura Dunn, who had become a national victims’-rights advocate after reporting that she was raped in 2004 as an undergraduate at the University of Wisconsin at Madison. Ms. Ali had invited Ms. Dunn to the ceremony. "I was crying through the majority of Vice President Biden’s announcement that day," recalls Ms. Dunn. "It was a personal moment of justice."

After her assault, Ms. Dunn had filed a complaint with the Education Department, charging that Wisconsin had mishandled her report. (The university ultimately found one member of the men’s rowing team not responsible for the assault; another crew member graduated before the university's investigation was completed.) The institution postponed its investigation while the police looked into the complaint, ended up taking months to resolve Ms. Dunn’s report, and never gave her a written record of the outcome, she says. The U.S. Education Department found the university had "acted appropriately and within established law, due-process guidelines, and victim-support standards," a spokesman for Madison said in a statement to The Chronicle.

But Ms. Dunn says the ways the university handled her report would have violated the principles set down in the Dear Colleague letter. She believes that the outcome would have been different had her assault occurred after April 4, 2011.

Instead of focusing solely on her own case, Ms. Dunn says, she decided on that day six years ago to turn her attention to others. "It was a very meaningful moment that everything I went through — the struggle, the pain, even the thoughts of suicide," she says, "were all for something greater, which was this moment where protection for survivors was heard and honored."

After the ceremony with President Biden, Ms. Dunn decided to found SurvJustice, a nonprofit organization that supports assault victims. The group is now among those fighting to preserve the letter’s legacy. SurvJustice is lobbying the Trump administration to maintain the protections of the Dear Colleague letter; meanwhile, a Twitter campaign called #DearBetsy (named for Betsy DeVos, Mr. Trump’s education secretary) makes the case for why Title IX protections are important.

“As we opened our eyes to it, we realized the pervasiveness and persistency of the problem.”

The Obama administration has also worked to keep the letter’s impact alive. Before he left office, Mr. Obama installed Mia Karvonides, who was Harvard University’s Title IX coordinator and an advocate of the Dear Colleague letter, in a career enforcement job at the civil-rights office — perhaps as a way to keep pressure on colleges and universities to stay the course. And in a letter he released in January, Mr. Biden reminded colleges that they are responsible for continued vigilance on the issue.

But is the letter’s legacy worth preserving? Many observers, on campus and off, argue that the Dear Colleague letter put colleges in the awkward and expensive position of playing police. A new book, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities (Encounter Books), accuses the Obama administration of helping to perpetuate a false "rape culture" narrative that claims sexual assault is rampant on American campuses and denies due process to the young men accused.

Robert L. Shibley is executive director of the Foundation for Individual Rights in Education, which believes the civil-rights office has gone too far in its enforcement. The group is lobbying the Trump administration for a rollback. "There’s no reason the OCR couldn’t change its line of thinking, mandate different standards, or just let colleges make their own decisions," he says. But, says Mr. Shibley, there also is a lot of inertia behind the procedures colleges have established.

As they look back to that day in April 2011, even many victims’ advocates now say they believe the letter had shortcomings. Among them is Ms. Potter, the professor who attended Vice President Biden's announcement at New Hampshire. The letter primarily told colleges what to do after an assault had occurred, she says. It’s now clear, she says, that it also should have focused on strategies for preventing assault.

"Think of the incredible preventative work surrounding vaccines and HIV and teenage pregnancy," says Ms. Potter. "Prevention is a really important factor in changing community behavior, and colleges and universities haven't done a really good job in addressing this yet."

Still, advocates say history now shows how powerful the Dear Colleague letter was in prompting colleges and universities to snap to attention on sexual assault.

"I do think the letter accomplished what officials set out to accomplish," says Ms. Dunn. "Despite very clear case law that sexual harassment and sexual assault were on a continuum and should be treated the same under Title IX, higher education didn’t really understand this until the Dear Colleague letter."

In fact, some argue that the Obama administration’s admonitions to campuses should have applied more broadly. Peter F. Lake, director of the Center for Higher Education Law and Policy at the Stetson University College of Law, says higher education must do more to expand Title IX outside its own walls — particularly if it wants support for how it deals with reports of assault. The same protections that now exist for college students, he says, should be extended to all Americans.

"It’s hard to make the argument to the American people broadly that we should be so obsessed with Title IX on college campuses when so many millions of Americans are affected by sex trafficking, domestic violence, and workplace violence, and we don’t appear to be caring about those things," says Mr. Lake. "If we only care about our own bubble and the only people who get access to our help are those inside the fortress wall, it rings pretty hollow."

Robin Wilson writes about campus culture, including sexual assault and sexual harassment. Contact her at robin.wilson@chronicle.com.

Correction (2/10/2017, 5:06 p.m.): This article originally misstated the outcome of the University of Wisconsin at Madison's investigation of two members of the men's crew who allegedly raped Laura Dunn. The university ultimately found one member, not two, to be not responsible for the assault; the other athlete graduated before the investigation was completed. The article has been updated to reflect this correction.