A Closer Look at 7 Common Requirements in Resolved Federal Sex-Assault Inquiries

Say your campus likes to encourage students to resolve sexual-misconduct cases through mediated discussions. When a student confides in a professor that a guy took advantage of her while she was drunk and asks her not to tell anyone, the professor obliges.

Clear and convincing evidence is the standard your disciplinary panel insists on before finding someone responsible for an assault.

If you haven’t already heard from the U.S. Department of Education’s Office for Civil Rights, you may soon be in its cross hairs, because when it comes to the gender-equity law known as Title IX, you’re doing it all wrong.

That would be obvious to anyone who has slogged through the hundreds of pages of documents the civil-rights office, or OCR, has released since April 2011, when it issued a pivotal “Dear Colleague” letter that put more pressure on colleges to resolve students’ reports of rape. The Chronicle has posted the 20 or so publicly available resolution agreements in its Title IX investigation tracker.

Those agreements spell out policies and procedures that need to change or be added in order to bring colleges that were under investigation back on the right side of the law.

As of last month OCR had resolved 46 of the more than 240 investigations included in The Chronicle’s tracker. Thirty of those ended in resolution agreements.

“The minute one of these drops, experts are running around saying, ‘What’s the lesson I’m supposed to take away today?’” says Peter F. Lake, chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University’s College of Law.

It may be buried in a 40-page document. The requirements, he says, “keep getting bigger and broader and more challenging all the time.”

Some requirements are ubiquitous in the agreements. Such mandates include designating a Title IX administrator, putting in place extensive training programs, and using a lower standard of evidence in investigations. Other common elements are climate surveys, reporting requirements, and a warning that informal dispute resolution isn’t appropriate — even on a voluntary basis — when sexual assault or violence is involved.

Colleges face intense pressure today to get it right. Title IX requires that campus officials investigate reports of sexual harassment and assault, whether or not the police are called in. If colleges don’t handle complaints promptly and fairly, they can face penalties, including the loss of all federal funds.

In the early days of its shift toward stricter Title IX enforcement, OCR cut colleges some slack, praising them for whatever improvements they were making. But as the pace of complaints has intensified, the tone has become harsher.

When the Ncherm Group, which advises colleges on Title IX compliance and other issues, pored over many of the resolution agreements, it came up with a 37-point checklist of what OCR was looking for.

A Chronicle review of the resolution agreements issued since 2011 identified several key takeaways. Here are a few:

1. Every campus must have a Title IX coordinator.

“There are certain basic commandments, and the first is, ‘Thou shalt have a Title IX coordinator,’” says Mr. Lake. “That comes screaming through in every document.”

Detailed contact information and procedures for filing complaints should be clearly communicated to students and employees, not just in policy statements that few people read, but in pamphlets, student newspapers, and frequently visited websites.

Along with investigating and adjudicating individual cases of sexual misconduct, Title IX offices should study patterns of behavior among specific student groups, like athletes and freshmen, to determine whether any of them are particularly prone to bad behavior.

2. “Preponderance of the evidence” should be the standard.

Sexual-misconduct policies must all use a “preponderance of the evidence” yardstick for assessing responsibility. Under that standard, which is lower than those used in criminal cases, an accused student is found guilty if the college determines it’s more likely than not that an incident occurred.

Harvard Law School is among the institutions forced to change its standard of proof to meet the lower threshold after the civil-rights office found that its policies violated Title IX. Some Harvard Law professors have joined advocates of accused students in questioning whether that lower threshold is fair.

3. Colleges must offer extensive and continuing training to both students and employees.

At minimum, they should offer freshmen orientation sessions that discuss sexual misconduct, as well as the link between drinking and drugs and sexual violence.

Those sessions, which should be repeated annually for students living in residence halls, should spell out the differences between the Title IX process and the criminal process.

Students should know what to expect from the university and the police when they make a complaint, including the interim steps colleges will take to keep them safe, like changing class schedules or issuing no-contact orders.

Regular training is also required for Title IX coordinators, investigators, and other employees involved in grievance procedures.

4. Colleges should use clear and consistent definitions to describe sexual misconduct.

Guides like this, posted by Indiana University, should include terms such as sexual harassment, sexual violence, and consent. Training should include specific examples of each type of misconduct, from racist jokes to rape. Sexual harassment, for instance, is described in at least one resolution agreement as “unwelcome conduct of a sexual nature” that can include “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.”

Many of the resolution agreements have “boilerplate language” defining sexual harassment and what constitutes a hostile environment, Mr. Lake says. “They use the language repeatedly so it’s become currently understood that that language has to make it into your policy almost word for word.”

Anything OCR can do to simplify the hodgepodge of definitions colleges currently use to describe sexual misconduct would be welcome, says Wendy Murphy, a lawyer who has helped students file federal discrimination complaints against several universities.

“Having complicated definitions of sexual misconduct is becoming a pernicious form of injustice by confusion,” she wrote in an email. “Schools should have the same short definition of sex discrimination that they have for race discrimination, which should include examples of covered conduct but not boondoggle definitions that make everything needlessly complicated.”

5. Investigations should be completed within a reasonable time — usually 60 days.

Unless a college faces “extraordinary circumstances,” it should wrap up cases within 60 calendar days and shouldn’t use pending criminal action as an excuse for delay.

Both parties should get regular updates on the progress of a case, as well as written notice of the outcome.

OCR has had a tough time completing its own cases in a reasonable time as the pace of new cases accelerates, with most taking more than a year to resolve.

6. “Responsible employees” must promptly report sexual harassment and violence they hear about.

They could include faculty members, coaches, and resident advisers — basically, anyone except for a clergy member or counselor who has a confidential relationship with a student.

The University of Virginia’s resolution agreement states that “all employees designated as responsible employees will notify the Title IX coordinator or designee within 24 hours of receiving information about possible sexual harassment or sexual violence against students,” whether or not the student expresses interest in filing a complaint. If they delay responding, that could constitute a hostile environment and thus a Title IX infraction.

“When you’re a Title IX coordinator, that sends a chill down your spine,” says Mr. Lake. “You may have hundreds of ‘responsible employees’ someone could have confided in, and if one drops the ball on reporting potential harassment, the federal government could crack down.”

7. Campuses should conduct annual climate surveys.

Among other things, the surveys should measure students’ experiences with sexual misconduct, their knowledge about how to report it, and suggestions on how to prevent it.

“Surveys give campuses a tool to measure whether or not, at a minimum, the social perceptions on campus are changing with improved policies,” says S. Daniel Carter, board president of SurvJustice, an advocacy group for victims. “You can’t adequately take on the challenge until you know the full scope of the problem.”

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.