The News
The U.S. Department of Education put colleges on notice Tuesday that their obligations to investigate sexual-harassment complaints don’t end when the accused professor resigns or moves on to another institution.
That warning came in the form of an agreement between the department’s Office for Civil Rights and Arcadia University, in Glenside, Pa. The office found that the private institution had violated the federal gender-equity law known as Title IX when it failed to investigate years of complaints from students and the faculty that a professor, who isn’t named in the document, had been sexually harassing female students.
Arcadia did finally open a campus investigation in 2021, following a formal complaint. But officials canceled a planned hearing and closed the case after the professor resigned. That violated the university’s responsibility “to determine whether sex discrimination occurred and to redress any hostile environment students may have suffered,” the federal civil-rights office, known as OCR, said in its findings.
The Details
Between 2018 and 2021, several students and faculty members reported to Arcadia’s then chief of human resources, and to a dean, that a professor had been sexually harassing female students, the federal investigation found. Those complaints showed up in the professor’s course evaluations starting in 2019. One student wrote that the professor “made many sexual [sic] inappropriate comments on a regular basis. Everyone felt uncomfortable.” Another student reported “a lot of strange comments of” a “sexual nature.”
The former chief of human resources mistakenly believed she couldn’t pursue the accusations because the professor had tenure, the civil-rights office noted. The HR chief also erroneously thought Title IX didn’t apply, because no one had alleged inappropriate touching. The university also failed to follow up on reports that the professor had retaliated against students who had complained, by accusing them of cheating.
“Arcadia University first ignored repeated notice that a professor serially harassed university students, and then compounded the discriminatory harm — in violation of Title IX — when it ended its investigation based on the professor’s resignation, without determining whether university students needed action to end and redress a hostile environment resulting from multiyear sexual harassment,” Catherine E. Lhamon, the department’s assistant secretary for civil rights, said in the announcement of the agreement with Arcadia on Tuesday.
To close a federal Title IX investigation at a college, the civil-rights office typically crafts what it calls a resolution agreement, which directs the institution to take certain steps to come into compliance with the law. Arcadia’s agreement requires the university to hire a third party to finish its investigation of the formal complaint against the professor. If the accused conduct is substantiated and created a hostile environment on the basis of sex, “individual remedies” to the people involved must be awarded.
The university must also conduct a comprehensive investigation of the professor’s actions for a period of four years to determine whether the person created a hostile environment.
A campus spokesman, Dan DiPrinzio, wrote in an email to The Chronicle that Arcadia had fully cooperated with OCR “and will be fully compliant with the resolution agreement.”
The Backdrop
Colleges for years have been under pressure to drop a practice that’s known as passing the harasser, if they fail to report credible information about sexual-harassment complaints when a professor moves to a new institution. Sometimes, it’s because administrators fear defamation lawsuits, or because they’ve signed confidential settlement agreements with the faculty member, who agrees to leave if the college keeps quiet.
Increasingly, colleges are trying new policies to improve reference checks for new hires, and to let other colleges know about employees’ past misconduct. The National Academies of Sciences, Engineering, and Medicine have been examining ways to update campus policies, as well. A recent report on those efforts said that “the ramifications of passing the harasser include not only failing to hold harassers accountable for their actions but also reinforcing an institutional climate in which sexual harassment is perceived as tolerated.”
The Stakes
The resolution agreement serves as a reminder that, even when an accused harasser moves on, the college has an obligation to remedy any of the problems left behind, according to Brett Sokolow, founder and board chair of TNG, a risk-management firm that advises colleges on Title IX and other matters.
Title IX regulations typically allow a college to dismiss a complaint if someone resigns or is hired elsewhere, Sokolow said. But colleges must still follow up on their “remedial responsibilities” to make sure those affected by the alleged harassment receive counseling and other needed support, he said, and that employees are trained in responding to sexual harassment when it occurs.
The agreement announced on Tuesday suggests that Arcadia didn’t pursue the investigation far enough to determine whether a hostile environment was created, and that remedies were called for, Sokolow said.
“What OCR is saying is, you won’t know the extent of the harm unless you complete the investigation,” he said. “Do what you need to do to make sure this isn’t an ongoing problem for this department, or these students.”
As an example, Sokolow said, if 12 people were identified as witnesses or potentially harmed parties in a sexual-harassment case, and six had been interviewed, the university wouldn’t have to continue the investigation by interviewing the six other witnesses after the alleged harasser left, to determine whether the harassment had occurred.
The institution would, however, be obligated to make sure the needs of the six people it had already reached out to had been addressed.
Joshua A. Engel, a lawyer who often represents faculty members and students accused of harassment, said the focus should be on responding to the effects of harassment, not on uncovering new evidence about the person who has moved on.
“The school should focus on providing supportive measures and accommodations to the affected students. When the professor resigns, the risk of continued harassment from this person has been alleviated, and the school can focus on remedial measures,” Engel wrote in an email. (Victims-rights advocates point out that people accused of harassment can continue those behaviors at their next campus.)
“A determination that someone violated the rules when no further action can be taken serves no real purpose,” said Engel. When investigations are conducted by inexperienced investigators using the “lowest standard of proof,” the outcomes aren’t always fair, he said.
“Schools should not be required to risk damaging the reputations of faculty when there is no real actual benefit to the victims,” he said.
The agreement suggests, however, that victims of harassment benefit when their colleges have fully investigated complaints and taken steps to prevent them from recurring.
