As Federal Investigations of Sex Assault Get Tougher, Some Ask if That’s Progress

When it investigated a complaint of a sexually hostile environment at Yale University, the U.S. Department of Education seemed to give the institution a break. The agency’s Office for Civil Rights said in 2012 that Yale had made some mistakes but praised it for “voluntarily and proactively” changing its ways to create a “culture that is safe for all students.”

That was three years ago. Recent investigations of how institutions handle students’ reports of sexual assault haven’t been nearly as generous or hopeful. Last month the civil-rights office leveled its most grievous charge, finding that two universities had violated the gender-equity law known as Title IX. Michigan State University and the University of Virginia each had a “hostile environment,” or the basis for one.

The latest settlements show that federal inquiries into how colleges handle sexual assault are growing longer, tougher, and more damning. While Michigan State and Virginia aren’t the first institutions found to have violated Title IX, campus officials and higher-education lawyers see those judgments as particularly harsh. With so much national attention on ending sexual violence, federal enforcers are pointing fingers at colleges.

“The government has gone from issuing love letters to universities who agreed to straighten up and comply with Title IX, to these letters where the university really gets whacked,” says Wendy Murphy, a lawyer who has helped students file federal discrimination complaints against Virginia, as well as Harvard and Princeton Universities.

She hails the change as holding institutions responsible for protecting students. “These harsher findings with sanctions make it more likely that victims will come forward with reports of assault,” she says. “Victims will feel that it was worth it, because justice has been served.”

But some wonder if the government’s stricter stance is more about scoring points with activists and taking credit for progress on a highly sensitive issue. The civil-rights office, say campus administrators and consultants, has shifted from helping colleges comply with Title IX to almost automatically indicting them. The institutions under investigation for allegedly mishandling reports of sexual assault now number 144.

Colleges know that being on the list is a “no-win situation,” says Robb Jones, senior vice president at United Educators, an insurance and risk-management firm. “No matter what they try to do, or what facts they present, OCR is going to come out with a findings letter that says they violated the law.”

Catherine E. Lhamon, who has led the Office for Civil Rights, known as OCR, for two years, acknowledges that it has stepped up its inquiries. It now examines not just how a college handled an individual report of sexual assault but also everything it did on the issue over a three-year period. “It would be irresponsible for us to only look at certain facts,” she says, “and not to look systemically at whether those facts are an aberration or a practice.”

But that doesn’t mean the agency is determined to identify problems, says Ms. Lhamon. It has dismissed 78 complaints without opening investigations and has closed some investigations without finding violations, she says. “We are not trying to strike fear in anybody’s heart. We are trying to make sure students have their federal civil rights satisfied.”

Going About the Goal

It’s hard to argue with the goal of protecting students who report sexual assaults. What divides opinions is whether the government, with its prescriptive rules for and harsh judgments of colleges, is going about that goal the right way.

Earlier agreements to settle investigations, like Yale’s, tended to strike a cooperative tone. In resolutions involving Notre Dame College, Eastern Michigan University, and the University of Notre Dame, the civil-rights office called problems “concerns” and let campus officials explain in official documents why they had done things in a certain way. None of those three institutions was found to have violated Title IX.

It’s good, some victim advocates say, that colleges are now more worried about the government’s combing through their sexual-assault case files. For years, the advocates say, institutions dismissed or ignored students’ reports.

Activists rallied outside the Education Department in 2013, denouncing what they saw as its pattern of letting colleges off the hook. Carrying signs like “Support Survivors. Enforce Your Law,” they demanded stricter enforcement of Title IX. Some observers attribute the civil-rights office’s tougher stance in part to that activism. “Finally, the federal government is actually doing something on these cases,” says Alyssa J. Peterson, an organizer for the advocacy group Know Your IX.

In the past few years, colleges have acknowledged shortcomings, revised policies, and pledged better support for victims of sexual assault. But from the perspective of some campus officials, detailed federal mandates, legal wrangling over findings, and a bureaucratic, adversarial enforcement process that spans several years do not signal progress.

Agreements to resolve investigations are like jury verdicts, says Ms. Murphy, the lawyer who has helped students file complaints against their institutions. Like a jury, she says, “the federal government comes up with something in the middle of what was alleged and what it feels it is legally entitled to.”

In Virginia’s case, rather than find that the university had a sexually hostile environment, the civil-rights office said only that UVa had a “basis” for one. An official at the Education Department said there was no difference, but some lawyers interpret the wording as stopping short of the severe judgment.

In Michigan State’s case, the civil-rights office examined two reports of sexual assault without finding a hostile environment. But it said such an environment did exist more generally, in part because the university had not responded to other reports promptly and equitably, failed to maintain proper records in some cases, and did not notify students and employees of the presence of its Title IX coordinator.

For the office to find no violation in individual cases but still determine that a hostile environment existed is unusual, says Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy, at Stetson University. “They come into your closet and say, ‘Everything is in order, but we just went into your dresser, and your socks aren’t matching.’”

Administrators and consultants for campuses including Michigan State and Virginia either declined to comment for this article or would not speak on the record because of the sensitivity of this issue.

Reaching Agreements

Some colleges have sought technical assistance, and they report that the civil-rights office has declined to provide it to institutions under investigation. Meanwhile, campus officials say, the agency has later found fault with the policies on which the colleges had asked for help.

What’s more, the officials say, while investigations may be wider in scope, federal authorities do not fully examine individual cases, instead taking snapshots of an institution’s actions over time. That can lead the office to decide, for example, that the college had failed to punish an alleged perpetrator when, in fact, it did.

To resolve an investigation, the civil-rights office and a college reach an agreement as to what must change on the campus. While campus administrators review that agreement, they say, they are not first permitted to read the findings on which it is based. That puts them in the position of accepting a sight-unseen judgment of how they may have violated the law.

Many colleges go ahead and sign, simply to avoid further trouble, says Mr. Lake. “The alternative is to reject the deal and see that your federal funding may be on the line,” he says. “Most people won’t take that chance.” Last year Tufts University briefly revoked a resolution agreement with the government after it discovered that a letter of findings would declare it out of compliance with Title IX. Campus officials quickly recommitted.

Institutions don’t get to see the findings against them before signing agreements to resolve investigations, a press officer for the Education Department confirmed, but campus officials are briefed on the facts.

“We orally discuss findings in the beginning and throughout negotiations,” the press officer says, “so there should be no surprises.”

Ms. Lhamon, the assistant secretary for civil rights, defends her office against the impression that it doesn’t fully examine individual cases. “We do often hear from schools who say, ‘But wait, there is more.’ And we always run that information to the ground.” When institutions accuse the agency of missing things, she says, they usually turn out to be wrong.

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