Two months ago, in settling a high-profile investigation, federal officials told the University of Montana at Missoula how to protect students from rape.
The university had failed to respond adequately to numerous sexual assaults, the U.S. Departments of Education and Justice detailed in two lengthy letters to Montana’s president. Thirty-seven additional pages of requirements—new policies, training sessions, climate surveys—spelled out how to establish a safe, supportive campus. The settlement was a “blueprint,” an official said, for colleges nationwide.
Advocates for women’s rights hailed it as important progress. Campus lawyers started reading. And defenders of free speech raised a furor: The government had redefined sexual harassment, they said, to mean almost anything.
The Foundation for Individual Rights in Education, known as FIRE, called the settlement “a shocking affront to the United States Constitution.” Critical columns appeared in The Wall Street Journal, The Washington Post, and The Chronicle. A committee of the American Association of University Professors said it was “deeply concerned” about academic freedom; Sen. John McCain fretted over policy changes “unilaterally dictated” by federal agencies. Last week FIRE led several groups, including the Student Press Law Center and the American Council of Trustees and Alumni, in demanding a retraction.
The Education Department has countered that the agreement was “entirely consistent with the First Amendment,” and the Justice Department defends the settlement as constitutional.
With sexual assault on campuses having set off a national movement—and more students asking for federal investigations of their colleges—administrators are deliberating how best to serve their communities and comply with the law. The settlement represents a model for both, but guidance on sexual harassment and assault isn’t easily dispensed or interpreted.
The University of Montana, meanwhile, is hard at work on fulfilling its new requirements, which came with a strict timetable. Lucy France, general counsel there, made a spreadsheet to track them. Hire a consultant on equity issues. Develop a confidential tracking system for reports of sexual misconduct. Strengthen communication with law-enforcement partners. For each requirement, she lists the person in charge, deadline, and progress to date. “Just breaking it down,” she says, “so we don’t miss anything.”
On other campuses, her counterparts are weighing their responses. What action, if any, does the unusually comprehensive and detailed settlement demand of them?
Adopting even some of its requirements could be time-consuming and costly. And policy changes carry the risk of legal threats from free-speech groups. But a federal blueprint for protecting students calls for deference, especially as more colleges are drawing scrutiny from Washington.
The Education Department is now investigating sexual misconduct at more than two dozen colleges under Title IX of the Education Amendments of 1972, which prohibits sex discrimination at institutions that receive federal funds. Last week Swarthmore College and the University of Colorado at Boulder joined the list. And students and alumni from around the country rallied in Washington for tougher sanctions when colleges fail to support victims of sexual assault.
Among the demonstrators’ demands was the continued involvement of the Justice Department, which isn’t a typical partner in Title IX investigations. Although legal experts don’t necessarily expect more collaboration between the agencies, officials at both affirmed the value of working together on enforcement.
Jocelyn Samuels, principal assistant attorney general in the Justice Department’s Civil Rights Division, says: “The government is stronger when we speak with one voice.”
‘Unwelcome Conduct’
Its message to Montana was loud, if not fully clear.
When it comes to defining sexual harassment at educational institutions, two Supreme Court cases decided in the late 1990s—Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education—set the standard. Institutions can be held liable when they have actual notice of and are deliberately indifferent to harassment “so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect,” as Davis puts it.
Montana’s prior policies had incorporated that legal language—so much of it, federal officials said, that it could have confused students and potentially deterred them from coming forward. In one of the two letters to the university, the agencies simply said: “Sexual harassment is unwelcome conduct of a sexual nature.”
That definition prompted critics to wonder what everyday practices the government would now deem inappropriate. “A student giving another student a Valentine’s Day card,” wrote Senator McCain. An art-history instructor showing images of nude paintings in class, said the American Association of University Professors.
Not so, says Ms. Samuels. “The critiques that have been made of the agreement represent a misunderstanding of what it requires and what it is intended to do.”
Federal officials and others have sought to clarify, more plainly than the settlement letter does, a two-tier definition of sexual harassment. The more inclusive one (“unwelcome conduct”) encourages reporting and alerts colleges to potential issues. The legally specific one, borrowing language from Davis, determines if the report rises to the level of an offense.
“Students should be able to make complaints about their concerns without having to make their own assessment about whether a violation of the law has occurred,” Ms. Samuels says.
To constitute a violation, harassment must be serious enough to deny or limit a student’s ability to participate in or benefit from an educational program. “A single unwelcome off-color joke would not be sufficient to amount to a hostile environment,” Ms. Samuels says.
Try putting those standards into practice with both victims’ advocates and civil libertarians watching. “It’s really hard to write policy when you have a lot of people weighing in,” says Ms. France, Montana’s counsel. “We run the range of ‘You’re not doing enough’ to ‘You’re doing too much.’”
The settlement also requires the university to follow up on reports, track them in a database, and protect alleged victims during an investigation. That process will necessarily apply to some harassment that meets only the first standard, Ms. France says.
If it’s apparent from the start that a report shows no evidence of sexual harassment, an incident might not be investigated, she says. But the university plans to be responsive, she says, rather than “putting our head in the sand and saying this isn’t a problem, or this seems innocuous.”
The database requirement has outraged FIRE, the free-speech group, especially because the university must submit its files, with names of individuals accused of harassment, to the federal government. “They’re encouraging the reporting of constitutionally protected speech,” says Greg Lukianoff, president of FIRE. “At worst innocent people get in trouble, and at minimum people really watch what they say.”
Ann E. Green worries about the repercussions in the classroom. “If there’s a climate of fear, it’s very difficult to have robust dialogue about topics that are controversial,” says Ms. Green, a professor of English at Saint Joseph’s University and chair of the AAUP’s Committee on Women in the Academic Profession when it sent a letter of concern about the settlement.
This month the committee heard back from federal officials, who discussed the two standards and said they shared the professors’ commitment to “the preservation of free speech in the university setting.”
The letter doesn’t clarify, though, what happens between when a report is filed and a finding is reached. Maybe separation of the parties. Or counseling for the complainant. The original settlement letter mentions “taking disciplinary action against the harasser,” but the response to the professors says that’s not required.
“The university must of course abide by Constitutional standards,” it says, “in determining when discipline is appropriate.”
Public Comment
As the University of Montana works its way through Ms. France’s spreadsheet, colleges are trying to make their own sound decisions.
Each campus faces a unique situation, says Ms. Samuels, of the Justice Department, but the settlement can still serve as a model. She describes the “basic components of a comprehensive response": policy review; clear definitions of sexual harassment; adequate investigative procedures; training for faculty, staff, and students; work with an equity consultant.
“The idea is that we have done a lot of thinking about structures that universities can put into place to enable them to protect their students, respect civil rights, comply with the law, and provide equal educational opportunity,” Ms. Samuels says. “We hope that other colleges and universities will find that thinking to be of value.”
The documents in Montana’s settlement offer precision not found in other recent resolutions of sexual-misconduct investigations by the Education Department, says Brett A. Sokolow, chief executive of the National Center for Higher Education Risk Management, a law and consulting firm. This settlement can guide colleges on how and whom to train, with what content, and how frequently, he says.
“How on earth do we do all this?” Mr. Sokolow says he has heard campus officials ask. Or “How on earth do we run a university if we do all this, because this is all we will be doing?”
Beyond Montana, colleges would be wise to hold off on making their own spreadsheets, says Dennis M. Cariello, a lawyer in New York who specializes in colleges’ regulatory compliance. “This document is not a guidance letter,” he says, referring to documents the Education Department occasionally releases to clarify rules for all colleges. “It is not law. It is not regulation.”
What the settlement can do, says Mr. Cariello, a former deputy general counsel for the Education Department, is remind colleges to develop consistent policies, strong training sessions, and a clear process for students to report harassment.
Each new document from the Education Department can shift compliance efforts, and observers like Mr. Cariello are eager for the agency to solicit public comment before continuing to direct colleges on sexual misconduct. With input from campus officials and others, federal officials could establish better rules that would be easier to follow and enforce, he says.
“It’s unfortunate,” he says, “that they haven’t done it yet.”
Clarification (7/26/2013, 12:16 p.m.): This article originally implied that Ann E. Green is still chair of the American Association of University Professors’ Committee on Women in the Academic Profession. Although she led the committee when it sent the letter to federal officials, she finished her term on June 30. The article has been updated to reflect that.
