Sexual Assault & Title IX

Stories about campus crime and safety always attract interest, but these issues also are often difficult to summarize simply. That’s especially true with sexual assault, a subject that has been highly visible in recent headlines. Prominent universities like Yale, the University of North Carolina and Notre Dame have been the subject of investigations by the Department of Education; the alleged involvement of football players in sexual assaults has intensified the spotlight on incidents at Vanderbilt University, the U.S. Naval Academy, Florida State University and the University of Montana. To address these and other incidents, a seemingly re-energized movement of student activism has sprung up nationally, leading President Obama to announce in February 2014 a commission to investigate specifically issues that contribute to sexual assaults on campuses.

Universities, meanwhile, must contend with legal threats from all sides. The survivors of campus sexual assaults sometimes sue the colleges where they were studying. The universities also face lawsuits and increasingly aggressive investigations by the Obama administration under Title IX policies, the federal gender anti-discrimination law that governs how educational institutions must protect students from sexual assault. Additionally, colleges have been sued by accused assailants, who claim they were victims of the rush to judgment and that their own due-process rights were violated. There’s big money at stake: Title IX judgments (including those related to sexual assault), such as the multimillion-dollar verdicts in recent years against the University of Colorado and Fresno State, have been among the most expensive verdicts of any kind ever recorded against universities.

Sexual assault is arguably one of the few crimes for which college students are at greater risk than the general population. That said, journalists should be aware that estimates of prevalence vary widely. An often-cited 2007 survey estimated one in five women were victims of an attempted or completed sexual assault during college. Other studies have estimated that about 3 percent of college women were victims of rape at some point in their college career. Survey methodologies, definitions, and how questions are phrased can make substantial differences in reported results.

What further sets sexual assault apart from other campus crimes is a legal landscape that differs substantially. Generally, universities enjoy wide leeway to handle discipline as they see fit – within a campus judicial system, by referring out to local prosecutors or both. But when colleges learn of a possible sexual assault, they must adhere to detailed Title IX guidelines from the federal government that tell them precisely how to respond. The legal principle under this policy is that even a single episode of sexual assault can essentially create a hostile environment, depriving the victims of their civil right to an education.

Some of these instructions to colleges come from a 2011 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights (OCR). Later, many of these guidelines were given stronger legal footing when the Violence Against Women Act was reauthorized by Congress in 2013. For instance, colleges must train staff, and develop and publicize policies to support victims. They must remediate harm, for instance by providing counseling or ensuring a victim doesn’t encounter her assailant on campus. Compliance could include changing class assignments to minimize the number of times a victim might encounter his or her assailant.

Under Title IX policies, when universities receive an accusation, they must investigate it promptly through a campus-based process, regardless of whether local prosecutors proceed. Often in college towns, prosecutors are reluctant to get involved in incidents of sexual assault, particularly in “he said, she said” cases where there are no other witnesses. Universities must follow detailed requirements on how to conduct these judicial proceedings. For example, they can use informal mediation in cases of sexual harassment but not sexual assault.

The federal government enacted these policies to address concerns that incidents of rape on college campuses were being underreported and mishandled. But many of these requirements have been contentious, drawing criticism from civil liberties groups and the American Association of University Professors (Title IX also applies to university faculty and staff).  Some critics have said that the guidelines essentially require institutions to conduct these proceedings without giving the accused some of the same rights they would enjoy in a criminal trial. Most notably, the Dear Colleague letter directs colleges to use the standard of proof of “preponderance of evidence” – essentially, that the accused is more likely than not to be guilty. This standard is common in civil matters and campus disciplinary proceedings generally; remember, these aren’t criminal trials, so the same constitutional protections don’t apply. But critics argue these protections should indeed apply. They contend an accusation of sexual assault, even in a campus judicial system, can follow an accused victim for the rest of his or her life. They want stronger protections for students, faculty and staff who may have been falsely accused.

For students and administrators involved, and for journalists, these cases can be minefields. Journalists typically aren’t permitted to cover a campus disciplinary proceeding, and their reporting on individual cases often comes after the fact, using material when a student files a civil lawsuit or a complaint with the Education Department’s Office for Civil Rights. If OCR investigates, some materials related to the investigation should be available from the Department of Education under the Freedom of Information Act. The department often releases and publicizes settlement agreements with universities. Technically, a college that violates Title IX could lose its access to federal funding, but in practice OCR investigations are almost always resolved with a settlement agreement in which the university agrees to create and enforce new policies.

In February 2014, President Obama announced the creation of a federal task force that would produce a proposals and recommendations on initiatives the administration could take to address issues of sexual assaults on college campuses. The commission issued its report in April 2014, announcing the plan for the creation of a website called NotAlone.gov that would connect sexual assualt survivors with support services. The task force also asked colleges to start surveying students about the campus climate.