Making “the list” can be a good thing. You may have made “the team;” you may have been named one of the “top ten” best…. But if you are one of the 55 colleges and universities from 27 states named on the May Day 2014 list of the Office for Civil Rights (OCR), you know that making the list is not a good thing.
OCR is the federal agency that enforces Title IX, the federal law that prohibits discrimination on the basis of sex in institutions receiving federal financial assistance. Being on the list means that you are under investigation for possible violations of Title IX. Although Catherine E. Lhamon, OCR’s Assistant Secretary for Civil Rights, explains that being on the list “in no way indicates … that the college or university is violating or has violated the law,” the public perception is that you have done something wrong. Public perceptions influence enrollment.
What do you do now?
Keep Calm and Learn Section 304
The first step is to analyze and publicize the perfect storm that led to the publication of the list by OCR. The story starts in March 2013, when President Obama signed the Violence Against Women Reauthorization Act (VAWA). The Act includes Section 304, which drastically changes the crime reporting responsibilities of institutions of higher education under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). Section 304 includes new reporting categories of crimes and identifies new categories of hate crimes that colleges and universities must report.
In addition, Section 304 requires more transparency in the procedures and decision-making of college and university disciplinary boards that handle allegations of sexual violence, and includes mandates for extensive prevention efforts. Colleges and universities must make a “good faith effort” to comply with the new requirements in their October 1, 2014 Annual Security Reports.
Section 304’s push for transparency catalyzed Congressional calls for transparency in the operation of OCR and the publication of names of institutions currently under review. OCR itself made significant changes to its Case Processing Manual on April 9 and April 29, 2014, making more explicit the processes that it will undertake when a complaint of sexual assault or sexual violence is received, including strict timelines under which the agency will demand cooperation from the institutions against which complaints are lodged.
Over the last several years, OCR has also changed the legal standard under which educational institutions can be held liable for failing to protect students from peer-peer sexual harassment. The Supreme Court in Davis v. Monroe County Board of Education (1999) imposed liability if school officials were deliberately indifferent to sexual harassment of which they had “actual knowledge.” OCR, however, imposes responsibility for sexual harassment about which the institution “knows or reasonably should know.”
Institutions are required not only to discipline offenders, but to undertake unspecified systemic interventions to eliminate any resulting hostile environment. Subsequent Dear Colleague Letters from OCR and the Department of Justice have made compliance with OCR directives a moving target. The National School Boards Association has introduced legislation to curb what they see as OCR’s federal overreaching into education.
While publication of OCR’s list of current investigations may not constitute a genuine indictment of those schools, the concern with sexual violence on campuses across the country is real. Statistics quoted indicate that one in every five female college or university students is the victim of sexual assault, and freshmen or sophomore women are most vulnerable.
Complaints to OCR have risen dramatically in the last few years: from 17 reports in fiscal year 2012, to 30 in 2013, to 37 in the first half of 2014 . . . and many sexual assaults, especially when the perpetrator is known to the victim, go unreported.
Communicate With Constituencies
So, the bottom line is that the problem of sexual violence on campuses is real and, for better or worse, an initial list is out. What can colleges and universities on the list do to counteract the public perception of wrongdoing?
First, institutions have to remind their constituencies and prospective constituencies that a single complaint from one individual can result in an OCR investigation. OCR complaints may take years to resolve. One or more of the complaints that prompted the identification of colleges or universities on the list dated back to 2010.
When OCR receives a written or electronic complaint, the agency follows prescribed protocols, and may release only limited information about the nature and progress of its investigations. The complainant is not identified. Whenever only limited information is available, the accused is suspect.
What colleges on the list must do is to make sure that they educate their constituencies that an OCR investigation is not a determination of guilt. OCR is not primarily interested in imposing liability. OCR wants to engage with institutions in a Voluntary Resolution Agreement: assurance that the institution against which the complaint is lodged will take steps to remedy any perceived defects in its policies and procedures for investigating and remediating sexual violence on its campus.
Make a “Good Faith” Effort
Two additional, recently released documents added fuel to the perfect storm. The First Report of the White House Task Force to Protect Students from Sexual Assault was released in April 2014. OCR simultaneously released an extensive 52-point guidance document, its April 29, 2014 Dear Colleague Letter, “Questions & Answers.”
The magnitude, and now the awareness of the problem, has taken on a new, larger dimension in the public consciousness. All colleges and universities are now under the microscope. They need to assure their current and future students that they are taking steps to comply with the Task Force Report and OCR’s Q&A document.
This compliance will require all colleges and universities, especially those on the list, to (1) conduct campus climate surveys to ascertain the scope of the problem of sexual violence on their campuses, (2) implement prevention strategies, including engaging the 98% of men on campus who are not perpetrators to step in to prevent sexual violence, (3) update sexual misconduct policies to reflect the new information about sexual abuse on campus, (4) provide victim services beyond the guidance and counseling services already on campus, and (5) partner with community agencies and victim support services so that victims receive comprehensive and long term support that they need.
Alcohol awareness programs can be a part of the prevention effort. College and university websites must identify their trained Title IX coordinators; programs for training bystanders what to look for and how to respond to suspected potential sexual misconduct can also be provided online.
Bottom Line
ABC News calls the publication of the list of 55 institutions “a warning shot.” Faculty, students, and staff must be involved in planning to prevent sexual violence on campus and in implementing strategies identified by the White House Task Force and OCR.
Consult your institution’s legal counsel, or call KingSpry for a review of compliance with the ever-mounting governmental regulations pertaining to student safety.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
