A better balance: providing survivors of sexual violence with 'effective protection' against sex discrimination through Title IX complaints.

• Author: Peterson, Alyssa
• Position: A Conversation on Title IX

FEATURE CONTENTS INTRODUCTION I. WHILE OCR HAS IMPROVED ITS RESPONSES TO SYSTEMIC INEQUITIES, INDIVIDUAL COMPLAINANTS FACE DELAYS II. STRIKING A BETTER BALANCE BETWEEN COMBATING STRUCTURAL DISCRIMINATION AND ENSURING EDUCATIONAL ACCESS FOR COMPLAINANTS A. OCR's Duty To Provide "Effective Protection" B. Increasing Compliance Through Intermediate Fining Authority C. Implementing Affirmative Steps To Decrease the Length of Investigations D. Increasing Effective Communication with Complainants E. Acting Proactively To Protect Complainants' Access to Education CONCLUSION INTRODUCTION

Despite Title IX's prohibition against discrimination based on sex, (1) many survivors of gender-based violence receive little to no support from their college or university after experiencing violence. (2) In response, an increasing number of survivors are filing Title IX complaints with the U.S. Department of Education's Office for Civil Rights (OCR). (3) After they file these complaints, most survivors must wait years--sometimes even until after they graduate or withdraw from the institution--to get redress.

While OCR has dramatically improved its efforts to reform structural Title IX compliance across universities, (4) and despite OCR criticizing schools for affording insufficient protections to victims alleging violations, (5) it has done relatively little to promote complainants' immediate access to education. In its pursuit of structural compliance, OCR requires institutions to create or improve systems, procedures, or offices involved in the handling of gender violence complaints. (6Examples of such efforts include requiring a university to establish a task force on sexual violence or to provide additional training to its staff.) (7) While these systemic reforms do ultimately benefit individual students, (8) OCR's decision to resolve both structural and more individualized issues (such as a complainant's lack of access to accommodations, their unreimbursed educational expenses incurred due to discrimination, or retaliation they experience) within the same voluntary resolution agreements has created unnecessary tension between the need to thoroughly investigate broad-based systemic issues (9) and an individual's interest in seeing her (10) complaint resolved in a timely manner. (11)

We argue that OCR's current approach of prioritizing systemic concerns over individual interests is contrary to the dual purpose of Title IX. As the Supreme Court explained in Cannon v. University of Chicago, Title IX (which is patterned after Title VI) (12) has two statutory aims: to "avoid the use of federal resources to support discriminatory practices" in education programs, and "to provide individual citizens effective protection against those practices." (13) OCR's current approach focuses disproportionately on achieving the former at the expense of the latter. However, the current tension is not insurmountable: OCR can strike a better balance between systemic reform and providing "effective protection" (14) to individual complainants.

We recommend that OCR take affirmative steps to reduce investigation delays by capping investigations at two years and hiring specialized gender-based violence investigators. Additionally, OCR should reform its communications with complainants by standardizing outreach and providing regular updates. Most importantly, OCR should not wait until the end of investigations to provide relief to individual complainants. To support its recommendations, this Feature contains selections from interviews with individuals who have filed Title IX complaints with a variety of OCR regional offices. (15)

1. WHILE OCR HAS IMPROVED ITS RESPONSES TO SYSTEMIC INEQUITIES, INDIVIDUAL COMPLAINANTS FACE DELAYS

   In its pursuit of systemic reforms, OCR has struggled to prioritize the task of securing timely relief for individual complainants. OCR's commitment to conducting thorough structural investigations of a growing number of complex gender-based violence complaints, along with Title IX's statutory requirement that OCR seek voluntary compliance from schools, (16) has produced long delays in investigating and resolving cases. Because OCR does not require remedial measures on behalf of complainants until systemic issues are resolved, complainants may receive relief years after they initially filed their complaints--often after they have graduated or withdrawn from school.

   Although Title IX encompasses two mandates--ending "the use of federal resources to support discriminatory practices" and providing "individual citizens effective protection against those practices" (17)--OCR has focused its attention on the former aim and has greatly expanded its efforts at systemic reform in recent years. (18) In April 2011, OCR released its groundbreaking "Dear Colleague Letter" (DCL). (19) The DCL's guidance reaffirmed the principle that sexual violence constitutes discrimination on the basis of sex and is therefore covered under Title IX. OCR called upon schools to "take immediate action to eliminate harassment, prevent its recurrence, and address its effects." (20) The DCL further contained the most thorough details to date of schools' specific obligations to combat gender-based violence and harassment. (21) With the issuance of this letter, OCR signaled that the government would initiate a more aggressive enforcement policy to hold schools accountable for Title IX violations.

   In addition to issuing new policy guidance, the federal government has also initiated an aggressive effort to enforce Title IX's prohibition on using federal resources to support discrimination. (22) In May 2014, OCR built upon its DCL and increased transparency by releasing an unprecedented list of fifty-five institutions under federal investigation for violating Title IX. (23) In response to receiving an increased number of complaints in fiscal year (FY) 2013, FY 2014, and FY 2015, OCR opened investigations into schools at a rapid rate; as a result, the number of institutions of higher education under investigation almost tripled. (24)

   OCR has also pursued Title IX's mandate of ending "the use of federal resources to support discriminatory practices" (26) by adopting a more critical posture in its dealings with schools. Prior to the Obama Administration, OCR had been labeled as a "rubber stamp" that "simply sign[ed] off on universities' decisions." (27) OCR's approach has changed drastically in recent years under Assistant Secretaries Russlynn Ali and Catherine Lhamon. For example, in response to a campaign in the summer of 2015 by the University of Virginia to weaken OCR's finding of noncompliance, Assistant Secretary Lhamon noted that "[t]he university was enormously displeased with what our findings were and very much hoped we would change them.... We did not." (28) Additionally, when Tufts University revoked its signature on an April 2014 agreement because it disputed OCR's determination that the school's policies at the time were noncompliant with Title IX, OCR held firm and refused to modify its finding. (29) The university later backed down and executed the agreement. (30) OCR's efforts to issue new policy guidance and to investigate schools more aggressively have increased schools' incentives to combat hostile environments.

   Unfortunately, OCR's approach to its structural mandate is in tension with the needs of individual complainants to achieve timely resolution of their claims. As OCR acknowledges, sexual violence investigations are often complex, and its systemic investigations are exhaustive and time-consuming as a result. For each investigation, OCR examines the school's culture, reviews previous institutional responses, interviews complainants and school officials, and analyzes existing policies and procedures. (31) In its investigation of Tufts University--which mirrors investigations at other institutions (32)--OCR conducted interviews with the complainant, senior administrators, and members of the faculty; obtained copies of documents from the complainant and the institution itself to shed light on how the complainant's report was processed (as well as how the school handled eight previous reports of violence); and reviewed both the school's current policies on sexual misconduct and its policies in effect at the time of the alleged discrimination. (33) And to add an additional layer of complexity, if OCR identifies noncompliance, Title IX requires that OCR seek voluntary compliance from a school before it initiates other enforcement actions. (34)

   These complexities, combined with a lack of resources, (35) delay justice for complainants, as OCR has decided to address discrimination faced by individuals (such as a denial of interim measures36) only after conducting systemic investigations. (37) This means that remedies for discrimination faced by

   individuals do not come until after OCR has reached a resolution agreement with the institution, malting the availability of individual relief dependent on how quickly the investigation of institution-wide systemic discrimination is resolved (and often on how cooperative the individual's school is). As a result, it may be the case that survivors at the most recalcitrant schools are perversely left without redress for the longest periods. For example, while OCR found that Tufts had "allowed for a continuation of a hostile environment that limited and denied [the complainant] access to the educational opportunities" (38) and required the school to reimburse her for "educational and other reasonable expenses," (39) this reimbursement was additionally delayed when Tufts temporarily revoked its support for the voluntary resolution agreement. (40)

   In particular, this policy of requiring schools to compensate survivors in voluntary resolution agreements can be insufficient, as these agreements could be issued after a student is no longer on campus. In these cases, some students will have already been forced...