Resisting rulemaking: challenging the Montana settlement's Title IX sexual harassment blueprint.

AuthorBaumgardner, Katie Jo

"Sexual assault and sexual harassment are intolerable; they undermine women's basic rights and, when perpetrated against students, can negatively impact their ability to learn and continue their education. As we approach the 40th anniversary of Title IX this year (2012), incidents of sexual assault on our college campuses remind us of the continuing critical importance of the law to reduce barriers in education. Our goal is to determine whether there are violations of federal law and if we find a problem, work cooperatively with [universities] to ensure that all students ... feel safe in their communities, regardless of sex.

--Thomas E. Perez, Assistant Attorney General for the Civil Rights Division

"Let me say this respectfully and with as much clarity as I can: you do not know my work. You do not know what I face every day in responding to a student culture of alcohol-infused hook-ups, where regrettable sex is a daily occurrence.... [The administrator's] voice has been missing from this debate ... [No university wants the Office of Civil Rights] knocking on our doors, Title IX complaint in hand, ready to put [our university] under the microscope...." (2)

--Anonymous Student Affairs Professional

INTRODUCTION

Every university and college across the nation--with the exception of three (3)--accepts federal financial assistance. Consequently, in the world of higher education, the impact of administrative regulation and compliance that accompanies federal funding cannot be overstated. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs or activities operated by recipients of federal financial assistance. (4) The text of Title IX states that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." (5) Since its enactment in 1972, Title IX most often has been associated with bolstering the participation of female students in athletics. (6) Title IX has generally been associated with the athletic arena, although the statute does not expressly address athletics. (7)

Until relatively recently, however, Title IX's application to sexual harassment was less well known. A superficial reading of the text does not immediately evidence inclusion of claims of sexual violence on college campuses. In fact, nothing in Title IX's legislative history indicates congressional intent to reach claims of sexual misconduct at all. (8) The idea that Title IX covers sexual misconduct took root years after the passage of the statute. Nonetheless, the legal proposition that sexual harassment can constitute discrimination on the basis of sex under Tide IX is now well settled, as the Supreme Court, in Gebser v. Lago Vista Independent School District, noted explicitly that "sexual harassment can constitute discrimination on the basis of sex under Tide IX." (9) Moreover, it is clear that Title IX also requires schools and colleges to protect students from sexual misconduct, sexual harassment, and sexual violence, and to take seriously all reports of sexual harassment. (10)

It is with this background that we arrive at the current Title IX landscape. The evolution of sexual harassment standards in the law and in Title IX compliance has had an immense impact on higher education. The Department of Education (DOE) is authorized and directed to carry into effect Title IX's nondiscrimination mandate by issuing rules and regulations consistent with achieving the statute's objectives. (11) The DOE delegates to the Office for Civil Rights (OCR) responsibility for enforcing Title IX and ensuring that institutions receiving federal funding comply with Title IX. (12) But the DOE and OCR have not published rules or regulations in the area of sexual harassment. Instead, OCR has issued guidance and "Dear Colleague" letters (DCLs). Under Title IX, OCR has jurisdiction to investigate complaints of noncompliance involving institutions receiving federal funds. (13) Failure to voluntarily comply with DOE standards can result in proceedings to withdraw federal funding. (14) OCR also has the power to refer a case to the U.S. Department of Justice (DOJ) for litigation. (15) Since 2011, universities across the nation have been scrambling to enact policies and procedures that comply with DOE guidance.

Notably, OCR has the authority to initiate compliance reviews even if no complaint has been filed against the institution. (16) By initiating reviews and investigations, OCR can target discrimination and highlight Title IX issues that the DOE thinks all higher education institutions should address. OCR's articulated rationale is simple: "By addressing new or emerging problems in this way, ... OCR can set a tone for future compliance." (17)

This Note argues that OCR's compliance investigations do more than "set a tone": the DOE--through OCR--uses the resulting findings and settlement agreements to force compliance of the entire higher education community with standards announced in its guidance and "Dear Colleague" letters, but not promulgated in rules and regulations adopted pursuant to the Administrative Procedure Act (APA).

Ultimately, universities face difficult decisions as they implement compliance measures at the university administration level and deal with student issues on their individual campuses. Given the DOE's threat of pulling federal funding, universities are forced to choose between affording students meaningful due process protections and complying with the newest government guidance. As one higher education professional asks: "Do we really want to be tagging students with scarlet letters? ... Or do we want to protect our educational mission?" (18)

When dealing with Tide IX and sexual harassment standards, the struggle is particularly acute; universities strive to design grievance procedures that balance protecting victims with providing adequate due process for accused students. This burden is complicated by the fact that sexual harassment claims, by their very nature, involve at least one party who feels like he or she has been sexually harassed. For institutions of higher education, this delicate balancing act presents broader questions about how far colleges should go in assuming investigative responsibility for issues that continue to frustrate the American legal system. (19)

These issues are manifest in the new sexual harassment standard set forth in the DOE's Resolution Agreement and the accompanying Findings Letter regarding an investigation of the University of Montana. In May 2012, the DOJ Civil Rights Division announced that it would join the OCR to conduct a formal Title IX (20) compliance review and Tide IV investigation regarding the University of Montana's response to sexual assaults and sexual harassment of students. (21)

Between September 2010 and December 2011, there had been allegations of student-on-student sexual assault at the University of Montana, as well as many alleged rapes in the surrounding town of Missoula in that three year period. (22) In a town where there had been at least eighty alleged rapes in the past three years, and a university where there had been nine allegations of student-on-student sexual assault, the Title IX compliance review was particularly important. (23) In response, the university took steps--termed "initial reforms" (24)--to prevent future harassment even before the formal investigation began. The government investigation included a review of these new efforts. (25)

For over a year, the DOE and the DOJ investigated the university's policies and procedures. (26) They assessed the university's policies, its implementation of policies, its adherence to proper procedures, and its responses to sexual harassment and sexual violence. (27) Ultimately, the investigation and review included a comprehensive examination of the university's policies, grievance procedures, and Title IX enforcement. (28) The DOE and DOJ reviewed thousands of documents, including all student complaints filed over three academic years. The investigation included multiple site visits and over forty interviews. (29)

The conclusion of the DOE and DOJ investigation on May 9, 2013 resulted in two documents: a Resolution Agreement (30) outlining the compliance agreement between the University of Montana and the DOE and DOJ, and a Findings Letter (31) documenting the investigation's findings. The investigative approach, standards applied by the government, findings, and remedies were explained in the Findings Letter. (32) In the Findings Letter, DOE stated: "The Agreement will serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault." (33)

The sixteen-page Resolution Agreement and thirty-one-page Findings Letter significantly redefined sexual harassment. (34) Prior to the government investigation, section 406.5.1 of the University of Montana's Sexual Harassment Policy defined sexual harassment as "conduct that 'is sufficiently severe or pervasive as to disrupt or undermine a person's ability to participate in or receive the benefits, services, or opportunities of the University, including unreasonably interfering with a person's work or educational performance.'" (35) In determining whether conduct constituted sexual harassment under this definition, the university used the following standard: "[w]hether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation." (36)

In this regard, Montana's Sexual Harassment Policy tracked the DOE's sexual harassment standard in the 2003 DCL--which was itself based on the DOE's 2001 sexual harassment guidance and, more importantly, on the Supreme Court's holding in...

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