Campus sexual assault adjudication and resistance to reform.

Author:Anderson, Michelle J.
Position:III. Campus Sexual Assault Reform through Conclusion, with footnotes, p. 1969-2005 - A Conversation on Title IX

    An increasing awareness of the widespread nature of campus sexual assault facilitated legal change at the state and federal level to address it. No matter to which study one refers, campus sexual assault is a large problem. In 1985, Mary Koss published a survey of 6,000 students at thirty-two college campuses, finding that one in four college women had experienced rape or attempted rape. (149) In 2006, a National Institute of Justice survey found that 19% of undergraduate women were victims of attempted or completed sexual assault since entering college. (150)

    In 2014, President Barack Obama established a White House Task Force To Protect Students from Sexual Assault, which called for campuses across the country to conduct climate surveys to measure the incidence of sexual victimization on campuses. (151) In 2015, under the auspices of the Association of American Universities (AAU), twenty-seven colleges and universities distributed campus climate surveys to their students and found that 23% of female undergraduates and more than 5% of male undergraduates experienced nonconsensual penetration or sexual contact involving physical force or incapacitation. (152) In 2016, the Bureau of Justice Statistics published a campus climate survey of twenty-three thousand students, finding that the prevalence rate for completed sexual assault since entering college among female undergraduates was 21% and among male undergraduates was 7%. (153)

    The key reforms in response to the problem of campus sexual assault each have analogies in the rape law reform movement. Pushing to make colleges and universities respond equitably to campus sexual assault is analogous to progressive efforts to abolish the unequal procedural hurdles in rape law. The idea of affirmative consent, which has recently taken hold in many colleges and universities, is a standard designed to maximize sexual autonomy, which rape law reformers have advocated for in the criminal law as well.

    1. OCR Requires Equitable Resolution of Campus Sexual Assault

      The second wave of the feminist movement in the late 1960s and early 1970s reinvigorated an effort to pass the Equal Rights Amendment to the U.S. Constitution and to push for other legal change for equality at the state and federal level. A range of progressive advocacy organizations, including the National Women's Law Center, the ACLU Women's Rights Project, and the NOW Legal Defense and Education Fund, engaged in intensive advocacy, litigation, and policy work to ensure equality in educational settings. They worked for the passage of Title IX, and then worked behind the scenes advocating for progressive agency interpretations of the law.

      Congress enacted Title IX in the 1972 Education Amendments. (154) It states: "No 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...." (155)

      Advocacy organizations successfully brought cases across the country to make explicit universities' legal obligations to protect students. For example, in Davis v. Monroe County Board of Education, brought by the National Women's Law Center, the Court held that peer-on-peer sexual harassment could violate a student's right to an equal education. (156) Students themselves were also part of the team pushing for change, albeit at least initially at a more local level. In 1990, for example, Brown University students approached campus administration about a number of instances of sexual misconduct committed by their peers and requested that the Brown disciplinary code of conduct explicitly identify sexual misconduct as a violation. (157) Administrators discussed the students' concerns, but took no action. (158) Frustrated, student activists began listing the names of students accused of sexual misconduct on library bathroom walls. (159) The University removed or painted over the names, and students reproduced the list again. The list of students' names in bathrooms at Brown attracted national media attention, which placed great pressure on administrators; by 1991, Brown identified sexual misconduct as a violation in its disciplinary code. (160)

      Student activists' work to get colleges and universities to respond equitably to campus sexual assault derived from the same impulse behind progressive opposition to the unique procedural hurdles for rape prosecutions. It also coincided with legal advocacy that was changing the scope and impact of Title IX. For example, the Brown activism happened at the same time that the Supreme Court reviewed a case involving sexual harassment of a high-school student and held that students could sue under Title IX for money damages. (161) At about the same time, the New Jersey Supreme Court issued the M.T.S. decision, which moved rape law away from the force requirement and toward the idea that rape law is designed to vindicate sexual autonomy. (162)

      Congress authorized OCR to enforce Title IX's prohibition on sex discrimination "by issuing rules, regulations, or orders of general applicability." (164) Congress also directed OCR to achieve compliance "by the termination of or refusal to grant or to continue assistance under such program or activity ... or ... by any other means authorized by law." (164)

      OCR has issued considerable guidance over time about how it interprets and enforces Title IX. In 1997, for instance, OCR issued guidance on disciplinary procedures, (165) which required notice, "[a]dequate, reliable and impartial investigation of complaints, including the opportunity to present witnesses and other evidence," reasonably prompt time frames, notice of the outcome to the parties, and an "assurance that the school will take steps to prevent reoccurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate." (166)

      At the same time, OCR underscored the constitutional rights of the accused: "The rights established under Title IX must be interpreted consistently with any federally guaranteed rights involved in a complaint proceeding." (167) The agency also recognized that states and universities may grant respondents additional rights. (168) OCR emphasized the procedural interests of both parties:

      Indeed, procedures that ensure the Title IX rights of the complainant while at the same time according due process to both parties involved will lead to sound and supportable decisions. Schools should ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant. (169) Throughout the history of Title IX, OCR has underscored that the law is not designed to advantage complainants over respondents, but to require colleges and universities to respond equitably to allegations of sexual assault. In 2001, OCR issued guidance focused on the due process rights of the accused. (170) It noted, "[T]he Family Rights and Privacy Act (FERPA) does not override federally protected due process rights of persons accused of sexual harassment." (171) It underscored, "Schools should be aware of these rights and their legal responsibilities to individuals accused of harassment." (172)

      In 2011, OCR issued substantial, additional guidance. In this "Dear Colleague Letter," OCR reaffirmed that "sexual violence ... interferes with students' right to receive an education free from discrimination." (173) OCR required that schools "take immediate and effective steps to end ... sexual violence" in order to protect students' civil rights. (174) OCR again stressed the need for equal treatment of both the accuser and accused. It demanded "[a]dequate, reliable, and impartial investigation of complaints." (175) Schools were required to disseminate a notice of nondiscrimination and designate a Title IX coordinator on campus to receive and process complaints and to implement Title IX. (176) The Dear Colleague Letter also affirmed that Title IX regulations require schools to adopt and publish grievance procedures, including specific timeframes, which "must meet the Title IX requirement of affording a complainant a prompt and equitable resolution." (177)

      OCR also reaffirmed explicitly its practice of requiring that schools use a preponderance of the evidence standard--a "more likely than not" standard--in adjudicating campus sexual assault, which it had imposed on schools in previous investigations. (178) OCR based this requirement on the standard for other proceedings involving discrimination under Title VI and Title VII. (179) The Dear Colleague Letter also noted that disciplinary procedures using a clear and convincing evidence standard were not fair and impartial under Title IX. (180)

      OCR reaffirmed the necessary procedures to ensure fairness for both the accuser and the accused. Schools must treat procedures equitably as between the parties, including "not allowing] the alleged perpetrator to review the complainant's statement without also allowing the complainant to review the alleged perpetrator's statement." (181) Both parties must have an "equal opportunity to present relevant witnesses and other evidence," and both parties should have "similar and timely access" to relevant information. (182) Schools are not required to allow or provide lawyers in sexual violence proceedings; however, if lawyers are allowed, then they must be allowed for both parties. (183) Similarly, any appeals process (which OCR recommended) must be available to both the accuser and the accused. (184) To protect the impartiality of the proceedings, "any real or perceived conflicts of interest between the fact-finder or decision-maker and the parties should be disclosed." (185)

      OCR also established steps that schools should take to protect the complainant. When a complaint is made, a school should inform the complainant of...

To continue reading