SAVING TITLE IX: DESIGNING MORE EQUITABLE AND EFFICIENT INVESTIGATION PROCEDURES.

Author:Ellman-Golan, Emma
 
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In 2011, the Department of Education's Office of Civil Rights (OCR) issued guidance on Title IX compliance. This guidance has resulted in the creation of investigative and adjudicatory tribunals at colleges and universities receiving federal funds to hear claims of sexual assault, harassment, and violence. OCR's enforcement efforts are a laudable response to an epidemic of sexual violence on college campuses, but they have faced criticism from administrators, law professors, and potential members of the Trump Administration. This Note suggests ways to alter current Title IX enforcement mechanisms to placate critics and to maintain OCR enforcement as a bulwark against sexual violence on college campuses.

TABLE OF CONTENTS INTRODUCTION I. THE NEW LANDSCAPE OF TITLE IX ENFORCEMENT AT UNIVERSITIES A. OCR Guidance B. OCR Investigations and Resolutions II. THE DEBATE OVER THE PROPER ROLE FOR UNIVERSITIES A. Universities as Investigators . B. Investigative Procedures and Students' Due Process Rights III. MAINTAINING SCHOOL-BASED INVESTIGATIONS WHILE PLACATII CONCERNS OF BIAS OR VIOLATIONS OF DUE PROCESS RIGHTS A. Outsource Fact-Finding to Investigation Centers B. Evidentiary Standards CONCLUSION INTRODUCTION

In recent years, the problem of sexual assaults on college campuses has attracted widespread attention. (1) An estimated one in five women is sexually assaulted while in college. (2) These assaults are overwhelmingly perpetrated by people known to the victim, such as friends, classmates, hallmates, and dates. (3) Ninety percent of campus sexual assaults are not reported. (4) Whether the rate of sexual assaults on college campuses has suddenly increased or whether the media has simply devoted more attention to the problem, reports of the prevalence of sexual assaults on college campuses have resulted in dramatic changes from both school administrations and the federal government.

Many entities have drawn attention to this problem. Student activists have founded organizations dedicated to raising awareness of campus sexual assault, building networks among sexual assault victims, documenting universities' inadequate responses, and encouraging students to file Title IX complaints against their schools with the Federal Department of Education. (5) Journalists, too, have drawn attention to the issue. Since 2009, the Center for Public Integrity has been investigating university responses to students' sexual assault complaints. (6) This investigation led to a series of stories exposing the degree to which schools actively protected accused students and failed to impose any consequences on students found to have engaged in sexual harassment or violence. (7) The stories detailed lenient consequences for students found responsible for acts of sexual violence against other students. Students were punished with suspensions during the summer semester, alcohol treatment, or assignments to "write a letter of apology, or make a presentation to a campus advocacy group, or write a research paper on sexual violence." (8) Other news reports based on incidents around that time similarly suggest a climate tolerant of sexual assault. In one, a student who reported an assault to a campus police officer claimed that the officer responded, "[W]omen need to stop spreading their legs like peanut butter or rape is going to keep on happening 'til the cows come home." (9) In another, a school administration stopped all communication with a student who had reported a sexual assault to an administrator once the administrator found the student filed a formal complaint. (10) After multiple follow-ups from the student, the university not only chose not to proceed with her complaint but dismissed her for poor academic performance, which she claimed was a result of her psychological trauma because of the assault. (11)

Subsequent Department of Education investigations corroborated the media's findings, particularly as to the inadequacy of schools' responses to complaints about sexual harassment and violence. At multiple schools, officials ignored complaints of sexual harassment. (12) They prevented prompt and equitable resolutions of complaints by placing significant administrative burdens in front of students or staff members who sought to report an incident. (13) They improperly encouraged alleged rape victims to attend mediation with their alleged rapists. (14) They discouraged students from filing complaints by insinuating that an investigation would be too disruptive to the students' lives. (15) They failed to protect students against retaliation by friends of the accused. (16) They gave preferential treatment to accused student-athletes. (17) In one case, school administrators took eighteen months after a claim was filed to determine that there was insufficient evidence to support the student's allegation of sexual assault. (18) Further, administrators imposed sanctions on the complaining student for fraud and misrepresentation to school officials. (19) And one school allowed its marching band to haze its recruits in sexualized rituals of which the band's director, a school employee, was aware. (20)

The Department of Education's Office of Civil Rights (OCR) under President Obama was troubled by these practices that took place at schools across the country. (21) OCR believed that schools' insufficient attempts to prevent or remedy sexual harassment and violence on college campuses constituted violations of Title IX of the Education Amendments of 1972, (22) the federal Statute designed to eliminate sex-based barriers to educational equality. (23) OCR likely viewed the prevalence of sexual assaults on campuses as a result of shortfalls in its existing guidance. (24)

In April of 2011, OCR issued a Dear Colleague Letter (DCL) that called on school administrators to "take immediate and effective steps to end sexual harassment and sexual violence." (25) The letter took the form of guidance: it explained that OCR's interpretation of schools' obligation under Title IX is to prevent and remedy sexual harassment and discrimination. (26) It also suggested ways for schools to alter their sexual misconduct policies and reporting and investigation procedures to achieve compliance with the department's interpretation of Title IX. (27)

The DCL changed the landscape of Title IX enforcement: in response, schools hastily revised or rewrote their policies to achieve compliance and established quasi bureaucracies within each institution to investigate and resolve complaints of sexual harassment or violence. (28) It also led to a significant increase in OCR investigations of institutions of higher learning for possible Title IX violations. (29) The DCL does not carry the force of law; it is administrative guidance that explains the agency's interpretation of existing law (30)--but since noncompliance with its directives can put schools' federal funds at risk, (31) it has had the effect of imposing new regulations on schools.

OCR's new requirements have received significant backlash from those who believe that schools should not be in the business of investigating sexual harassment or assault claims, or that the investigations OCR recommends infringe on accused students' due process rights. (32) And because OCR's steps to curtail sexual violence on college campuses have been by administrative fiat, rather than by legislation, its post-2011 changes can easily be undone by the Trump Administration, whose surrogates have signaled that they are considering halting OCR's enforcement of Title IX. (33)

This Note argues that Title IX enforcement is necessary to promote school (34) policies that prevent the epidemic of sexual violence on college campuses. Part I outlines the new landscape of OCR enforcement after the Dear Colleague Letter. Part II argues that universities should investigate and adjudicate complaints of sexual violence and acknowledges some of the shortcomings of the current approach. Part III offers solutions to the concerns that schools do not have the resources to investigate effectively and that their investigations violate the rights of accused students. It suggests alternative means of conducting investigations and determining responsibility, which may placate OCR's critics and persuade the Trump Administration to continue the trend of Title IX enforcement.

  1. THE NEW LANDSCAPE OF TITLE IX ENFORCEMENT AT UNIVERSITIES

    The Department of Education's Office of Civil Rights ensures compliance with federal civil rights laws by entities receiving Federal Department of Education funds. (35) The agency periodically releases letters and documents that it deems "significant guidance documents." (36) These documents "do[] not add requirements to applicable law, but provide [] information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations." (37) This Part details the two main forms of OCR guidance. Section I.A discusses OCR's 2011 Dear Colleague Letter and 2014 Questions & Answers on Sexual Violence (Q&A). Section I.B analyzes OCR's letters to specific university administrators at the culmination of its investigations of those particular schools.

    1. OCR Guidance

      OCR's release of the Dear Colleague Letter in 2011 began the current trend (38) of heightened agency enforcement of Title IX. The DCL used statistics on the prevalence of sexual violence on college campuses to draw the inference that schools' existing efforts to address the problem were inadequate, and it called on schools to take "immediate and effective steps to end sexual harassment and sexual violence." (39) The DCL imposed increasingly stringent requirements on universities by describing how schools should investigate complaints of sexual harassment and violence. (40)

      The DCL created new obligations for universities. It requires universities to respond to and prevent sexual harassment and violence that has the...

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