In the past three years, the U.S. Department of Education’s Office for Civil Rights (OCR) has rewritten regulations on campus responses to student sexual assault. Starting with the issuance of a significant regulatory guidance in 2011, OCR has imposed new compliance obligations and become more aggressive in blowing the whistle on higher education institutions that process sexual-assault complaints in ways that deviate from the new regulatory requirements.
OCR is currently conducting high-profile investigations at more than 85 colleges and universities, including prestigious Ivy League institutions, flagship state universities, public higher education systems, sectarian institutions, music schools, historically black institutions, community colleges, law schools, and medical colleges. If OCR comes calling, investigators will request the opportunity to interview board members. Investigators will ask pointed questions about the allocation of institutional responsibilities for sexual-assault investigations and adjudications. Were you to be interviewed, what questions would you be likely to get? This column suggests four.
(1) Who is the institution’s Title IX coordinator? Although that term does not appear in Title IX, OCR’s implementing regulations require that colleges and universities assign coordination of statutory compliance efforts to a single campus official, referred to in the regulations as the Title IX Coordinator. The institution must notify all students and employees of the name, office address, and telephone number of the Title IX coordinator. OCR investigators will invariably ask interviewees if they can identify the Title IX coordinator. Can you?
(2) Have you been trained? New regulations increase the number of campus constituencies that must be trained and broaden the scope of mandatory training. Most institutions provide training sessions to board members on such topics as how sexual assault is defined, its prevalence, how to recognize it, how to report it, what immediate action the institution is required to take when a sexual-assault complaint is filed, and what processes Title IX requires when institutions receive complaints. Have you been trained? Do you know how to respond if you are asked for the definition of sexual violence or other details about your institution’s processes for investigating and adjudicating complaints?
(3) In what respects do campus sexual-assault proceedings differ from rape trials in criminal courts? Perhaps the most common misperceptions among board members are that sexual assault must be proven beyond a reasonable doubt and that consent—in the form of a complainant’s failure to say no—is a defense to sexual assault. Both those misperceptions derive from criminal law, which provides procedural protections for persons accused of rape that are not available to respondents in campus proceedings. A campus proceeding is not a criminal proceeding. OCR requires that campus sexual-assault cases be adjudicated under the “preponderance of evidence” standard, a standard that is easier for a complainant to meet.
OCR also requires that consent be assessed under a standard different from the “failure to say no” standard used in criminal proceedings. Under most campus Title IX policies, a complainant must affirmatively consent to sexual activity by saying yes and using clear words to manifest consent. Do you understand the features of the campus process that distinguish it from a criminal proceeding—and why those features are significant?
(4) What is the Clery Act? Title IX regulates the manner in which sexual-assault complaints are investigated and handled. A separate law—the Clery Act—requires institutions to disclose various categories of sexual-misconduct complaints to the public, both by keeping logs and by publishing annual safety reports. Have you been briefed on Clery Act requirements? Do you know the name of the campus office that manages Clery Act compliance?
AGB has issued an Advisory Statement on Sexual Misconduct containing practical suggestions for boards and administrative leaders on the difficult and rapidly evolving subject of sexual assault on campuses. Have you read it? Do you understand the institution’s obligations under Title IX and related laws? If you are quizzed by an OCR investigator, will you pass with flying colors?