We are embroiled in debates about sexual assault: the definition of “consent,” the roles of campus and law enforcement authorities, how to support and be fair to victims and the accused. Perhaps higher education is being asked to solve a problem that requires broader and earlier solutions, but campuses will remain a focus for officials, the media, and advocacy groups. Talking about sexual assault is the new normal.
Institutions have been struggling with sexual assault (and related litigation) for decades. We have not always done it well; too many victims lacked support and some suffered retaliation; too many assaults went unpunished. A 2002 National Association of College and University Attorneys (NACUA) presentation on “The Sexual Assault Case and the Student Judiciary” now seems strikingly narrow: no mention of education, training, or even Title IX; nothing about campus climate; a brief reference to the Clery Act. This is not surprising; the Office of Civil Rights (OCR) guidance then mentioned sexual assault only in passing.
That began to change in 2008, when OCR directed colleges and universities to address criminal conduct, such as sexual assault, with other sexual harassment. Soon after, Pamela Bernard, Duke University vice president and general counsel, wrote in this column: “Affirmative obligations to carefully investigate and conduct robust training about student- on-student sexual harassment have increased. [They] should spur presidents and boards to carefully re-examine their policies and practices.”
Even those who followed Bernard’s good counsel were unprepared for OCR’s 2011 “Dear Colleague” letter (DCL). OCR initially claimed the DCL added no new mandates. That is hard to square with its dramatic transformation of expectations. The DCL demanded far-reaching changes to routine grievance and investigatory practices, required expanded training and services, and elevated the Title IX coordinator. We can debate the social, legal, and political factors that led to the DCL, but it was a watershed. Campuses have since modified procedures, enhanced resources, and hired staff to focus on sexual assault. Title IX coordinators and investigators now dominate NACUA’s lists of job openings for higher education attorneys. NACUA holds an annual two-day program on the topic.
More regulations and sub-regulatory guidance followed. Congress amended Clery to focus on sexual violence and added training, investigatory, disciplinary, and reporting requirements. OCR and the White House issued volumes of guidance, reinforcing and expanding upon the DCL. New Violence Against Women Act regulations were adopted and are now in full effect. Some states adopted overlapping laws.
In 2014, OCR listed 55 institutions under Title IX investigation; the total may now be 160. The only closures OCR has reported involve resolution agreements and findings that the institution violated Title IX, typically by failing “to respond in a prompt and equitable manner” to complaints or incidents. OCR investigators commonly seek broad categories of documents going back three years, often beginning before the DCL. Since few if any institutions were in full compliance with the DCL before it was issued, the odds of emerging from it unscathed now are low.
So what should governing boards expect? First, that appropriate leaders deliver education and training that are compliant and effective for the institution. Students need to know the new rules, resources, and sanctions. Faculty and staff need to know that ignoring or minimizing sexual misconduct is not an option.
Second, counsel and the Title IX coordinator should monitor rapidly changing regulations and ensure that policies and procedures are modified to meet them. Our practices of just five years ago do not satisfy current legal demands; our current policies should.
Third, even with additional resources and new policies, addressing sexual assault is a work in progress. Laws and norms will continue to evolve. Individuals may find a result unfair, and some public complaints are inevitable. We should aim for practices that we are comfortable defending, but our institutions will need to keep talking and correcting course.
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