The Federal Government’s campaign to combat sexual assault on college campuses took a significant step forward on April 29, 2014, with the simultaneous release of a White House task force report setting forth a multi-pronged approach to address sexual violence, and of detailed question-and-answer guidance by the Department of Education to assist schools with their compliance with Title IX. There is a lot to digest in these new guidance documents – here are some key takeaways.
1. Big picture: Addressing sexual assault on campus is a major enforcement priority of the federal government.
In January, the White House Council on Women and Girls and the Office of the Vice President announced the establishment of a “White House Task Force to Protect Students from Sexual Assault,” which released its first report, “Not Alone,” on April 29. This recent activity punctuates the priority that the Obama Administration has placed on combatting sexual assault, as reflected by detailed guidance on the requirements of Title IX issued by the Department of Education’s Office of Civil Rights (“OCR”) in April 2011, and by the public identification by the Department recently of 55 schools currently under investigation for alleged violations of Title IX. Additionally, in April 2013, President Obama signed the reauthorization of the Violence Against Women Act, part of which was the “Campus SaVE Act,” which clarifies and expands schools’ responsibilities under the Clery Act for reporting and responding to allegations of sexual misconduct. New regulations under SaVE were recently negotiated and likely will be implemented later this year.
Congress also is becoming increasingly active in the area of sexual assault. Last month, Senator Claire McCaskill (D-Mo.) sent out a survey to 350 colleges and universities asking how they handle sexual assault allegations, and we can expect legislation to be introduced in the near future by Senators McCaskill and Kirsten Gillibrand (D-N.Y.) that likely will enhance OCR’s enforcement authority. Senators McCaskill and Gillibrand also have called for increased funding for OCR and the Department’s Office of Federal Student Aid, which enforces the Clery Act.
This much energy—particularly when driven by the precious resource of the White House’s active—virtually guarantees that more resources will be devoted to enforcing Title IX and the Clery Act, and that schools under investigation will be held accountable for areas of noncompliance with tougher resolution agreements and possible sanctions. Whereas institutions have been able to count on what amounts to a second chance to comply with Title IX through voluntary resolution agreements with OCR, those agreements may be more difficult to negotiate going forward, with an enhanced threat of administrative action or litigation with the Department of Justice looming if complaints are not resolved. Indicative of this prediction, the Task Force report notes that the Department of Education has changed its internal procedures to impose a 90-day limit to conclude negotiations for a voluntary resolution to correct areas of noncompliance found during Title IX investigations, after which the matter will advance towards enforcement action. Notably, the Departments of Education and Justice have signed a Memorandum of Understanding addressing “the collaborative interagency effort to vigorously enforce Title IX,” by clarifying their respective roles and jurisdiction and enhancing coordination in “all matters related to Title IX enforcement.”
Not to be overlooked, an increasingly energized and well-coordinated advocacy community also will continue to pressure schools and the government to provide effective responses to sexual violence complaints.
2. How the complainant is treated, particularly in his or her first encounter with school officials, is becoming increasingly important.
The White House Task Force report and the Department of Education’s “Q&A Guidance.” on Title IX both make clear how important it is to treat a complainant with appropriate sensitivity throughout the process of dealing with her complaint, but especially at the time he or she makes the initial report. It is particularly important to advise a complainant of (1) her rights under Title IX, (2) her right to file a criminal complaint, and (3) available resources to help the complainant deal with the trauma of the situation. A school also should offer the complainant interim accommodations (such as changes in housing or class schedules) to protect her while the investigation of her complaint proceeds. (The Department’s Q&A Guidance refers to “interim measures” 35 times.) Additionally, although a proper investigation—and all complaints of sexual violence must be investigated to the extent possible, consistent with the complainant’s wishes as to confidentiality—requires an assessment of the credibility of the complainant in the context of all available evidence, schools should be very careful in how they question the complainant. The school official receiving the complaint—who should receive training about how victims respond to sexual assault—must not be dismissive of the allegations, discourage the complainant from pursuing a criminal or disciplinary complaint, or ask judgmental or insensitive questions such as what the complainant was wearing or about her sexual history with anyone other than the accused. This may seem like common sense, but a recent headline on one newspaper’s Web site recently quoted a sexual assault law enforcement investigator as saying to the alleged victim, “You can’t have been raped; you were wearing SPANX.”
3. Schools should increase their efforts to prevent sexual assault.
One of the main principles emphasized by the White House Task Force is sexual assault prevention, and it released a preview of a forthcoming study by the Centers for Disease Control on preventing sexual assault on campus and also a Public Service Announcement featuring President Obama, Vice President Biden, Steve Carrell, Daniel Craig and others, to raise awareness of this element of its strategy. In addition to reinforced education programs encouraging students to take care of themselves and others, and the deterrent effect of schools taking strong disciplinary action when complaints are substantiated, the Task Force emphasizes the importance of engaging men in advocacy and prevention efforts, and further, the benefits of “bystander intervention,” i.e., educating and encouraging students to recognize a perilous situation (such as another student passed out at a party) and intervene before any harm results. Institutions should consider engaging fraternity leaders, and male coaches and student-athletes who have influence on campus, in sexual assault education and prevention activities.
4. Schools need to clarify and disseminate who has responsibilities to report sexual assault.
Title IX imposes on certain “responsible employees” (according to OCR guidance from 2001) a duty to report incidents of sexual assault about which they become aware, and whose awareness of an incident in turn puts the school “on notice” and triggers its obligation to respond. “Responsible employees” includes any employee with the authority to take action to redress sexual violence, who has been given the responsibility to report incidents of sexual violence or any other misconduct to the Title IX coordinator or other appropriate school officials, or whom a student reasonably believes has this authority or duty. A school is required to identify who it designates as “responsible employees” to all students and employees, and to inform those staff members so designated of their reporting obligations, but the question of who might have apparent authority to redress or to report sexual violence makes this a less-than-straightforward exercise. For example, the Department’s Q&A Guidance observes that Resident Advisers (“RAs”) may or may not be “responsible employees,” depending upon their responsibilities at their particular schools. However, the Clery Act includes RAs as “Campus Security Authorities” who have an obligation to report sexual assaults, thus making them (according to OCR’s criteria) “responsible employees.” This type of circularity in the interplay between Title IX and the Clery Act obviously can create confusion as to which employees should be included in the school’s list of mandatory reporters.
One way to reconcile these two distinct and not necessarily overlapping groups of school employees is to consider all “Campus Security Authorities,” as defined by the Clery Act and mandated by that statute to report incidents of sexual assault (subject to limited exceptions for licensed counselors), also to be “responsible employees” for purposes of Title IX. Thus, the campus community would have only one list of mandatory reporters to identify and train for purposes of receiving and reporting complaints about sexual violence.
Clarity is the most important element – mandatory reporters should be clearly and widely identified to students and employees and trained on their reporting obligations, including the limits of confidentiality that most of them can offer to a student reporting an incident of sexual violence.
5. Confidentiality remains a potential Title IX and Clery Act landmine.
Colleges and universities have struggled to balance a complainant’s desire to maintain his or her confidentiality against their responsibility under Title IX to investigate all complaints of sexual violence, as well as their Clery Act reporting obligations. The Task Force and Department of Education’s Q&A Guidance provide some additional clarification, but the competing demands remain somewhat muddled.
The new guidance suggests a strong preference for honoring a complainant’s request for confidentiality but reinforces a school’s obligation to investigate the complaint nevertheless. The Department recognizes that the school must make a judgment call as to whether honoring the request for confidentiality puts the campus community or the complainant at risk, but the fact remains that honoring the complainant’s request will, in most cases, result in a less-than-thorough investigation of that particular complaint, and the complainant must be so advised. The Department presents criteria for an institution to assess the larger threat reflected by the alleged incident, including whether there is a pattern (i.e., drugging or getting a victim drunk), the use of a weapon in the alleged incident and whether other complaints having been made against the accused. Note also that in a report accompanying the announcement of the Task Force in January 2014, the White House cited a study finding that 63 percent of college men who admitted to committing rape or attempted rape admitted to committing multiple offenses, averaging six rapes each. This research suggests that the possibility of repeat offenses should be considered in evaluating a complainant’s request for confidentiality even in the absence of additional complaints against the accused.
Honoring a complainant’s request for confidentiality at some level reflects the unenviable task of predicting the future, and it thus is critical that a school consider these factors and document its rationale for determining not to investigate the present complaint fully (if that is the consequence of honoring the confidentiality request) so it can justify its decision if another incident by the same alleged perpetrator were to occur. Conversely, a school should explain to a complainant its decision to override her request to remain anonymous and not have the complaint investigated, and to reassure her that it will take steps to protect her and will react very harshly to any acts of retaliation against her.
There also is lingering uncertainty about to whom confidential reports of sexual violence can be made. It seems clear that licensed counselors (psychologists, pastoral counselors, social workers, etc.) can maintain complete confidentiality about an incident reported to them in the course of counseling a student. This professional standard of confidentiality is recognized by OCR and is consistent with the reporting provisions of the Clery Act. It is with other, nonprofessional counselors and victim advocates that the reporting obligations can be confusing. OCR, in the Department’s Q&A Guidance, states that it interprets Title IX to “give schools latitude not to require these individuals to report incidents of sexual violence in a way that identifies the student without the student’s consent.” The Clery Act, however, requires nonprofessional counselors who are “Campus Security Authorities” to report incidents of sexual violence of which they become aware, so the “latitude” under Title IX may have little practical effect. Moreover, the Department suggests that “responsible employees” should advise a student before she even gets her complaint out that if that student is reporting a sexual assault, the employee must report it and if she wants to make such a report confidentially, she must go to the counseling center or to someone else who may receive reports confidentially. This is easier said than done when, for example, a Resident Advisor is trying to assist a traumatized and emotional 18-year-old at 3:00 in the morning, but underscores the need to an effective training program for responsible employees to handle such situations.
From an institutional standpoint, it seems most important that a school identify and widely publicize to students, faculty and employees to whom on campus a student can report a sexual assault confidentially. A school also should publicize under what circumstances it may not be able to honor a complainant’s request for confidentiality, most notably, when the alleged perpetrator poses a threat to other students on campus. Having this information widely disseminated will help manage students’ and employees’ expectations about confidentiality of complaints of sexual misconduct.
6. Training employees on their responsibilities for handling sexual assault complaints is critical.
The need to train employees on their Title IX obligations is not new, but when an agency releases guidance with this level of detail, the expectations for compliance go up. Having a well-trained Title IX coordinator and well-trained “responsible employees” is expressly emphasized in both the Task Force report and the Department’s Q&A Guidance, which recommend “specialized training” on a “regular basis.” Care must be taken to inform employees of their particular responsibilities in a manner that is consistent with the overall Title IX policies of the school. Whether or not they have direct reporting obligations under Title IX or the Clery Act, virtually any school employee who regularly interacts with students could be the person to whom a student feels most comfortable reporting an incident of sexual violence. At a minimum, therefore, all employees should be given basic information about where to refer a student reporting such an incident. The goal is for no school employee to answer the question “what would you do if a sexual assault is reported to you?” with “I don’t know.”
7. Handling sexual assault complaints within a school’s disciplinary system soon may not be adequate.
The Task Force report signaled that new standards may be forthcoming to govern the investigation, hearing and resolution of sexual violence complaints. The report noted that some schools have been experimenting and having positive results with a “single investigator” model, where a trained investigator gathers and evaluates all of the evidence, makes a determination as to whether a sexual assault occurred, recommends a sanction and perhaps even negotiates a resolution with the perpetrator. This model obviously stands in contrast to the more traditional disciplinary process, which often is not oriented toward the criminal or quasi-criminal context of sexual assault investigations. The Department of Justice will begin assessing models for investigating and adjudicating campus sexual assault cases by October 2014.
In the meantime, schools should take heed of the primary messages from the Department of Education in its Q&A Guidance, consistent with the overarching requirement to respond to complaints of sexual violence in a prompt and equitable manner: (1) treat both accuser and accused equally in all phases of the adjudicatory process; (2) keep the accuser informed about the progress of the investigation and adjudication of his or her complaint; (3) offer interim remedies to the complainant if necessary as the matter proceeds; and (4) apply a preponderance of the evidence standard to the adjudication of a complaint.
8. More guidance is on the way.
The online version of the Task Force’s “Not Alone” report contains useful links to additional guidance documents, such as a toolkit for developing and conducting a climate survey, a model reporting and confidentiality protocol, a basic factsheet on bystander intervention, and a checklist for a sexual misconduct policy. In addition, the Task Force promises to release a sample Memorandum of Understanding between schools and local law enforcement that recognizes their respective obligations by June 2014, additional samples of promising policy language in other key areas in September 2014, and trauma-informed training materials for campus health center staff by December 2014. Finally, the NotAlone.gov Web site contains extensive resource information, and OCR is posting its resolution agreements and letters on its Web site. These agreements contain helpful information on OCR’s assessment of what constitutes acceptable Title IX policies and procedures, and in some cases, best practices.
 Although the female pronoun is most often used in this discussion, the Department’s Q&A Guidance makes clear that all students are covered by Title IX’s protections from sexual violence.