The Paradigm Shift In Campus Responses To Sexual Misconduct: From Compliance To Compassion

by Pepper Hamilton LLP
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Originally Published in Today’s Campus  – July/August 2013).

Over the past several years, there has been growing awareness, public discourse and, at times, unrest about how colleges and universities respond to sexual misconduct. One impetus for the ongoing national conversation is the April 4, 2011 Dear Colleague Letter, a call to action by the Department of Education’s Office for Civil Rights (OCR) that prompted many schools to review and revise policies related to sexual harassment and sexual violence. The national conversation gained momentum following the 2011 media blitz surrounding Jerry Sandusky and the subsequent criminal indictments of high ranking university administrators. The media attention and OCR’s spotlight on compliance through enforcement efforts gave students a platform to speak about their individual and collective experiences.

The courage of complainants who were willing to share their experiences publicly brought the conversation home for many campuses. Rather than focusing on the assailant, these first person accounts focused on how college administrators failed in responding to allegations of sexual misconduct. Using social media and the filing of federal complaints as a platform, these accounts have resonated with diverse constituents across campuses, including students, faculty, staff, parents and alumni. The social media platform has allowed virtual strangers to connect with one another and for individuals to self-select and prioritize news input.

The combined result of these factors has been a paradigm shift—changing the way institutions of higher education view institutional responsibility and accountability for issues of sexual misconduct on campus. In this new paradigm, colleges have been afforded an opportunity to raise the level of conversation and to implement practices that are not only compliant, but compassionate, coordinated and consistent.

The conversations on campuses—from board rooms to dorm rooms, coffee houses to dining halls—have changed focus, highlighting the experiences of those affected by sexual harassment and sexual violence rather than the institutional perspective or administrative responsibilities. As a result, scores of schools across the nation are taking a hard look at existing practices and considering how to best implement procedures that treat community members with compassion and care, that are rooted in an informed and educated perspective and that engender trust in the integrity of processes. The effect of this emerging national dialogue is a gradual erosion of the culture of silence that has shrouded sexual misconduct in the campus setting.

The key to an effective campus response is a coordinated and integrated approach. There is no one-size-fits all approach. Schools vary in their characteristics, including size, student body composition, institutional values, governance, public versus private status and culture. An effective institutional response must integrate the regulatory framework, the dynamics of sexual assault and other forms of misconduct and an  understanding of each institution’s unique culture, climate, policies, procedures, personnel and resources. The regulatory framework is informed by several federal and state laws. The federal legal guideposts for an effective institutional response include Title IX of the Education Amendments (1972) (Title IX) and the Jeanne Clery Campus Disclosure Act (Clery).

These federal statutes require schools to provide safe and discrimination-free campus environments by maintaining core values of equity, fundamental fairness, awareness, transparency, education and prevention. Together, these federal mandates are both sword and shield; when implemented properly, they can help to shape a holistic response to sexual misconduct.

While it is important to understand the legal framework, compliance with these federal mandates is only the beginning of an effective and integrated response. Integration requires that policies and procedures consider the unique dynamics of sexual harassment and sexual violence, which are different from any other form of misconduct. Cases involving sexual harassment or violence are complex, incendiary in nature and can have life-altering consequences for both complainants and respondents. There are tremendous societal barriers to reporting, often resulting in significant delays in reporting or underreporting of incidents. Those incidents that are reported require careful credibility evaluations based on neutral and impartial fact-gathering and assessment. Moreover, because the overlay of trauma can affect communication and emotional well-being, it is imperative that schools provide support and advocacy for complainants and respondents that are independent of the fair and impartial investigative and adjudicative processes.

Although there is no “best practice” approach, a coordinated and integrated institutional response is one that is both compliant with law and sensitive to the unique issues attendant to a case of sexual harassment or misconduct. Moreover, an effective institutional response must take into account the individual culture, history, resources, policies, procedures and personnel of each institution. While some mandatory guideposts exist, institutions have flexibility in designing grievance procedures, selecting investigative models and developing sexual harassment and misconduct policies to achieve fair and impartial processes and effective training and prevention programming.

The process of creating this response is far less complicated than it may seem. Even with limited resources, most schools have the capacity, competency and commitment to create effective institutional responses. Key members of the campus community should be called upon to form a Title IX response team that will form the institutional backbone of the centralized review, investigation and resolution of all sexual harassment and misconduct reports. Mapping out roles and responsibilities of team members and sequencing the institutional response can provide the initial framework for the drafting of internal operating protocols to effectively implement a coordinated and centralized institutional response.

Identifying core institutional values and incorporating an understanding of historical context, combined with expert-guided discussion, can provide a roadmap to help schools declutter the regulatory minefield, make discretionary judgment calls about implementation and draft clear and easily accessible policies.

By expanding the conversation about compliance to include care, schools can implement policies and procedures that provide consistent and principled institutional responses—responses that can foster a climate that encourages reporting, provides opportunities for education and prevention and allows campuses to embrace the tension and confront difficult issues directly with openness and transparency.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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