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Tougher Line on Sexual Harassment

December 10, 2010

Two Midwestern colleges will have to dramatically rework their policies and procedures regarding sexual harassment, under agreements that ended U.S. Education Department inquiries into their compliance with Title IX of the Education Amendments of 1972. The agreements by Eastern Michigan University and Notre Dame College in Ohio could have a broad impact, as other institutions are likely to take notice.

The investigations were part of what some perceive as a crackdown of sorts on Title IX compliance by the U.S. Department of Education’s Office for Civil Rights. Though the office has investigated other institutions, these two cases – which ended early when the colleges signed voluntary resolution agreements – require particularly extensive action on the part of the colleges.

Ada Meloy, general counsel for the American Council on Education, said resolution letters documenting the investigations and their outcomes are more complex than she’s seen in the past. “I have heard recently that OCR is quite vigorously pursuing issues related to Title IX and sexual harassment or sexual assault,” she said. “These two that are reported certainly support that idea as they are very detailed…. [The resolution letters] do indicate how seriously OCR is taking matters at this time.”

The investigation settlements were noted today by the Center for Public Integrity, which suggested that the results reflected a shift in OCR policy. OCR declined to comment for this story.

The resolutions require the two colleges to take many of the same actions: revise and publish Title IX sexual harassment grievance procedures; designate Title IX coordinators to investigate complaints, and train them and other administrators on how to do so; train other groups who interact regularly with students, like resident assistants and coaches, on Title IX; and create campus focus groups or committees to ensure students understand their rights under Title IX. Both colleges also must take additional, individual measures.

The colleges in question had both previously been investigated under the Clery Act, which requires them to track and disclose crime statistics and procedures to students and employees. “I think that colleges that are facing serious issues in either the Clery Act or sexual assault-type cases would be well-advised to review these two letters and recognize that they may face similar scrutiny by OCR,” Meloy said.

Generally, colleges do look to one another for procedural guidance, said Ariela Migdal, an attorney at the ACLU Women’s Rights Project. “Every resolution of a Title IX investigation or lawsuit does have an impact beyond that particular school,” she said. “We believe that campuses and school administrators and attorneys at campuses really pay attention and look at what other schools are being held accountable for.”

Catherine Hill, research director of the American Association of University Women, who co-authored a 2006 study on sexual harassment on campus, said colleges look to one another when developing or modifying their own policies. “A lot of them are very, very similar,” she said. “There’s no official designation of, ‘Here is a policy that really should be the standard.’ ” As a result, she said, some colleges don’t put as much thought into the policies as is necessary.

Both investigations began in December 2008 and grew out of Title IX compliance reviews. Colleges can violate that law, which prohibits among other things sexual harassment that keeps students from participating in educational programs on the basis of sex, when they fail to address sexual assault or harassment in a variety of ways. Those violations can include not providing easily accessible instructions for students who want to report incidents; not responding to complaints of sexual harassment by following published institutional procedure; not adopting and publishing prompt grievance response procedures; or neglecting to disseminate information about reported cases of abuse, as Eastern Michigan did.

The incident at the center of OCR’s investigation into Eastern Michigan occurred in 2006, when Laura Dickinson was raped and murdered by a male student who sneaked into her dorm room. For 10 weeks, administrators stood by their statement that no foul play was suspected, and only acknowledged the murder when the suspect was arrested. (The attempted cover-up and subsequent widespread media coverage culminated in the firing of the university's president.) In 2008, the Department of Education fined Eastern Michigan for violating the Clery Act by not informing faculty and students of the murder.

The investigation determined Eastern Michigan was out of compliance with Title IX in a number of ways. The university did not mention Title IX in its notice of nondiscrimination; did not have "prompt and equitable" grievance procedures; and, in its sexual harassment policy, did not provide contacts or procedures for filing complaints.

Notre Dame’s investigation was prompted not by one explosive incident, but by a series of sexual assaults on campus. During the 2005-6 year, there were six reported assaults. In spring 2007, the Department of Education began investigating a potential violation of the Clery Act. OCR’s investigation into Notre Dame, which began Dec. 22, 2008, focused on the college’s policies, procedures and practices in addressing reports of sexual harassment. It found numerous Title IX violations, including inconsistent procedures to address sexual harassment, failure to consistently identify the person charged with coordinating compliance with Title IX, and failure to address some complaints.

The AAUW report found that most students don’t know Title IX gives them the right to take their harassment grievances to the federal government when colleges don’t respond. That report identified many of the same problems addressed by the OCR investigations. It found that while nearly two-thirds of college students experience sexual harassment, less than 10 percent of them tell a college employee, and even fewer officially report it to a Title IX officer.

Often, Hill said, students don’t know how to proceed after they’ve been harassed. “Students are not aware of whom to speak to about sexual harassment issues and sexual assault issues, and few are aware of who their Title IX representative is on campus,” she said. Policies and procedures may be published somewhere but may not be easily accessible – as was the case at Notre Dame. “You have to look long and hard, so making those tools more easily accessible for students is something that students indicated that they really wanted as well.”

But for some students, the government has stepped in where the college didn’t. In February 2008, a federal court held Arizona State University responsible under Title IX when one student was raped by a student football player whom ASU had previously expelled for multiple sexual harassment incidents. The university agreed to appoint someone to modify policies on harassment reporting and investigation, and it paid the plaintiff $850,000 when the lawsuit settled.

Two years before that, the University of Colorado at Boulder had to pay $2.5 million in damages, hire a new victims assistance counselor and appoint an independent Title IX adviser when a federal court determined the institution acted with “deliberate indifference” regarding two female students who were sexually assaulted by Colorado football players and recruits.

“Whenever a school is required to report or settle, that’s a big deal because the other schools look at it and they see what has happened in this lawsuit,” Migdal said. “The hope would be you don’t need a lawsuit or a government investigation to get your school to implement a successful policy.”

 

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