Deadlines for Campus Justice

In January, officials at Duke University cut from two years to one the statute of limitations for students filing a complaint alleging sexual harassment and assault. The reason: the U.S. Education Department’s Office for Civil Rights renewed push on colleges to ensure their policies align with federal expectations.

This week, after facing months of criticism from student groups and others, those same officials announced they had completely eliminated the statute. The reason: they’d misinterpreted OCR’s guidelines.

The change in itself is not shocking, as not having a statute of limitations for filing complaints is the norm for most institutions, experts say. But it is indicative of the trouble some colleges might be having as they continue to parse through OCR’s 19-page, April 2011 “dear colleague” letter.

Even a year and a half since OCR sent colleges the letter, shifting some standards and reiterating institutional obligations to “swiftly and appropriately” address sexual harassment under Title IX of the Education Amendments of 1972, institutions are “still struggling” to interpret the letter and apply its many provisions, said Ada Meloy, general counsel for the American Council on Education.

“It is still on the agenda of virtually every higher education legal conference or meeting that occurs,” Meloy said of the letter.

The letter itself – and the comments of Assistant Secretary for Civil Rights Russlynn Ali when announcing it – spoke to the confusion of many college officials regarding what exactly they’re required to do to address sexual harassment under Title IX. For instance, before the letter clarified the issue, many institutions thought they should be operating under the “preponderance of evidence” standard rather than the higher standard used in prosecution of criminal cases. For college judicial boards, an allegation must only be “more likely than not” to have occurred in order to issue punishment.

While Duke did initially reduce the statute to one year to adhere to what it perceived as OCR’s rules, the letter itself was not the impetus. OCR was already on Duke’s campus to investigate a confidential incident, and while that case turned out to have no basis, Vice President for Student Affairs Larry Moneta said, the university did end up making a number of policy changes.

“The dear colleague letter came out, and that, for all of us, obviously stimulated one sort of immediate set of reforms and issues, and many campuses had specific contacts with OCR,” Moneta said. "Ironically, the allegation that they were reviewing had little merit, so that was not really a focus. But once OCR is on your campus, they go through the whole nine yards of reviewing every document.”

Most subsequent changes were “small adjustments” – tweaking language to mention Title IX and the like – and the policies were already largely consistent with OCR requirements, Moneta said. But Duke officials did read one guideline – that adjudicatory standards be the same for students as for faculty and staff – to mean the statutes could not differ between the two groups. So, because it was easier than doing the opposite, Moneta shaved 12 months off the student statute so it matched the employee statute of one year.

Outcry and protest followed, from students who worried the policy would keep victims from speaking out. Although students bring forth only “a handful” of cases, and about 96 percent do so within a year of the alleged incident, Moneta took the students’ concerns seriously, he said, and decided to re-confer with OCR to make sure their interpretation was correct.

“They basically said, that’s not an area that we are concerned about,” Moneta said.

But instead of reverting to the two-year statute, Moneta decided to get rid of it entirely. (Though the window to file a complaint does close for good once the alleged perpetrator graduates.) The line of thinking was the same as it was with the initial change – so few cases are brought forth after the one-year mark, the extent to which it would affect proceedings would be “not at all.”)

“Having said that, tomorrow the one case from four years ago will come in and we’ll be struggling to find people to interview,” Moneta said. “We’ll do our best.”

Regardless of how infrequent those cases may be, when they do come up, they’ll be difficult to address, said Robert Shibley, senior vice president of the Foundation for Individual Rights in Education.

“When it comes to an accusation, 3 ½ years is a long time to remember something,” Shibley said. “While they might not want to require people to come forward soon after it happens, they ought to encourage it, because that’s the only way that these cases are going to be fairly decided for both parties.”

FIRE has taken issue with the dear colleague letter – in particular, OCR’s lowering the standard of evidence and the potential for wrongful punishment when campus judicial boards must be only 51 percent certain that an assault took place. While the situation at Duke is a “pretty good indicator of the sort of confusion that this OCR letter has wrought on campuses across the country,” Shibley said, the elimination of the statute in itself is not necessarily a bad thing for due process.

“The thing to remember is that a reason to have a statute of limitations is to make sure the recollection of witnesses and whatever evidence is necessary to fairly adjudicate the incident are still available,” Shibley said.

“Overall, we would say it’s just one of the factors that weighs into due process, and when you lower the standard of evidence as OCR has done here, you take one of the legs off the stool of due process. The statute of limitations is another leg,” Shibley said. “In combination, it might end up being a problem, but in itself, the statute of limitations is not really a concern for due process in this case.”

The shift puts Duke more in line with most colleges, said Chris Loschiavo, assistant dean of students and director of student conduct and conflict resolution at the University of Florida. While it’s common (and required by OCR) for colleges to have a limited time frame in which staff must act on or respond to a complaint, a statute prohibiting students from filing a complaint is less so.

“So many victims don’t feel comfortable right away in reporting it to anybody; they don’t want to deal with the embarrassment. There’s lots of individuals that think the conduct process is going to be just like the criminal justice process,” said Loschiavo, who is also president-elect of the Association for Student Conduct Administration. But just because a victim feels the need to wait months or even years before reporting an incident, that doesn’t mean it stopped affecting him or her. “Ultimately what the university has an obligation to do is provide an environment conducive to learning, so that he or she can still do what they need to as a student.”

OCR promised it would continue to clarify its revised guidelines as necessary, but for some, it’s a touchy subject.

“It would really kind of depend on what the guidance is – whether the guidance recognizes the complexity of the kinds of problems that institutions face and recognizes the wide dichotomy of resources and the campus situations of different institutions,” Meloy said. “One of the main concerns is that not all colleges and universities are alike by any stretch of the imagination, and to try to put them all in the same frame can be very difficult.”

Duke is not the first university to raise its statute of limitations since the letter surfaced. In May 2011, the letter prompted the University of Oklahoma, which was already considering extending its statute, to raise the time that students have to file a complaint from 30 days to a year after the alleged incident.

More institutions appear to be moving in this direction, Meloy said.

“I think there’s a growing view that having a short time frame during which complaints will be considered is perhaps counterproductive to addressing the underlying problems,” she said. “Even though the initial view, certainly in the legal community, might be the faster you come forward, the better, I think there’s more flexibility being put into institutional policies.”