Holding Colleges Responsible

If Andrea Pino hadn’t been drafted to help with the University of North Carolina at Chapel Hill's search for the employee who would handle Title IX complaints, the national landscape of sexual assault activism might not look so dramatically different than it did just a year ago.

After being raped at an off-campus party in March 2012, Pino felt let down by the people and policies that were supposed to protect her (an academic adviser told her she was lazy when her experience impacted her performance in the classroom; other students told her reporting the rape wouldn't do any good; her resident assistant wasn't supportive). At first, she didn’t think she had any recourse. That is, until her work on the Title IX Coordinator search committee the following summer led her to discover serious lapses in UNC’s sexual assault policy – no base punishment for perpetrators, no definition of consent, no method of tracking trends – that she was told couldn’t be addressed because the newly revised (but not publicized) policy was “official.” (UNC has since hired a Title IX coordinator, and is reviewing its sexual assault policies.)

But it wasn’t the problems at UNC that led Pino to help write the federal complaint that was largely responsible for pushing a nationwide watershed moment for sexual assault on college campuses into the national spotlight. It was the subsequent realization that the situation at UNC was far from unique.

“I realized the UNC complaint is so much bigger than UNC,” Pino said. “It’s something that has been happening for years.”

The federal complaint that Pino and others filed against UNC, and their subsequent collaboration with victims nationwide, sparked an unprecedented wave of student activism and federal complaints at campuses including Amherst, Swarthmore, Dartmouth and Occidental Colleges and the University of Southern California.

The movement has more students speaking out and calling for colleges to do more to help students who have been assaulted. And combined with a stronger stance by the U.S. Education Department’s Office for Civil Rights, administrators are getting a clear message that times have changed and the status quo may no longer be acceptable.

'Emboldened Students'

"I think all of the attention that has been brought to this subject over the last two years has created much more awareness, and perhaps emboldened students who otherwise would have felt more isolated in coming forward," said Ada Meloy, general counsel of the American Council on Education. "I think there's no question that this topic is one that is not going away and is garnering a lot of attention, which is not the kind of attention that colleges wish to have."

While students are largely responsible for pushing this issue into the public consciousness, it was OCR that sternly reminded colleges there would be consequences for not complying with Title IX of the Education Amendments of 1972, which prohibits discrimination in schools and colleges on the basis of sex. When OCR announced it would be cracking down on colleges that didn't fulfill their obligations under Title IX, which includes requirements for policies and procedures in sexual assault cases, it was simultaneously beginning an investigation of Yale University. In that case that garnered national attention, students filed a federal complaint alleging that Yale failed to eliminate a hostile campus environment after fraternity members chanted "No means yes, yes means anal" outside a campus women's center.

As Pino was forming the idea to file the complaint against UNC, she talked to students at Yale as well as Amherst, where a column in the campus newspaper by a woman who had been raped and then re-victimized by administrative failings sparked outrage and protest on campus.

“It was really about seeing the same problems happening at all these different schools…. Learning about their stories and seeing how their experiences so closely mirrored mine,” Pino said, adding that the consistency of victim-blaming – students who come forward being made out as “crazy” – was especially striking. Before Pino and another UNC student, Annie Clark, thought to connect cases that were unfolding at different universities, Pino said, “It was always an individual case. That’s what kept this from becoming a movement.”

Students from Occidental and Swarthmore contacted Pino and Clark after their UNC complaint got national media coverage. The two women became informal consultants for students who wanted to file complaints but didn't know how. They helped create Know Your IX, an informational website for many students whose universities don't advertise their policies or obligations under Title IX (despite that being required by the amendment).

"I think this is a first wave of complaints as students are becoming more informed about their rights under Title IX and the Clery Act, and they're organizing," said Michelle Issadore, president of SCOPE: School and College Organization for Prevention Educators. "We're seeing it nationwide, and they're realizing they have the option to make complaints to OCR and the power behind that."

Signs of Resistance

But as the proliferation of student complaints continues to grow -- which it will, said David A. Armstrong, vice-president of development and general counsel at Notre Dame College of Ohio -- some administrators are getting increasingly frustrated that the Education Department is overstepping its bounds.

"I think you're going to start to see, eventually, some pushback," Armstrong said.

OCR's insistence that colleges require a lower standard of evidence in adjudicating cases than "beyond a reasonable doubt," which some institutions had used previously, is one particularly controversial decree. OCR mandates a "more likely than not" standard -- in other words, a panel need only be 50.1 percent sure a crime was committed in order to punish a perpetrator. Another point of contention is OCR's saying a college can take action against an alleged perpetrator before hearing his side of the story.

But, Armstrong acknowledged, colleges don't have a lot of leeway when it comes to resisting OCR's orders.

"Every complaint is so important for those people," he said. "But as higher education continues on, it's all about accountability, and with this issue, the colleges are certainly going to be afraid to defend themselves or contend otherwise or argue the law when they know the federal government does have the ability to pull their aid."

One case that continues to unfold is last month's settlement agreement with the University of Montana, which OCR called a "blueprint" for colleges nationwide. The settlement, the Foundation for Individual Rights in Education found in original research, requires the institution to take more than three dozen actions to comply with Title IX, including conducting annual campus climate surveys and ensuring any information about sex-based harassment is reported to the Title IX coordinator within 24 hours, regardless of whether a complaint has been filed.

Civil liberties advocates that were also heavily critical of OCR's position on the standard of evidence have waged war on the Montana settlement, with FIRE leading the way. That group and others, including the American Association of University Professors, have said OCR's stance threatens the due process rights of alleged perpetrators.

At issue in the Montana case is OCR's declaration that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature,' " including "verbal conduct." OCR also faults Montana's previous sexual harassment policy for requiring conduct to be "objectively offensive" in order to constitute sexual harassment. FIRE interpreted the letter as a mandatory "speech code" for colleges nationwide, potentially threatening students' First Amendment rights by regulating speech on campus.

"The blueprint requires public universities to choose between the newly mandated definition of sexual harassment and upholding students' First Amendment rights," Samantha Harris, an attorney and director of speech code research at FIRE, wrote in an unpublished op-ed. "If universities want to remain able to fulfill their core missions, it is time for administrators to begin pushing back against the ever-increasing demands of the Education Department. No one disputes the importance of preventing sex discrimination on campus, but doing so need not consume so many resources that it interferes with universities’ ability to carry out their core educational functions, nor can it require universities to violate their students’ First Amendment rights."

A Question of Application

OCR responded in a letter in late May, arguing that its rules "do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment."

"In preventing and redressing discrimination, schools must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including the First Amendment," OCR wrote.

Prevention and risk management officials said that while OCR called the Montana letter a "blueprint" for all colleges, individual settlement agreements are binding only for the institution in question. However, they also say other colleges would be well-advised to take them into account when reviewing or revising their own policies.

"A lot of those letters tend to be talismans to help us understand how OCR interprets the law, and they say it's specific to that institution, and it's true, but you can see a general set of principles and approaches in those letters that are transferrable to many institutions," said Daniel Swinton, senior executive vice president of the National Center for Higher Education Risk Management. "We look to those as more informal guidance."

Issadore called OCR's dear colleague letter the wake-up call and the students' response the mobilization.

"It should be coming top-down and bottom-up; that's how we create lasting change," she said. "I think this is a flashpoint.... This is part of the cycle of making progress."