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Standoff on Sexual Assaults

April 29, 2014

WASHINGTON -- As the White House unveiled its latest efforts to combat sexual assault on college campuses, the U.S. Department of Education said Monday that Tufts University has not complied with federal law in handling sexual assault and harassment complaints on its campus.

The department’s Office for Civil Rights, which has been investigating the university since a student filed a complaint in 2010, said that it had found the university to be in violation of Title IX of the Education Amendments of 1972, the federal law barring sex discrimination at educational institutions.

Tufts signed an agreement on April 17 to remedy the compliance issues, promising to make dozens of changes to how it addresses sexual assaults on campus. But the university then “revoked” its signature from the agreement on April 26, Tufts officials said, after they were told by the federal office last week that their current policies -- not just their past handling of complaints -- were violating Title IX.

The reversal sets off an unusual dispute between an institution and the federal regulators charged with enforcing Title IX. Federal officials warned on Monday that they may seek to terminate the university’s federal funding because it breached the agreement.

The disagreement also comes as campus sexual assault is increasingly attracting attention from federal policy makers. The Obama administration is set to announce at a White House event Tuesday a range of new tools for colleges to combat sexual assault on their campuses, including a 52-point document further clarifying colleges’ obligations under Title IX.

In addition, the administration is releasing a compliance checklist for colleges and model policy language for colleges to use. The efforts are aimed at providing some of the additional clarification that colleges have been seeking since the administration issued its key guidance on Title IX and sexual assault in 2011.

The administration is also recommending that institutions conduct anonymous surveys to gauge the “climate” on campus for victims of sexual assault. The surveys are currently voluntary, but senior administration officials said Monday that they would eventually seek legislative or regulatory changes to make them mandatory by 2016.

The White House is also launching a new web portal -- NotAlone.gov -- that will provide greater information about Title IX investigations, including a list of which colleges are currently subject to federal Title IX inquiries. 

The number of those investigations has increased in recent months.

Just in the past several weeks, the Education Department has confirmed that it has launched investigations at Columbia and Harvard Universities. Some advocates for survivors of sexual assaults have criticized the Education Department’s enforcement of Title IX and the Clery Act, which also governs campus policies on sexual assault, as insufficient.

Colleges and universities, meanwhile, have said they are often confused and frustrated by what they view as unclear guidance for how to comply with federal requirements dealing with sexual assault cases.

Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education, said the Tufts case illustrates a growing concern among colleges about how the Education Department enforces such regulations.

“Many universities that have found themselves in a conflict with OCR believe that this agency does not act in good faith and that it’s little more than a bully with enforcement powers,” Hartle said.

Hartle also questioned the timing of the Tufts announcement, which came a day before the administration was set to unveil the results of its Task Force to Protect Students From Sexual Assault..

“I don’t think it’s an accident that OCR decided to take a strong position with Tufts, given that the report is coming out tomorrow,” he said. “They were looking to make an example of someone and Tufts just happened to come along at the wrong time.”

Tufts’s Scuffle With OCR

The civil rights office first launched a Title IX investigation at Tufts after a student filed a complaint in September 2010, alleging that the university failed to properly investigate and respond to her report that she was sexually assaulted by another student.

“We acknowledge that more could have been done to address the student complainant’s concerns at that time,” the university said in a statement on Monday. “We have since taken steps to remedy that situation.”

Many of those steps, including the formation of a campus-wide task force on sexual assault, were included as part of the voluntary resolution agreement that Tufts officials negotiated with regional OCR officials between January and April of this year.

Federal officials are required by law to seek out “voluntary resolution agreements” to address Title IX compliance issues. The Education Department most recently struck such accords with the State University of New York System and the University of Montana after finding Title IX problems at those institutions.

But Tufts’s decision to withdraw from the resolution agreement is unusual.

“To our knowledge, this is the first time an educational institution has entered into a resolution agreement to remedy a violation and, within a few days, informed OCR that it was revoking the agreement,” an Education Department spokeswoman, Dorie Nolt, said in an email.

The agreement Tufts signed on April 17 committed the university to a long list of steps to resolve the compliance concerns that OCR identified in its investigation into the 2010 incident. The text of the agreement notes that it “does not constitute an admission by the University that it is not in compliance with Title IX.”

Several days later, on April 22, Mary Jeka, the university’s senior vice president and general counsel, received a phone call from a senior counsel at the Boston OCR office telling her that the agency's main office in Washington had instructed officials in the Boston office to add an additional finding to its final report, Jeka said. The official told her, she said, that the OCR would be concluding that Tufts's current policies ran afoul of the law as well as its previous actions.

Jeka said that she was shocked to hear that new finding, because OCR officials had not raised it when they verbally outlined their findings to the university.

“That was not acceptable to us,” Jeka said in an interview. “We felt that was not right. We have met and exceeded many the requirements of Title IX, and we take our obligations under federal law very seriously.”

In a statement, the university said it “regretfully” withdrew from the resolution agreement on April 26 because “we could not, in good faith, allow our community to believe that we were not in compliance with such an important law.”

Jeka said that the university will move forward with many of the new policies and procedures it has implemented to combat sexual assault on its campus.

“We will then sit down with OCR to see how we can come to some sort of resolution,” she said.

OCR officials, similarly, said on Monday that they stood ready to work with the university to bring it into compliance. But they also warned that Tufts’s decision to “revoke” its signature from the voluntary resolution agreement leaves the university at risk of being cut off from federal funds if the university does not come into compliance within 60 days.

The OCR said that it considers Tufts’s withdrawal from the agreement to be a breach of the agreement and noted that it “may move to initiate proceedings to terminate federal funding of Tufts or to enforce the agreement.”

 

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