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OCR: Colleges Can Use Mediation for Sex Assault

September 29, 2017
 
 

In a phone briefing with college lawyers Thursday, Acting Assistant Secretary for Civil Rights Candice Jackson said that colleges can use informal resolutions such as mediation to resolve Title IX complaints -- even those involving sexual assaults.

Jackson made the remarks on a call with members of the National Association of College and University Attorneys that was arranged to answer questions about a new guidance document on institutions' Title IX obligations. The department issued the seven-page Q&A document after rescinding 2011 and 2014 guidance from the Obama administration that survivor advocates say was critical to winning new protections on campuses.

The new guidance document stated that if a college determines it is appropriate for a particular Title IX complaint, it can facilitate an informal resolution such as mediation for parties to reach a voluntary resolution. Advocates and lawyers were quick to note that language appeared to contradict 2001 guidance from the Department of Education.

But on the call with NACUA members, Jackson said that colleges should read the new guidance as allowing mediation even in cases of alleged sexual assault, according to two people on the call. In an email, Liz Hill, a spokeswoman for the department, said Jackson was restating language in the Q&A document.

While colleges would not be required to allow mediation or other informal resolutions, survivor advocates have said the option makes victims of assault vulnerable to pressure from their institutions to agree to a process not in their best interest.

Advocates also saw some irony in the department suggesting this interim guidance should take precedence over 2001 guidance that went through a formal notice-and-comment process. Education Secretary Betsy DeVos argued the Obama-era campus assault guidelines had been issued without proper public input and that the department would issue a new regulation after going through a notice-and-comment period. The Q&A document released last week was issued without any comparable public comment period.

Some college lawyers agree with Jackson's position on mediation and still find the guidance contradictory and confusing. But Scott Schneider, a lawyer who specializes in higher education-related issues, said the clarification from Jackson didn't make sense from a principled or a practical standpoint.

"I just can't imagine that there is a school in this country at this point that has anybody on staff who, I would have a high degree of confidence, has the competence to handle mediation in a sexual assault case," he said.

Laura Dunn, executive director of SurvJustice, said even though the department's Q&A document advises that both parties must consent to mediation, that does not guarantee that the interest of victims will be protected. She pointed to her own experience after being raped in college, when during a difficult interview for a campus investigation, she was offered the option to simply stop and write a letter to her assailant.

"I know what campuses can do with mediation," she said. "They can intimidate and break down survivors, and they can opt out of even trying to do the right thing."

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