Submitted by Jake New on November 4, 2016 - 3:00am
Identifying a football culture that protected athletes and officials, the Education Department will fine Penn State U nearly $2.4 million for failing to notify students about assistant coach charged with sex abuse and for failing to disclose other campus crimes.
Submitted by Peter Lake on August 11, 2016 - 3:00am
At Stanford University, an athlete was convicted of sexually assaulting an incapacitated woman. Not long after that, the University of Tennessee at Knoxville agreed to pay $2.48 million to settle a lawsuit brought against it by a group of women who said they were sexually assaulted by student athletes. Indeed, it seems as if a week doesn’t go by without the issue of sexual violence at colleges and universities making the headlines.
In this climate, the Title IX coordinator has become a crucial figure in efforts to deal with sexual assaults and their effects on campuses. But because much of the work of a Title IX coordinator occurs in confidence, it is often not well understood by others at the institution. A better awareness of how such coordinators do their jobs and the role they play can help all of us deal with the challenging issues surrounding sexual misconduct at institutions across the nation.
From February to July 2015, I was Stetson University’s interim Title IX coordinator, after the coordinator announced he was leaving for another job. I did not seek the position. My president asked me to serve, and my charge included helping our search committee identify a suitable candidate to assume a full-time post.
I was apprehensive about taking the job. First, I was not sure I would have the time or energy, given my supervision of the Center for Higher Education Law and Policy at the university’s law school, full teaching load, book projects and work as a speaker, consultant and expert witness. On top of that, my 99-year-old dad’s health was declining, and I wanted to be there to support him.
Second, as Title IX coordinator, I could be at ground zero of a major controversy at any time and/or (gulp) responsible somehow for the loss of my institution’s Title IV funding. And, third, doing the job risks traumatization and retraumatization -- an underappreciated challenge for Title IX coordinators everywhere.
I imagine that my president turned to me in part because of my extensive academic interest in higher education law generally and student safety specifically. I have directed the Center for Excellence in Higher Education Law and Policy for many years and have also been very active as a Title IX consultant since 2011. Yet nothing -- and I mean nothing -- truly prepared me to take the role of Title IX coordinator. The gravity of the job hits immediately on the first day. Lives can be at stake, and you are on point. For all my prior experience, I was still a rookie when it came to actually dealing with Title IX issues on a daily basis.
But that is how it is in Title IX -- battlefield promotions, hit the ground running, develop strategies and tactics as you go along. For all the bluster about best practices, the simple fact is that what we in higher education don’t know about Title IX compliance vastly outstrips what we do know. Guidance from the U.S. Department of Education’s Office of Civil Rights does not prepare anyone for the moment of taking the helm.
Once in office, I had to ask myself, “How do I operationalize all the complex Title IX guidance?” And I distilled the answer to that question into three focus areas: communication, leadership and structure.
Communication: The Batphone and the Football
The first step in operationalization is communication. Without the ability to receive and process data, a Title IX system is like a submarine without sonar. It requires eyes virtually everywhere at all times, which is mostly unrealistic and thus exceedingly stressful. It was challenging to keep up with multiple data points simultaneously.
Almost instantly, I became tethered 24-7 to a “batphone,” which I carried in a special pouch I named “the football.” I also came to depend heavily on an army of mandated reporters, known as responsible employees, to provide necessary data. I learned very quickly that many reports do not come first, if at all, from victims or survivors but instead from others who witness or otherwise learn about Title IX issues.
As the incident at Stanford demonstrates, bystanders often make the vital difference in bringing perpetrators to justice. In other situations, people are so badly traumatized or fearful of coming forward (understandably and sadly, because victim blaming remains so rampant) that their friends or family members come forward first. It’s not uncommon to get only fragments of story at the outset -- for instance, when someone sees something that looks troubling but they are not sure how to characterize what they have seen.
I dreamed about data gaps -- the Title IX equivalent of exam-stress dreams. You really don’t ever get a good night’s sleep on Title IX watch. If the phone, a text message or email doesn’t wake you up, your subconscious crunches the ever-present fear about what you don’t know, the pattern of discrimination you don’t see, the person who needs to come forward but who doesn’t trust the system -- the list seems endless.
Leadership: The Team, Its Coach and Its Mission
OCR guidance envisions a Title IX team. As a Title IX coordinator, you usually don’t directly supervise many people, but you need a lot of help and cooperation. The first order of business after establishing communication is to identify the key players -- including campus law enforcement officers, the dean of students, the directors of community standards and human resources, the senior administrator in charge of academic affairs, and coaches and deputy Title IX directors, for example -- and help them all form an identity as a team.
As Title IX coordinator, I asked administrators to come to meetings, and they showed up. I asked them to do things, and they did those things. They even volunteered.
I wondered, “Why are they doing this? They all know how to do their jobs better than I do, and I am not their direct report. I really don’t have any authority to make them do anything, and only a few jobs are the distinct province of the Title IX coordinator.”
After spending just a little time with the team, it became clear: Title IX compliance team members want leadership and something to believe in that gives their Title IX work meaning and purpose. The Title IX coordinator is a coach because the team needs a coach. Title IX policies and procedures do not respond -- people do. The motivation of Title IX responders is decisive in Title IX compliance success.
As a first step in setting a positive goal for the team, I tried something simple: a clear, achievable mission statement. Our mission was Title IX’s mission -- to reduce or eliminate barriers to educational opportunities caused by sex discrimination -- and to make each day a better day in Title IX compliance than the day before. Perfect compliance as a goal may be OCR’s dream, but it is not operational reality. Setting an unrealistic goal of perfect compliance -- whatever that might mean -- engenders frustration. It creates a culture of compliance built on the assumption that best efforts will never be good enough and a false fixation on outcomes over the real goal of creating a sustainable culture of compliance.
What is truly important is bringing the spirit of Title IX alive on a campus committed to the pursuit of Title IX’s mission. One of the most satisfying moments in the job is when a person impacted by Title IX issues thanks you for your efforts on their behalf. Or when you catch and discipline a perpetrator, knowing that it may have spared future victims. Title IX policies and procedures do not respond -- people do. The motivation of Title IX responders is decisive in Title IX compliance success.
Structure: The Four Corners of Compliance
Title IX team members can get lost in the weeds of compliance without a sense of their roles in the overall compliance system. Federal guidance provides mandates in four overlapping areas of operation: (1) organization and management, (2) investigation and grievance systems, (3) support for reporting and responding parties and (4) campus culture and climate. A well-ordered Title IX system operates in these four corners in a coordinated way. To illustrate, team members must be well trained; good policies and investigative techniques are essential; help with class schedules, access to services, and other support should be available to people contacting the Title IX office; and campuses should conduct surveys and checks to assess climate.
Each team member has a role to play in at least one corner -- and the work of each team member depends on all others doing their jobs. Structure avoids duplication of effort, inconsistency and gaps in meeting compliance obligations, and improves collaboration. My job as Title IX coordinator was to translate the bazillion federal mandates into specific activities for team members in a structured way.
Improving communication and providing leadership and structure doesn’t change the fact that the authors of the federal guidance have imagine an idealized operational reality for campuses, with heavy emphasis on compliance at large, well-endowed institutions. But in a nonideal setting, and especially at a smaller liberal arts university, significant operational challenges exist. They include:
The guidance keeps coming … Title IX coordination is an almost absurdly dynamic job. About midway through my time, the Department of Education dropped substantial new guidance. There were many new requirements, including a clarified reporting mandate for Title IX coordinators to directly report to senior leadership, such as the president. The job becomes more complex as you are doing it. Every day is a new day in Title IX, where business as usual is business unusual.
A concierge approach. Colleges and universities have a predictable tendency to treat a Title IX coordinator as a concierge at times -- contacting the coordinator when needed but not always including him or her in all operations. It’s not that people are hiding things, they just don’t think of you because that’s not the way things were done. It takes time and training to get administrators and faculty members used to reporting information to the coordinator when they do not report to him or her as a matter of course, and to include the coordinator in processes that never operated with a coordinator before.
Many metrics. Colleges and universities must comply with many other federal and state mandates besides Title IX. Making sense of how they all patch together into a coherent, operational reality is a monumental task. Inevitably, Title IX compliance work requires choices -- choices that may be second-guessed, reviewed and even countermanded. For example, a judge has occasionally ordered a campus to do something that runs counter to federal guidance. And, with all due respect to the federal government, there are many points of choice for which is there is little, no or insufficient guidance. As Title IX coordinator, you must do the best you can with the guidance and metrics that are out there.
Limited compliance time. Title IX compliance requirements come with their own clock, even a shot clock. Many mandates require immediate compliance. Meanwhile, higher education traditionally works in its own time frame, which is often quite a bit longer. Developing a culture of meeting compliance obligations in compliance time takes patience -- recognizing that investigating regulators might provide no forbearance for the following a clock other than their own.
Growing reporting requirements. It takes some work to explain to superiors why an increase in reporting is a good thing. Ironically, if a Title IX system is more effective, you will receive more reports and the Title IX team will become overworked. I learned to prepare for the challenge of success and false negatives -- such as the perceived negative of a rise in reporting of harassment that follows when a Title IX system is working better because people who would previously not have come forward are now doing so.
Life or Death, Title IX Comes First
Title IX coordination involves dedication and sacrifice. On May 7, 2015, my dad passed away, three weeks shy of his 100th birthday. I was working on Title IX at the hospital and then in hospice, and I made Title IX-related calls while driving to make funeral arrangements. I didn’t tell the Title IX team or my supervisors. Partially, I did it out of respect for my dad. He would have wanted it that way -- a Depression-era guy who stressed the rewards of work and higher education and who taught me to play hurt and not complain about it.
But I also did not want to burden or disrupt our Title IX efforts with my personal challenges. I am not an EMT, firefighter, or combat soldier, but make no mistake, when it’s your time on watch, you can come to care more about your campus and its students and staff than yourself. The thought that anyone could be harmed because of even the slightest lapse in time or attention to compliance obligations made me heartsick. The federal government requires a Title IX coordinator to respond, but a duty to respond can turn into a form of caring that is hard to understand unless you have had the mantle of Title IX responsibility.
I grieved for my dad, and I dedicate this article to him. But I also had an epiphany. I came to realize that my apprehensions around being Title IX coordinator had evaporated completely. I had come to embrace my job and the opportunity to care deeply for the faculty members, administrators and students. I experienced an unusual variation on the old truism that one door closes and another opens.
The fight to end violence and discrimination is a calling -- and we all have a critical role to play. I hope those of you reading this article will become well acquainted with your Title IX coordinator, if you are not already, and be willing to support his or her work -- or perhaps even serve as a coordinator yourself one day. I recommend the job most highly.
At the preordained time in July, my president called to officially relieve me of duty. I have a thank-you card from my Title IX team that I keep in my treasure file -- the one I keep for rainy days to remind me why I came into higher education. My successors will now have the batphone and lead the team forward. My wish for them is my wish for all Title IX coordinators whom I now proudly call colleagues: may your days as coordinator be as rewarding as mine.
Peter Lake is professor of law, Charles A. Dana chair and director of the Center for Higher Education Law and Policy at Stetson University College of Law. He is also a former Title IX coordinator who misses the job.
The federal government, primarily the U.S. Department of Education's Office for Civil Rights, has provided guidance in recent years regarding how colleges and universities must respond to sexual misconduct if they hope to stay in compliance with Title IX of the Education Amendments of 1972. This guidance includes:
OCR's 2011 Dear Colleague letter regarding sexual misconduct;
OCR's 2014 questions and answers document regarding sexual misconduct;
OCR's 2015 Dear Colleague letter regarding the role of Title IX coordinators;
The Violence Against Women Act amendments; and
The You're Not Alone campaign led by the Obama administration and other resources from the White House.
As a result of such extensive guidance, the frequency of complaints filed on college campuses has increased significantly and the standard for investigating these complaints has also risen. Not surprisingly, many more people have been found responsible for acts of sexual misconduct on campuses in recent years, and the sanctions for the accused can be severe: the loss of leadership opportunities or the ability to participate in college activities, suspension and expulsion.
Yet while the federal government's guidance is extensive, it is hardly exhaustive. And although some people chafe at what they view as federal overreach into serious matters that they think should best be left to law enforcement and the court system, others view the federal government’s role as only the start of a process that will heighten the dialogue around sexual misconduct (and the often accompanying substance abuse) that commonly occurs on college campuses.
For its part, the OCR -- the primary federal agency enforcing much of the guidance -- has largely refused to provide a template of an acceptable sexual misconduct policy that would satisfy the varied criteria that have been set forth. (Notably, in June, OCR did state, in reaching an agreement with Occidental College to resolve an ongoing sexual violence and harassment complaint investigation, that the college's current policy “concerning sexual misconduct and procedures for resolving complaints and reports of sexual misconduct as written provides a prompt and equitable resolution of complaints of sexual harassment, including sexual violence.”)
It is not surprising, then, that individual policies and procedures for dealing with allegations of sexual misconduct vary widely by institution. Increased findings of responsibility for sexual misconduct have also led to an increase in private litigation filed by students accused of sexual misconduct, who often contend that their institutions' sexual misconduct policies and procedures are unfair to them. More specifically, many accused students argue that campus proceedings do not allow for meaningful due process.
For example, in Doe v. the Board of Regents of the University System of Georgia, an expelled student claimed that the Georgia Institute of Technology violated his federal due-process and equal-protection rights and Title IX of the Education Amendments of 1972; he also alleged state law claims of breach of contract. In another recent case, Doe v. Rector and Visitors of George Mason University, a student filed suit after an assistant dean reversed an administrative panel's determination that he was not responsible for sexual assault and expelled him. The court determined that the assistant dean violated the student's right to due process, as he held the student responsible for behavior for which he was not charged and met with several members of the disciplinary panel separately without notice to the student.
In sum, the federal government and the courts have presented a challenging maze for institutions to navigate in responding to sexual misconduct on campuses in recent years. Adding to that challenge, the states are beginning to enter the fray by drafting their own legislation or governing policies. Some of the early versions of various state efforts are consistent with the federal guidance and recent court cases, and some are not. Georgia is one of the early states to implement a policy that went into effect on July 1, 2016, so their policy is worth review and consideration in the broader discussion about sexual misconduct at colleges and universities, the role of the federal and now state government, and how institutions respond to sexual misconduct both through their policies and in practice.
Additional Processes for Students
As a result of the new sexual misconduct policy of the Board of Regents of the University System of Georgia, all Georgia public colleges and universities must ensure that their sexual misconduct policies provide additional requirements for investigations and additional process for the students -- particularly for the accused -- involved in these cases. For example, before taking any interim measures that might involve a student’s immediate suspension from the campus pending an investigation, the regents’ policy requires the institution’s Title IX coordinator to provide the respondent (or the accused) with an initial opportunity to respond to allegations and "to make all reasonable efforts to give the respondent the opportunity to be heard on whether his or her presence on campus poses a danger."
Also relatively distinct to the regents’ policy, a respondent has a right to remain silent without an automatic adverse inference being drawn against him or her during the institution's adjudication process. This change is an important one. Many students who also have pending criminal charges are often advised by their lawyers to remain silent or not participate at all during the institutional proceeding so as to not provide a record that can be used in future criminal proceedings. As a result, the institutional investigation often becomes one-sided.
In addition to the points referenced above, the following are some additional notable requirements of the regents’ policy (some verbatim, others summarized):
The investigator is required to keep records of any proffered witnesses not interviewed, along with a brief written explanation.
At the conclusion of the investigation, the investigator will issue to the parties a written report setting forth charges and possible sanctions, as well as an explanation of the evidence against the respondent.
Parties will have at least three business days to respond to the report in writing. The respondent's written response should outline his or her plea in response to the charge, and where applicable, his or her defense(s), and the facts, witnesses and documents in support.
The investigator then shall, as necessary, conduct further investigation and update the report as warranted by the response(s), and will update the report as necessary.
The investigator may testify as a witness before the panel regarding the investigation and findings, but shall otherwise have no part in the hearing process and shall not attempt to otherwise influence the hearing panel outside of providing testimony during the hearing.
Both parties shall have the right to indirectly confront any witness, including the other party, by submitting written questions to the Title IX coordinator. Advisers may actively assist in drafting questions.
The hearing panel must ask the questions as written and will limit questions only if they are unrelated to determining the veracity of the charge, erring on the side of asking all submitted questions and documenting the reason for not asking any particular questions.
There is a preponderance-of-evidence standard of review, but any decision to suspend or to expel a student must also be supported by substantial evidence at the hearing.
Each party shall have three business days to submit a written statement to supplement the notice of the complaint and the verbal interview, including any response by the respondent, who has the right to admit or deny the allegations and set forth any defense with facts, witnesses and documents.
There are three available administrative appeals: (1) to the vice president of student affairs, (2) to the president and (3) to the Board of Regents.
Appeals can be made on any of these limited grounds: (1) consideration of new information because such was not known or knowable to the person appealing during the time of the hearing, (2) procedural error within the hearing process substantially impacting fairness and (3) a finding inconsistent with the weight of the information.
The regents’ policy, among other things, requires Georgia's public colleges and universities to adhere to minimum procedural safeguards, many of which are necessary to satisfy due process. At the same time, there are challenges with maintaining compliance with federal guidelines. For example, what is the appropriate disposition of an accused student, either as an interim measure or final outcome, when there has been an alleged rape, yet the only evidence is the testimony of the complainant and the accused?
While the federal guidelines require colleges and universities to allow, among several alternatives, suspension or expulsion as a means to create a safe and nonthreatening environment for the alleged victim, the regents’ policy requires "substantial evidence" for any decision to suspend or to expel a student. Even if the accused's testimony -- the only other evidence besides the complainant's testimony in this scenario -- is not credible, such lack of credibility might be sufficient to conclude a rape occurred but not be substantial evidence to justify a decision to suspend or expel the student. This hybrid evidentiary standard may trigger challenges from OCR.
Also, actually implementing an accused student's right of silence as provided in the regents’ policy might also prove to be somewhat challenging, given the federally mandated preponderance-of-evidence standard of proof in college proceedings -- a significantly lower burden of proof than the standard applied in criminal proceedings. It may still require a finding that the accused was responsible even if a shade of doubt remains. Best investigative practices require that institutions conduct their own thorough investigations regardless of whether a respondent participates, and that commonly leads to other witnesses who might exculpate a respondent or at least shed some doubt on the complainant’s allegations. But often these cases involve issues of consent in relations that are commonly one-on-one and do not have many other exculpatory witnesses. Campus hearing panels considering such evidence might need additional guidance.
In sum, the regents’ policy seeks to implement an even more rigorous set of requirements than the federal guidance, including some requirements that might ultimately prove to be counter to the government's guidance in certain areas. As these cases continue to be litigated in the courts, and as the states and the federal government continue to exchange guidance regarding how institutions should respond to sexual misconduct, college and university leaders must read the tea leaves from several different sources to navigate a path that, above all, treats their community with respect and ensures the community’s safety.
Vernon Strickland is an associate at the law firm Holland & Knight. Phil Catanzano is senior counsel there.