Complainants
SEE: How the New Title IX Regulation Benefits Sexual Assault Complainants
The 2011 OCR Dear Colleague Letter (DCL), now rescinded, required that all sexual assault allegations be handled by campus disciplinary committees. But many years later, there is no evidence these campus committees have succeeded in increasing the reporting of assaults to campus officials. According to the American Association of University Women, 89% of colleges received zero reports of campus rapes in 2015.
Indeed, there is evidence that campus procedures have actually mistreated identified victims, as revealed by a dramatic increase in the number of Title IX (“Sex”) complaints to OCR following issuance of the 2011 Dear Colleague Letter:
NEW REGULATIONS ARE PROTECTING AND EMPOWERING COMPLAINANTS
In 2017, SAVE released a Special Report that examined the effects of the 2011 Dear Colleague Letter. Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade documented that hundreds of grievances have been filed, both with the Office of Civil Rights and in court, by identified victims against their schools. The five most common reasons for dissatisfaction were:
- Schools acting with “deliberate indifference”
- Failure to investigate claims
- Lengthy and unfair investigations
- Mandatory reporting
- Lack of advisor assistance
In response to these complaints, the new Title IX regulation is providing fundamental protections to complainants.
Deliberate Indifference
In some cases, institutions have acted with extreme “deliberate indifference” to complaints. These are three examples:
The new regulations specify “Specific circumstances” in which an institution’s actions are not deliberately indifferent, thereby clarifying when actions need to be taken when investigating a claim of sexual misconduct (§106.44(b)). For instance, if there exists actual knowledge of multiple complaints filed against a single party, the Title IX Coordinator is required to file a formal complaint (§106.44(b)(2).
Failure to Investigate
At Baylor University in Texas, complainants reported alleged assaults to the athletic coaches of the accused harassers, and those claims were ignored and not investigated. At Amherst College in Massachusetts, a student was forced to withdraw from the college because the administration refused to investigate her reported rape and instead ostracized and punished her when she suffered physically and mentally due to stress caused by the incident.
The proposed regulations provide bright-line rules as to what types of reports must be investigated, and in what manner those investigations shall take place. Further, the policies and procedures are to be published to the student body and provided to the students when a formal complaint is made. Complainants will have written notice of the exact procedure surrounding the investigation and adjudication of their claim, and will know what to expect at all times.
Lengthy and Unfair Investigations
Lack of timely investigations is yet another complaint identified by many complainants. For example, the University of Alaska system, after a three-year OCR investigation, was found in many cases to have “failed to provide prompt and equitable investigations in response to reports of sexual harassment, including sexual violence.” Such systemic failures will be prohibited by the new regulations.
The proposed regulations require institutions to (i) “[i]nclude reasonably prompt time frames for conclusion of the grievance process” in their policies and procedures; (ii) to publish and adhere to basic procedural requirements for providing notice of the complaint, the investigation of that complaint, the hearing resulting from the investigation, and the appeal process, if an appeal is permitted; (iii) provide the complainant with equal access to and to provide a copy of all of the evidence obtained during the investigation, whether or not it will be relied upon in reaching a determination in the matter.
Complainants are also protected from false statements offered by other parties or witnesses. The proposed regulations include clear policy guarantees that complainants have access to consistent and fair procedures and will not be forced to make guesses about what will happen once they file a complaint..
Mandatory Reporting
Many colleges have mandatory reporter policies in which most of the faculty and staff are trained to be “mandatory reporters” of sexual misconduct, and a student can lodge a sexual misconduct complaint with virtually anyone on campus.
While such policies sound good in theory, in practice the policy “takes away [complainants’] agency to decide when, where and how to report a Title IX violation,” and that the university assumes control over the alleged incident, further traumatizing the identified victims. One commentary noted:
“The policy effectively demands that every faculty member disclose the details of any student account of a sexual assault, whether it has been expressed in a course assignment, a classroom discussion, or a private conversation. Faculty will be required to make the disclosure to campus officials, even if the student has expressly indicated a desire not to file an official complaint. These requirements will have a chilling effect on students’ willingness to talk about difficult experiences with anyone on campus, even those experiences that may have nothing to do with sexual violence.”(emphasis added)
The new regulation requires that notice of sexual misconduct must be received by the “Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient” (§106.44(e)(6)).
Lack of Advisor Assistance
In the past, sexual assault complainants seldom received professional advice during the investigation of their complaints. They seldom brought an advisor to the hearing. They were often alone, in a separate location and appeared by Skype or conference call. They had no experience in developing appropriate questions to ask of the person they had accused of sexual misconduct.
The new regulation empowers accusers to cross-examine the accused via an advisor. Institutions are obliged to provide advisors to perform the cross-examination to those students who do not have one.
An accusation that withstands cross-examination at the hearing achieves a more reliable result, and the findings are less likely to be overturned on appeal to the university or in litigation.
Conclusion
The new Title IX regulation helps to enforces many protections for complainants, avoiding many of the complaints previously brought. Clear policies define to whom complaints should be made. Investigations must take place in a timely manner so complainants can continue their education.
EXAMPLES OF MISTREATMENT OF VICTIMS
There are numerous examples of identified victims whose complaints were mishandled by their colleges. In some cases, the women said their mistreatment at the hands of college administrators was more traumatic than the original assault. Many of these “horror stories” are detailed in Appendix A of SAVE’s report, Six-Year Experiment in Campus Jurisprudence:
ALABAMA
University of Alabama at Birmingham: A female student named Shannon reported an incident to her school in October. She claims that a school representative told her that it may be best if she would “drop out for the semester.” A no-contact order was put in place, but she was the one who had to avoid the accused student. After three months, the investigator (a divorce lawyer) concluded the accused not responsible without ever looking at Shannon’s rape kit, speaking with her psychiatrist, or reviewing the photos that corroborated the bruising she reported. “The assault was bad,” Shannon concluded, “but the way my school has treated me has created more trauma than the original assault did.”[1]
ALASKA
University of Alaska, Anchorage: In 2017, the Department of Education issued its Title IX investigation findings detailing “very serious failures” by the university when investigating campus sexual assaults, including failing to investigate reports of student sexual assaults. Based on the OCR settlement agreement, the UA system must re-examine two dozen cases filed from 2011 through 2015.[2]
ARKANSAS
University of Arkansas, Fayetteville: The University of Arkansas was named in a Title IX lawsuit by a former student, Elizabeth Fryberger. She alleged the University of Arkansas violated Title IX after she reported that Raymond Higgs, a fellow student, sexually assaulted her in October. The university found Higgs responsible for sexual assault and ordered him expelled in December. Higgs appealed, arguing that the sanction was too severe and would impede his athletic career. As a result, the university told Fryberger that his expulsion wouldn’t take effect until the day after his graduation.[3]
COLORADO
University of Colorado at Boulder, Boulder: The university settled with a woman who claimed that it took the university four weeks to remove a student after he was found responsible for non-consensual sexual intercourse.[4]
INDIANA
Indiana University, Bloomington: The Department of Education’s Office for Civil Rights opened an investigation after a student filed a complaint in 2016 saying the university violated gender equality laws by mishandling her report of sexual assault. The complaint states that the assigned Title IX investigator was under his own unrelated investigation for sexual assault. The alleged perpetrator was found not guilty of sexual misconduct after the university’s investigation.[5]
IOWA
Drake University, Des Moines: Student John Doe filed a federal lawsuit alleging gender discrimination after the school refused to investigate his sexual assault claim against a female student. According to both parties, Doe was incapacitated due to intoxication when he and Jane Roe engaged in sexual activity. The following day, Roe filed a complaint of sexual assault. Doe filed his own complaint against Roe, which the school refused to accept, claiming it was retaliation.[6]
KANSAS
Kansas State University, Manhattan: Sara Weckhorst reported to KSU officials that she was raped at a fraternity house by two male students. Weckhorst claimed that KSU officials refused to investigate because the alleged incident occurred off-campus. Weckhorst filed a federal lawsuit against KSU alleging Title IX violations.[7]
Kansas University, Lawrence: A male student was found responsible for assaulting two female students, and transferred to another school after being allowed to withdraw for “non-academic misconduct in lieu of expulsion.” Former student Daisy Tackett filed a Title IX lawsuit against KU alleging that the six-month long investigation allowed a hostile educational environment to persist, the rowing coaching staff ignored her struggles with anxiety, and punished her for missing practice to meet with investigators.[8]
KENTUCKY
Northern Kentucky University, Highland Heights: Allegations of an effort to protect members of the basketball team, who were accused of sexual assault, cast doubt on the objectivity of the school’s disciplinary system. The players involved in the incident were permitted to finish the season and conference tournament, but suspended for an undetermined length of time during the off-season. The NKU athletic director, who was aware of the allegations, never called the police.[9]
MARYLAND
University of Maryland, College Park: Two identified victims of sexual assault filed a complaint with the Department of Education alleging that the university mishandled their investigations.[10]
MASSACHUSETTS
Harvard University, Cambridge: Alyssa Leader filed a Title IX lawsuit against the University for “deliberate indifference” to her sexual assault claim against a fellow student, John Doe. Leader’s claim focused not only on the school’s initial response, but also on the University’s failure to respond “to her multiple reports that she was subjected to continuous, retaliatory harassment by Doe and his friends.”[11]
NEW YORK
Columbia University, New York: Amelia Roskin-Frazee reported an incident of sexual assault to the school a few weeks after it allegedly occurred. Roskin-Frazee states that school representatives told her to go to police and failed to investigate her claim. A few months later, Roskin-Frazee claimed she was brutally raped again by another unknown assailant while entering her dorm room. She was reluctant to file a complaint due to the response from her prior complaint. Roskin-Frazee filed a Title IX lawsuit on March 21, 2017, alleging university staffers were “apathetic and unresponsive” to her reported rape and multiple sexual harassment claims.[12]
Cornell University, Ithaca: In February 2017, four attorneys from the Department of Education’s Office for Civil Rights visited Cornell University to hold open discussions about the campus climate surrounding sexual assault. The consensus among attendees: “it’s bad.” Meeting participants charged that the university Title IX office cared more about avoiding litigation than seeking justice. Respondents had no ability to examine or confront accusers or to question witnesses or be represented by an attorney, and complainants were not informed of the investigation’s timeline.[13]
NEW MEXICO
University of New Mexico, Albuquerque: A former student sued the university alleging university administrators interfered with a police investigation into her gang rape by two football players and a third student. Following an investigation, the Justice Department concluded that the University of New Mexico’s Office of Equal Opportunity created a system so traumatizing that “almost all complainants with whom the United States spoke said that they wished they had never gone through the process and would not refer another student who had experienced sexual assault to OEO.”[14]
OREGON
University of Oregon, Eugene: A woman sued the university, alleging that she was raped by three basketball players and that the school tailored and delayed their discipline so the men could still play in the NCAA tournament. She also said the university gave its lawyers her counseling records. The university settled with her. The university now is being sued by the three basketball players.[15]
TENNESSEE
University of Tennessee, Knoxville: Eight women sued the University for “deliberate indifference” regarding sexual assault by athletes. Among the lawsuit’s more troubling allegations, when football player Drae Bowles tried to help a woman who said she had been raped by other players, the coach called him a “traitor” and multiple players attacked him for helping her. In the settlement, UT agreed to pay the eight women a total of $2.48 million.[16]
TEXAS
Baylor University: A federal Title IX lawsuit filed against BU, by a former female student, in January 2017, was the sixth of its kind filed in the wake of an investigation that revealed the university failed to properly respond to and address allegations of sexual assault committed by students. An independent report charged, “coaches were inappropriately involved in disciplinary and criminal matters or ‘engaged in improper conduct that reinforced an overall perception that football was above the rules,’ and did more to hinder, not help, women who made allegations of assault or domestic violence.”[17]
UTAH
Utah State University, Logan: Several students made complaints of sexual violence by Jason Relopez. No action was taken and Relopez was permitted to remain on campus. Subsequently, Victoria Hewlett, a USU student who was unaware of the first incident, reported that she was raped by Relopez. When Hewlett went to police, Relopez was arrested and charged criminally. He received a one-year jail sentence. Hewlett subsequently filed a federal lawsuit against USU for not taking appropriate action in the face of complaints by multiple victims.[18]
VIRGINIA
Richmond University: Cecilia Carreras reported being sexually assaulted by a fellow student. Carreras later claimed that the Title IX coordinator gave an inappropriate justification for the actions of the accused student. Further, she claimed the university didn’t do enough to keep the alleged attacker away; that administrators responded with insensitivity when dealing with the case.[19]
WASHINGTON, D.C.
American University, Washington DC: A male student admitted responsibility for allegations of sexual assault against a female AU student. The male student was placed on probation for one year, banned from Greek life, and required to take an online educational module on sexual assault. The victim filed a Title IX suit challenging the fact that she was forced to sign a gag order about the case.[20]
WISCONSIN
University of Wisconsin – Whitewater: Two identified victims filed a Title IX complaint against the school, saying administrators failed to interview key witnesses in their cases. One student charged, “I don’t think anybody should be treated the way that I was. It was worse than the assault, a lot worse. I regret with everything, coming forward and saying anything.”[21]
Citations:
[1] Tyler Kingkade, She Was Barred From the Library to Avoid Him, The Huffington Post (March 8, 2016), available at http://www.huffingtonpost.com/entry/college-sexual-assault-gag-orders_us_56ddd17ae4b0ffe6f8ea278c.
[2] Tyler Kingkade, Advocates Worry About New Era Of Secrecy On Campus Rape, Buzz Feed News (February 23, 2017), available at https://www.buzzfeed.com/tylerkingkade/advocates-worry-about-new-era-of-secrecy-on-campus-rape?utm_term=.pbvLAJEkW&utm_content=bufferacc2a&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer.
[3] Tyler Kingkade, A University Says It Shouldn’t Have To Pay Money To Campus Rape Victims, Buzz Feed News (March 21, 2017), available at https://www.buzzfeed.com/tylerkingkade/university-of-arkansas-title-ix-lawsuit?utm_term=.kmrXXzbGk&utm_content=buffer63619&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer#.bppjjYO8q.
[4] Diana Moskovitz, Why Title IX Has Failed Everyone On Campus Rape, Deadspin (July 7, 2017), available at http://deadspin.com/why-title-ix-has-failed-everyone-on-campus-rape-1765565925?utm_content=bufferb0b24&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer.
[5] Mary Ann Georgantopoulos, Feds Investigating Indiana University’s Handling of Sexual Assaults, Buzz Feed News (June 2, 2016), available at https://www.buzzfeed.com/maryanngeorgantopoulos/department-of-education-opens-third-investigation-into-iu-bl?utm_term=.ix2ddoZNA#.dwzeev53d.
[6] Ashe Schow, Lawsuit: Father Fired After Defending Disabled Son From Campus Kangaroo Court, Watchdog.com (March 20, 2017), available at http://watchdog.org/291268/father-fired-defending-disabled-son-campus-kangaroo-court/.
[7] Tyler Kingkade, Lawsuit Says University Policy Let Repeat Rapist Prey On Women, Buzz Feed News (November 28, 2016), available at https://www.buzzfeed.com/tylerkingkade/kansas-state-lawsuit-accused-student-rape-again?utm_content=bufferfdd37&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer.
[8] Ashley Scoby, A Woman Says She Was Raped; The Injustice She Felt Afterward Only Added To Her Pain, The Kansas City Star (December 9, 2017), available at http://www.kansascity.com/sports/college/big-12/university-of-kansas/article119977028.html?utm_content=buffer5f7e3&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer.
[9] James Pilcher, NKU Basketball Players Involved in Sex ‘Incident’, Cincinnati.com (September 8, 2016), available at http://www.cincinnati.com/story/news/your-watchdog/2016/09/08/nku-basketball-players-involved-sex-incident/89993064/.
[10] Fox 5 DC, Two Victims of Sexual Assault File Federal Complaint Against UMD, November 2, 2016, available at http://www.fox5dc.com/news/215171080-story?utm_content=buffer11197&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer.
[11] Andrew M. Duehren & Daphne C. Thompson, In Title IX Suit, Harvard Will Go to Court, The Harvard Crimson (September 7, 2016), available at http://www.thecrimson.com/article/2016/9/7/Harvard-preps-for-Title-IX-suit/.
[12] Kaja Whitehouse, Columbia Ignored Me When I Was Raped In My Dorm: Lawsuit, New York Post (March 21, 2017), available at http://nypost.com/2017/03/21/former-student-says-columbia-didnt-care-she-was-viciously-raped-on-campus/?utm_content=bufferb5c8b&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer.
[13] Drew Musto, OCR Open Forum Reveals Concerns Regarding University’s Title IX Office, The Cornell Daily Sun (March 2, 2017), available at http://cornellsun.com/2017/03/02/ocr-open-forum-reveals-concerns-regarding-universitys-title-ix-office/.
[14] Diana Moskovitz, supra at note 4.
[15] Id.
[16] Id.
[17] Paula Lavigne and Mark Schlabach, New Baylor Lawsuit Alleges Culture In Which Drugs, Alcohol And Sex Were Encouraged, ESPN.com (January 28, 2017), available at http://www.espn.com/college-football/story/_/id/18569197/latest-lawsuit-filed-baylor-university-alleges-culture-which-drugs-alcohol-sex-were-encouraged.
[18] Alex Stuckey, Rape Victim Says She Was Sixth To Report Utah State Student, Sues School For Not Acting, The Salt Lake Tribune (November 7, 2016), available at http://www.sltrib.com/home/4342991-155/rape-victim-says-she-was-sixth?utm_content=bufferce226&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer
[19] Tyler Kingkade, Student Says University Botched Rape Case, Then Called Her A Liar, Buzz Feed News (September 14, 2016), available at https://www.buzzfeed.com/tylerkingkade/university-of-richmond-campus-rape-victim-called-a-liar?utm_term=.fuKMMJQ5N&utm_content=buffer76fef&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer#.ieaKKR0pV.
[20] Tyler Kingkade, He Admitted to Sexual Assault, But She’s The One They Tried to Silence, The Huffington Post (March 8, 2016), available at http://www.huffingtonpost.com/entry/college-sexual-assault-gag-orders_us_56ddd17ae4b0ffe6f8ea278c.
[21] Kate Briquelet, College Coach: I Was Fired for Reporting Campus Rape to Police, The Daily Beast (August 25, 2016), available at http://www.thedailybeast.com/articles/2016/08/25/college-coach-i-was-fired-for-reporting-campus-rape-to-police.html?utm_content=bufferb5f9c&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer.