A Guide To Understanding What Is Expected Of Colleges & Universities Under Federal Gender Equity Requirements When A Sexual Assault Is Reported
By Holly Hogan, Legal Intern, Security On Campus, Inc.
Copyright © 2005 Security On Campus, Inc.
Sexual
harassment is “unwelcome conduct of a sexual nature…[and]… can include
unwelcome sexual advances, request for sexual favors, and other verbal,
nonverbal, or physical conduct of a sexual nature.”[1] Federal law prohibits sexual harassment
of college and university students whether the harasser is an employee or
another student. Sexual assault, a
term which includes rape and other forms of sexual abuse like forcible
fondling, is an extreme form of sexual harassment. It is “unwelcome conduct of a sexual nature,” and more
specifically, “unwelcome sexual advances” and “unwelcome physical conduct of a
sexual nature.”
Sexual assault,
like the other forms of sexual harassment “can deny or limit, on the basis of
sex, the student’s ability to participate in or to receive benefits, services,
or opportunities in the college or university’s program.”[2]
Sexual assault survivors often experience physical injuries, emotional
distress, and mental distress, all of which can stand in the way of the
survivor’s educational opportunities.
For example, when a survivor withdraws from a class because the attacker
is in the same class or continues to attend that class with great emotional and
mental difficulty, the sexual assault has impacted the survivor’s
education. Sexual assault can
affect the educational opportunities of the survivor and other students. When it affects the survivor’s and/or
other students’ educational opportunities, the sexual assault creates what the
legal system identifies as a hostile environment. Note that sexual harassment includes opposite gender and
same gender sexual harassment.
Title IX of the
Education Amendments of 1972 (Title IX), a federal law, requires that once a
college or university (“college”) knows or reasonably should know of possible
sexual harassment of students, it must take “immediate and appropriate steps to
investigate or otherwise determine what occurred and take prompt and effective
steps reasonably calculated to end any harassment, eliminate a hostile
environment if one has been created, and prevent harassment from occurring
again” regardless of whether the student who has been harassed complains of the
harassment or asks the college to act.[3] When a college fails to do so, it
becomes subject to legal action, either through a private civil lawsuit brought
by the survivor or an administrative proceeding through the U.S. Department of
Education’s Office for Civil Rights.
To meet its
obligations required by law under Title IX, a college must take a variety of
actions:
A college must
create a sexual harassment policy that explains how a student can file a
complaint and what will happen after he or she makes that complaint, commonly
referred to as grievance procedures.
The grievance procedures must provide for “prompt and equitable
resolution of complaints.”[4] That means that the procedures must be
set up so that the college handles complaints in a prompt, fair and impartial
manner. Each college must
designate a coordinator for sexual harassment complaints who has training on
sexual harassment matters. The
policy and coordinator’s contact information must be advertised to
students. To find these grievance
procedures, a student should look in the college’s student handbook, student
judicial codes, and/or Jeanne Clery Act annual campus security report (Each
student should receive a copy of the Clery report or notice of it by October 1st
of each year and it should be available on the school’s website or from a
student affairs, campus police/security, or admissions office). Colleges have been found to violate
Title IX when their procedures included several complaint processes (through
housing, the disciplinary board, and campus police) with no coordination among
them[5]
and when their policies do not contain time frames for the resolution of
complaints.[6]
Once a student
who has been harassed reports the sexual harassment, the college must discuss
with the student the options for informal and formal action, including an
explanation of the grievance procedure.[7] A college is not required to establish
a procedure for informal complaints but must address them.[8] If the college learns about harassment
in other ways, such as a report from a student other than the harassed student,
the college must consider a variety of factors to determine the reasonable
response.[9] If it is reasonable for the college to
investigate and it can confirm the allegations, the college must follow the
same responsive action as if the college learned of harassment from a report by
the harassed student.[10] Whether or not the harassed student
requests action, the college must promptly investigate and take steps to
resolve the harassment. The type
of investigation varies by situation but in all cases must be prompt, thorough,
and impartial.[11] While investigating, it is good
practice for colleges to periodically inform the harassed student about the
investigation.[12]
The college
should make every effort to keep the names of those involved confidential,
including the complainant (the harassed student), witnesses, and the accused
(the harasser), unless necessary to investigate and only to the extent
necessary to do so.[13] If the complainant wants to keep his or
her name confidential from the accused student, the college should inform the
complainant that such a request could limit an investigation and explain the
college’s retaliation prevention.
If the complainant still desires to keep his or her name confidential
then the “college should take all reasonable steps to investigate and
respond…consistent with the student’s request as long as doing so does not
prevent the college from responding effectively…and preventing harassment.”[14]
Colleges have
been found in violation of Title IX for investigatory practices such as allowing
the accused to respond to allegations before being questioned;[15]
giving the accused student the opportunity to rebut the complainant’s
allegations without giving the complainant the same opportunity;[16]
failing to interview a witness who heard the complainant telling the accused to
stop;[17]
pursuing a non-disciplinary hearing process without consulting complainants
about whether or not they wanted the hearing option;[18]
and completing campus police investigatory reports that show clear bias against
the complainants.[19]
Disciplinary
hearings have violated Title IX by requiring the complainant to prove that she
had been sexually harassed rather than requiring the college to fully
investigate the charge and issue a report to a hearing committee;[20]
using a higher standard than preponderance of the evidence (more likely than
not that sexual harassment occurred);[21]
and inadequately informing the disciplinary committee about the investigation.[22]
It
may be appropriate for the college to adopt interim measures while investigating
the complaint. The Jeanne Clery
Act requires the school to change the complainant’s living and academic
arrangements if the complainant requests the change and arrangements are
reasonably available.[23] This may happen before the school takes any other action, and should be as immediate as
possible. Since the complainant is being moved, not the accused student, there
are no due process issues, and hence should be no delay. Under Title IX, a school could
impose an interim suspension of the harasser from housing, or school
altogether, or other arrangement, and do so even without a specific request
from the complainant. If potential
criminal conduct is involved the college should determine whether to notify law
enforcement.[24] However, schools have violated Title IX
when the school stopped its investigation after a complaint was filed with the
police or decided to wait until the end of a police investigation to conduct a
school investigation.[25] Such action is a violation in part
because a law enforcement investigation may take a very long time, and a school
cannot allow a hostile environment to persist for that long, as well as because
law enforcement investigations and sexual harassment investigations use
different standards (i.e. a criminal conviction requires proof beyond a
reasonable doubt and a finding of sexual harassment requires a lower standard
of proof).
If
a college determines that the complainant was harassed, “it should take
reasonable, timely, age-appropriate, and effective corrective action.”[26] A college may counsel, warn or
discipline the harassing student in accordance with the severity of harassment,
prior incidents, or both.[27] Possible corrective actions include
permanently changing housing arrangements; directing the harassing student to
no longer contact the survivor; special training and workshops to repair the
educational environment; assisting the survivor in making program or schedule
changes that do not adversely affect the survivor’s academic record; preventing
further harassment; preventing retaliation; suspension; and/or expulsion.[28]
Colleges have been found to violate Title IX by not following up on complaints
that the harassing student was not in compliance with his terms of discipline.[29] Furthermore, the Office for Civil Rights
has implied that affording the complainant “an
opportunity to appeal the findings or remedy, or both” is something that it
will consider “in evaluating whether a school's grievance procedures are prompt
and equitable.”[30]
The
Family Educational Rights and Privacy Act does not prevent a college from
notifying a sexual assault complainant about the outcome of the complaint. Under Title IX a school can release
information regarding disciplinary action imposed on a student found guilty of
sexual harassment if a) the information directly relates to the complainant in
non-sexual assault harassment and sexual assault harassment; or b) if the
harassment involves a crime of violence or sex offense in a post secondary
institution (i.e. sexual assault).[31] Additionally, the Jeanne Clery Act
requires the college to inform the complainant and the accused of the final
results in a sexual assault case, including the original findings and any
appeals, in an equal, unconditional, and affirmative way.[32]
There are two
avenues in the legal system to remedy violations of Title IX, an administrative
complaint via the Department of Education’s Office for Civil Rights and a
private lawsuit filed by the harassed student:
Usually, OCR
only takes complaints filed within 180 days from the last act the student
believes was discriminatory or if there is a continuing discriminatory practice
or pattern. OCR will investigate a complaint, issue findings against a college
or university, and require the college to take corrective action. OCR also has an early complaint
resolution process whereby the college can take corrective action before an
investigation begins. OCR’s
process allows colleges to voluntarily correct their practices prior to losing
federal funding and does not issue monetary damages to the complainant. For more information on the OCR
process, please visit http://www.ed.gov/about/offices/list/ocr/complaints-how.html.
A civil lawsuit
is harder to prove than an OCR complaint because it requires that a school has
actual knowledge of the harassment; but, that heightened requirement is
necessary because via a civil lawsuit a student may receive money damages.[33] A student may also request or
exclusively request what is called equitable relief – non-monetary damages like
reforming the college’s policy. If
a student only requests non-monetary damages, a school’s actual knowledge is not
required.[34] The time in which a student must file a
lawsuit from the last date of discrimination, the statute of limitations, is
usually at least a year, so a student has more time to file a lawsuit than an
OCR complaint.[35] The process
of a civil lawsuit is longer than the OCR process as it usually takes several
years. A student will need to
locate an attorney to represent him or her. Security On Campus, Inc. can help students locate an
attorney. Although some attorneys
may require payment, others take cases on a contingency, meaning that they
receive a portion of the money damages only if the student prevails in court,
or a combination of both payment methods.
For more
information, please visit the documents listed in the footnotes, many of which
are located on the Security On Campus, Inc. website
http://www.securityoncampus.org/.
We recommend that you begin by reading the OCR Revised Sexual
Harassment Guidelines.
[1] United States Department of Education, Office for Civil Rights. Revised Sexual Harassment Guidance: Harassment of Student by School Employees, Other Students, or Third Parties. January 2001, at 2.
[2] Id.
[3] Id. at 15.
[4] Id. at 4.
[5] Sonoma State University, OCR Case No. 09-93-2131
[6] Erskine
College, OCR Case No. 04-04-2016
[7] Revised Sexual Harassment Guidance, supra, Id. at 15.
[8] University
of Maine at Machias, OCR Case No. 01-94-6001; Sonoma State University,
OCR Case No. 09-93-2131
[9] Revised Sexual Harassment Guidance, supra, at 18. Please see these guidelines for a listing of the factors.
[10] Id.
[11] Id. at 15.
[12] Id. at 20.
[13] Id.
[14] Id. at 17; Erskine College, OCR Case No. 04-04-2016
[15] Sonoma State University, OCR Case No. 09-93-2131
[16] Id.
[17] Id.
[18] Id.
[19] Id. The investigating officer wrote in his report that the complainants engaged in consensual kissing with the accused student even though the complainants’ allegations do not include consensual kissing and also described the complainants’ use of alcohol as an admission, making the complainants appear to be under investigation, and using terms throughout the report that reference consensual sex.
[20] Erskine College, OCR Case No. 04-04-2016
[21] Georgetown University, OCR Case No. 11-03-2017
[22] Christian Brothers University, OCR Case No. 04-03-2043
[23] 20 U.S.C. 1092(f)
[24] Revised Sexual Harassment Guidance, supra, at 16.
[25] Academy
School Dist. No 20, OCR Case No. 08-93-1023; Mills Public School Dist.,
OCR Case No. 01-03-1123.
[26] Revised Sexual Harassment Guidance, supra, at 16.
[27] Id.
[28] Id. at 16-17
[29] Sonoma State University, OCR Case No. 09-93-2131
[30] Revised Sexual Harassment Guidance, supra, at 20.
[31] Id. at 37. See Footnote 102.
[32] 20 U.S.C. §1092(f)
[33] Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).
[34] Revised Sexual Harassment Guidance, supra, at iv.
[35]
Davis v. Monroe County Board
of Education, 526 U.S. 629, 650 (1999).
While this article contains a discussion of general legal
principles and specific laws, it is neither intended to be given as legal
advice nor as the practice of law, and should not be relied upon by readers as
such. Before taking any action, always check with a licensed attorney in your
jurisdiction to ensure compliance with the law.