by Grady Brown
It has been a rough couple months for U.Va., since Rolling Stone released its, now mostly-retracted, story covering an alleged rape on U.Va.’s campus. While the fraternity mentioned in the article appears to have been falsely accused, the University is still at the forefront of a growing national issue. According to the Washington Post, there were more than 3,900 reported incidents of sexual assault on college campuses across the country in 2012. This was a 50 percent increase over the previous three years. Interestingly enough, University had decreasing reports of sexual assault between 2010 and 2012. Nevertheless, the University faces a reinvigorated federal review of its Title IX compliance.
Title IX, a portion of the Education Amendments of 1972, is perhaps best known for ensuring female athletes have equal scholarship opportunities. Title IX is, more broadly, a federal civil rights law that prohibits education programs and activities that receive federal funding from discriminating on the basis of sex. In fact, federal interpretation of Title IX outlines a process that universities must use when handling cases of sexual assault. The University is currently working with the Office for Civil Rights to review its policies and has been since 2011, but is now open to increased scrutiny about possible Title IX violations.
So what comes next for the school? As the federal government ramps up its investigation, the University might be forced to update and amend policies to fall in line with Title IX or be at risk for loosing federal funding. In late December of last year, Harvard University, an institution facing higher rates of sexual assault than U.Va.,agreed to change their sexual assault policies after an OCR investigation found that the Law School failed to comply with the Title IX’s requirement for a “prompt and equitable response” to complaints of sexual assault. Among many changes, this agreement included revising sexual harassment policies, assuring the safety of any complainant during an investigation, and increasing communication between the Harvard Police Department and the university.
To the credit of U.Va., it has already introduced plans to improve sexual assault policies through a series of statements. While the administration proposed many of its planned changes prior to this academic year and the Rolling Stone article, intense media scrutiny likely changed the University’s plans. Administrators have pledged to increase police presence at the Corner and increase lighting on campus. At the same time, the University is considering a variety of measures to update its policy. The Board of Visitors has already unanimously agreed to adopt a zero-tolerance approach, though it did not define what “zero tolerance” meant.
It’s no secret that the Obama administration has vamped up federal efforts to curb sexual assault cases on college campuses. The Department of Education published a list of more than 50 colleges under investigation for violating federal law – U.Va., of course, is on that list. In 2011, OCR released a “Dear Colleague” letter that the administration has since used to update its policies. The letter represented the Department of Education’s interpretation of Title IX’s applicability to sexual assault on college campuses, as well as a legal framework the Obama administration could use to challenge the current policies of colleges across the country. In essence, it serves as a pointed reminder of universities’ responsibilities when handling sexual assault cases on campuses.
The letter, arguably, helped to shape further legislation. In 2013, President Obama signed into law the Violence Against Women Reauthorization Act, which implemented a number of changes to the Clery Act, such as requiring colleges to produce statistics for incidents of sexual assault, domestic violence, and stalking, as well as adopting the FBI’s more inclusive definition of rape. The Clery Act sets crime data reporting and collection standards for most universities.
Some have hailed this move, as it brings needed focus on policies that, in some cases, are clearly outdated and ineffective. A number of polls have highlighted opposition to college sexual assault policies. A 2014 Huffington Post survey of 1000 adults found that only 17 percent of respondents had “a lot” of trust in colleges’ ability to report on sexual assault. The survey had a 3.9 percent margin of error. Furthermore, colleges are currently seeing increased sexual assault reports, as highlighted earlier.
However, there are those that have concerns with the new rules. As the Obama administration pressures schools to change, some worry that hurried responses will not promote effective and fair policies. Specifically looking at the Harvard case, members of the Harvard Law School faculty outlined their concerns for the new policy. They said it “lack[s] the most basic elements of fairness and due process” in an open letter to the administration published in the Boston Globe.
In the letter, the faculty members said the policy fails to ensure adequate representation for the accused, goes far beyond Title IX regulations, and sets up a system where the Title IX compliance officer is in charge of the investigation, prosecution, fact-finding, and appellate phases of sexual assault matters. The system, they said, lacks impartial judgment. U.Va. recently hired two Title IX investigators, in part to address the issue of differentiating staff roles.
Updating a sexual assault policy, however, is tricky. While U.Va. needs to address sexual assault on Grounds, the process must be fair and equitable. The Board has already publically committed to a zero-tolerance policy, but we know few specifics and do not know if such a harsh stance is the most effective. As well, the Obama Administration’s interpretation of Title IX requires universities to use a preponderance of evidence standard when adjudicating cases, essentially requiring 51 percent confidence to convict. This has become the norm, as close to 80 percent of colleges now use preponderance of evidence.
While these two policies don’t necessarily need to go hand-in-hand, the University could utilize both to take a strict approach to sexual assault. Amongst numerous cases of sexual assault at the University, there has yet to be an expulsion. Assuming a zero-tolerance policy that automatically expels students found guilty, based on a preponderance of evidence standard, this could create an unfair system. Others argue that stronger penalties are necessary to adequately punish offenders.
While stricter penalties can deter certain behaviors, this dangerous combination of strict penalties and low threshold for conviction opens the college up not only for false convictions, but for lawsuits – a growing trend across the country. As Harvard Law professors have argued, Universities are feeling the pressure to strengthen sexual misconduct policies. However, sometimes these policies overcorrect and severally limit due process for the accused. There are examples of students who felt their due process was violated and they were punished, despite the lack of a fair hearing and a significant amount of exculpatory evidence.
Some have suggested that colleges should remove themselves from sexual assault cases all together. As the Obama administration and recent figures have touched on, schools have not adequately handled sexual assaults on campuses. The criminal system may be better trained to adjudicate sexual assault cases with no need for universities to enact a parallel adjudication process.
However, as a clear violation of Title IX, this opens up U.Va. to punitive measures from the federal government, likely resulting in the loss of federal funding. U.Va. had aresearch budget of $330 million in 2012 and $240 million of that money came from federal funding. At the same time, Universities have a vested interest in preventing sexual assaults on campus. In fact, in a landmark case, Alexander v. Yale, courts validated Title IX as a tool and mandate for schools to have an active role in preventing sexual assault. Thus, universities utilize a separate process to handle matters internally that the criminal system might not have jurisdiction over, such as employment. Some non-violent sexual harassment cases may require reprimand, even if there is no conviction within the legal system.
Simply put, U.Va. is faced with a myriad of procedures they could implement to update their sexual assault policies. In general, a simple, yet consistent process for handling sexual assault should guide administrators. Both parties in an investigation should be adequately interviewed and allowed equal opportunity to present and defend evidence. The committee considering that evidence should be rigorously trained on sexual assault.
Ultimately, a one size fits all, zero tolerance approach may not prove as effective as looking to alternative options when possible. In a recent TED talk, Dean of Students Allen Groves discussed his opposition to zero tolerance policies and the need for the University to focus on rehabilitation and risk prevention. It is also important that the University also works to increase support and encourage reporting of sexual assaults. According to the Department of Justice, 80 percent of rapes among college women go unreported. That figure is over 20 percent higher than non-student women of the same age.
Perhaps it is in the University’s best interest to couple a new policy with continued education on sexual assault, support and encouragement of increased reporting, and rehabilitation options for accused students of minor sexual harassment cases. All of this must occur while creating an equitable system that ensures both due process and equitable treatment for both parties.