The "Dear Colleague" letter arrived in the inboxes of college and university administrators around the country in April 2011.
The 19 pages of legalese from the U.S. Department of Education’s Office on Civil Rights marked the beginning of the Obama administration’s all-out push to eliminate what has long been described as an epidemic of sexual violence on U.S. college campuses.
Using Title IX of the U.S. Civil Rights Act, the department laid out a new set of responsibilities for colleges and universities that receive federal funds. It required them to develop a disciplinary process to investigate sexual violence claims, protect victims and punish those students found to be perpetrators.
Signed into law in 1972, Title IX is known mostly for sports equality. It prohibits sex discrimination in all education programs and activities that receive federal funding, including requiring equity between men’s and women’s sports. In issuing the "Dear Colleague" letter, the Obama administration expanded the scope of Title IX to include sexual violence, and required schools to take steps to eradicate it.
Fast forward three years to Columbia University in the spring of 2014, when a female student began carrying a mattress around the campus to protest the university’s decision not to expel a fellow student after a campus tribunal cleared him of her accusation of rape. As the woman’s protest drew increased media attention, the accused man sued the university, arguing that the university allowed the woman to damage his reputation. His case is pending.
In a separate case, a state court judge in San Diego ruled on July 14 in favor of a University of California San Diego student who had been suspended after a university investigation and trial found him guilty of sexual misconduct. The judge ruled that the university’s process prevented him from fully confronting and cross-examining his accuser, violating his right of due process.
That case and dozens of other lawsuits, most filed by students who have been accused, have led some to question whether the federal government – in its efforts to eradicate sexual violence on campus – may have charged universities with a task they’re not equipped to handle. They also fear that in the rush to help survivors of sexual assault, some universities have adopted processes that are not always fair to the accused.
But it also raises a larger question: How can colleges and universities deal with a crime that has apparently flummoxed the criminal justice system, as its limitations drive victims away?
"We haven’t yet asked why people are avoiding the criminal justice system," said Emily Springston, who is the Title IX coordinator for the IU system. "Obviously, the higher standard of evidence is a factor, but it still raises the question: ‘Why is higher education dealing with this?’ "
Neela Chaudhry disagrees. Chaudhry, who is senior counsel and director of equal opportunities in athletics at the National Women’s Law Center, argues that colleges and universities should be rigorous in their efforts to eradicate sexual assault, and they should be doing so in just the ways prescribed by Title IX, as part of their responsibility to provide equality of educational opportunity for college women.
She also believes that the legal challenges to Title IX decisions filed by accusers won’t derail institutional efforts to follow the law.
What does Title IX require?
The "Dear Colleague" guidelines became law in 2013 with the passage of the Campus Sexual Violence Elimination Act, which expanded the definition of sexual assault to include stalking, sexual coercion, sexual battery and dating violence. The law includes same-sex assaults under the overall definition of sexual violence.
"Title IX morphed into something much larger than it began," said Christine Marcuccilli, the Title IX coordinator at IPFW. "And it makes perfect sense to do what they did under the law. Of course, you can’t learn if you’re scared of your stalker who’s in class with you."
When student accusers file Title IX complaints with the university, the university must investigate the claim and determine whether the incident violates Title IX using what legal experts call a "preponderance of evidence" standard. This means that it is more likely than not that the incident occurred. This is different from a criminal complaint, in which prosecutors must prove that a crime occurred "beyond a reasonable doubt."
If the evidence against the accused student meets the standard, the university must discipline the student – often with a suspension or expulsion. The university must also ensure that the accuser feels safe and protected throughout the process, which can include changing class schedules or living situations to avoid the accused. All this must be accomplished under a deadline set by the law.
The Department of Education carries a very big stick with which to enforce Title IX, one it has not hesitated to use. In May 2014, the department released a list of institutions around the country under investigation for possible violations of federal law in the handling of sexual violence complaints. It included IU-Bloomington and Vincennes University.
Not like other crimes
In an ideal world, victims of sexual assault would report the crime to police just as someone would report a stolen lawnmower, but sexual violence isn’t like other crimes. Crimes of sexual violence are unique in that their victims are often blamed for being assaulted – for being drunk, dressing provocatively or walking into a "risky" situation.
While nearly everyone agrees that sexual assault – on or off campus – is among the most underreported of all crimes, President Barack Obama and Vice Joe President Biden were pummeled by their conservative critics in early 2014 when they launched the White House commission on campus sexual assault by citing a 2007 National Institute of Justice study that said one of every five college women will be sexually assaulted during her college years. The critics argue that the study wasn’t a representative sample of students, and that the questions were ambiguous, but subsequent studies have borne out the NIJ study’s conclusion.
In any event, students filing a Title IX complaint with their university have a legal right to a speedy resolution of the complaint, and the law gives institutions the tools to help student victims quickly.
"Under Title IX, we have the ability to change things quickly,’’ Marcuccilli said. "The criminal justice system moves slowly, but we have the ability to ask: ‘What can we do to make you safer?’ And then we can do it."
Chaudhry said the National Women’s Law Center receives numerous complaints from students around the country that some institutions are still refusing to take the Title IX requirements seriously and often balk at conducting a proper investigation – or sometimes any investigation at all. She also believes Title IX’s sexual violence requirements shouldn’t be a burden to institutions – and that expecting the criminal justice system to deal with sexual violence misses the point.
"Schools investigate and punish racial harassment," she said. "They have processes in place to handle discrimination. This is also a civil rights issue, and the criminal justice system doesn’t have the authority or ability to address the educational environment. Title IX requires schools to create an educational environment that is free from harassment."
Even as universities navigate a messy, complex legal new world, Title IX is shining a bright light on sexual violence and changing the campus climate that has heretofore allowed it to flourish. And tolerance for "victim blaming" is waning quickly.
"Title IX has absolutely changed the conversation on college campuses nationwide," said Whitney Caudill, vice president for strategic initiatives and external relations at Manchester University and the university’s Title IX coordinator. "It’s an opportunity to change the conversation about sex, about interpersonal communication and respect, to bring old perceptions to light and deal with them."
Higher visibility of sexual assault is translating into more awareness among student populations, said Angela Mellon, clinical coordinator at the Sexual Assault Treatment Center in Fort Wayne; she credits Title IX with pushing the issue to the front of student consciousness.
"Students are starting to talk about it more, and they’re more knowledgeable about the risk factors, and what consent means." She said students are also beginning to understand that university staff want to help them, not discipline them for underage drinking or other violations of school policy.
Julie Creek is director of the Office of Diversity and Multicultural
Affairs and coordinator of the Center for Women and Returning Adults at
IPFW. She wrote this for The Journal Gazette.