Ariel Sullivan: Illegal procedure? Title IX and sexual assault

Via our friends at the New England Journal of Higher Education, part of the New England Board of Higher Education  (nebhe.org) BOSTON Florida State University quarterback and Heisman Trophy winner Jameis Winston was recently cleared of sexual assault charges following the university’s two-day investigative hearing. The high-profile investigation was launched under Title IX, which requires schools to investigate such allegations even in the absence of criminal charges. Winston’s attorney immediately took to his Twitter account to share the news of the outcome—the finality of which is pending any appeal by the complainant—and provide the following emphasized excerpt from the hearing panel’s decision “In sum the preponderance of the evidence has not shown that you are responsible for  any of the charged violations of [FSU’s Misconduct] Code.”

While most institutions do not face such intense public interest and ongoing media coverage of their Title IX investigations—typically reserved for cases involving Division I athletes—many are scrutinized by their campus community and the media for the way that they respond, or fail to respond, to allegations of sexual assault. Tack on the fact that nearly 100 colleges and universities are currently under investigation by the U.S. Department of Education’s Office for Civil Rights (OCR) for possible violations of Title IX, and the conclusion is clear: Colleges need to be better prepared to respond immediately and appropriately to complaints of student-on-student sexual violence in accordance with the law and their internal policies.

OCR attempted to provide guidance to help colleges comply with their Title IX obligations through a 45-page guidance document entitled “Questions and Answers on Title IX and Sexual Violence,” published on April 29, 2014. Since then, colleges have been scrambling to ensure compliance with this latest guidance and avoid becoming the subject of an OCR investigation. This one-sided approach leaves colleges vulnerable to claims of negligence and mistreatment by the accused, whose rights are barely recognized by OCR. Moreover, OCR’s guidance does not provide answers to the seemingly endless conundrums that arise in sexual violence cases, nor is it entirely consistent with other recently promulgated federal regulations. It is therefore of paramount importance that those in charge be capable of handling the competing interests that arise in responding to sexual violence complaints.

Best practices for college officials include:

• Be sensitive to the complainant’s emotions, needs and rights, while ensuring that the rights of the respondent are also met. One of the biggest risks colleges face in responding to sexual violence complaints is a subsequent claim or lawsuit by the complainant or the respondent. With regard to the complainant, such claims often stem from her perception that campus officials were not sensitive in the way that they spoke to the complainant throughout the process. OCR states that those in charge of responding to sexual violence complaints have training or experience working with and interviewing persons subjected to sexual violence, including the effects of trauma and associated neurobiological change, appropriate methods to communicate with students subjected to sexual violence, and cultural awareness regarding how sexual violence may impact students differently depending on their cultural backgrounds. By providing such training to those with responsibility for carrying out their Title IX procedures, colleges will help to ensure that appropriate sensitivity is employed in working with complainants. At the same time, they must ensure that their sensitivity toward the complainant does not infringe on the respondent’s right to a fair and impartial investigation, which is often the crux of subsequent claims brought by respondents.

• Employ interim measures to assist the complainant throughout the process, but ensure that the measures taken are reasonable and appropriate under the circumstances. For example, a complainant may ask the college to immediately suspend the respondent or bar the respondent from campus while the investigation is pending. Notably, such interim measures are not suggested in the OCR’s guidance. The practical approach is to employ such severe interim measures only in in the presence of aggravating factors such as the use of a weapon, threats of future violence, a group assault, or multiple claims against the same respondent.

• Be communicative and transparent about the complaint and the process, while remaining confidential and adhering to privacy laws. Like the sensitivity issue addressed above, subsequent claims arise from a perceived lack of communication regarding the process. Therefore, colleges should communicate with the complainant and respondent on a regular basis, and respond to their questions in an equal and impartial manner. At the same time, colleges should develop procedures for addressing concerns and inquiries from parents, students and the media related to Title IX investigations, in accordance with federal privacy laws and consistent with public relations objectives.

• Review and update Title IX policies in accordance with the Violence Against Women Reauthorization Act (“VAWA"), despite OCR’s suggestion to the contrary. OCR’s guidance insists that VAWA has no effect on a school’s obligations under Title IX. However, the final VAWA regulations published on Oct. 20, 2014, and effective July 1, 2015, indicate otherwise. Indeed, with regard to the presence of an advisor, the new VAWA regulations require colleges to allow both parties to be accompanied to any proceedings “by the advisor of their choice,” while OCR’s guidance merely states that if the college allows one party to have an advisor at the proceedings, it must do so equally for both parties.

• Develop and implement a memorandum of understanding (“MOU”) with local law enforcement that will allow the college to meet its Title IX obligations to resolve complaints of sexual violence promptly and equitably. The MOU should delineate responsibilities for responding to and investigating incidents and reports of sexual violence on and off campus, as well procedures for sharing information about students and employees who are the victim of, a witness to, or an alleged perpetrator of an offense of sexual violence.

As colleges bear more responsibility and are subjected to greater scrutiny than ever before in carrying out their obligations under Title IX, it is more important than ever for those in charge to follow these and other best practices to guide them in responding immediately and appropriately to reports of student-on-student sexual violence.

Ariel Sullivan is a partner in the Massachusetts law firm Bowditch & Dewey. She concentrates her practice in all aspects of labor and employment law.