investigating a reported 80 sexual assaults in the past three years in Missoula, eleven involving students in an 18-month period.
What’s news is not so much that the assaults occurred; sadly, according to a leading study, one in five women who attend college will become the victim of a rape or an attempted rape by the time she graduates. And all too frequently, the result is that the student survivor ends up dropping out of school, if not worse, such as attempting or committing suicide. But what is news is that schools and students alike are now paying more attention to what is an acceptable response from the school.
Title IX prohibits sex discrimination in schools and extends to gender-based harassment and assault. Thus, under this federal law, schools have an obligation to investigate promptly and respond to any complaints of sexual harassment and violence in a fair and equitable manner.
Yet schools’ responses to complaints of sexual harassment and assault are all over the map, ranging from schools that outsource all such investigations to local law enforcement (a practice that courts have found illegal) to adjudicating complaints through existing student disciplinary hearing processes. The fact that campuses are often uncertain about how to handle such complaints adds to the already powerful incentives for student victims not to come forward. Students remain silenced – some estimate that up to 95% of sexual assaults on campus remain unreported – in part because schools’ investigative and adjudicative processes can be so secretive and unfair that the process itself re-victimizes students.
Last year, the Department of Education issued a “Dear Colleague” letter that set out guidelines on what response Title IX requires schools to provide – including guidance on what kinds of procedures will establish a fair and equitable process for the students involved. The letter did not add new requirements, but clarified schools’ responsibilities for addressing reports of sexual violence.
Some schools responded to the guidance by reexamining and amending their procedures. For example, the University of North Carolina has reacted by removing sexual assault cases altogether from the jurisdiction of student disciplinary boards, with the intent of creating a separate process for sexual assault cases, including appropriate training for hearing panel members.
Unfortunately, the Department of Education’s letter has also provoked backlash, such as this letter to the Department of Education from the Foundation for Individual Rights in Education, which argues that students’ due process and First Amendment rights are at risk if the recommended disciplinary hearing safeguards, such as using a “preponderance of the evidence” standard rather than a more stringent burden of proof (such as “clear and convincing evidence” or the “beyond a reasonable doubt” standard necessary to prove a criminal sexual assault charge).
Ultimately, it is an encouraging sign that the federal government is taking proactive steps to enforce these laws by investigating the possible Title IX violations by the University of Montana, as well as local law enforcement’s responses to such charges. But schools, students, and parents need to keep their eyes on the purpose of Title IX: to enable students, regardless of gender, to have equal access to an education. And as long as students continue to feel silenced from coming forward when they have been raped or harassed, or ignored or mistreated by their schools when they do come forward, the system still isn’t working.