Today the White House issued the “first” report from its task force on sexual assault.  The Report provides a number of recommendations for colleges and universities and is a “must read” for any administrator charged with any aspect of Title IX compliance. Among the items addressed in the Report are the following:

• Campus Climate Surveys.  The Report begins by noting that the first step in solving a problem is to identify it.  To assist institutions in identifying problems on their campuses, the Report provides a “toolkit" for conducting a Campus Climate Survey.  The Report suggests that an institution that is “serious” about addressing the problem of sexual assaults will voluntarily conduct a survey.  It also indicates that the government will be exploring legislative or administrative options to require schools to conduct a survey in 2016.
• Engaging Men.  The Report presses institutions to engage men as “allies” in the cause to combat campus sexual assaults, noting: “Most men are not perpetrators – and when we empower men to step in when someone’s in trouble, they become an important part of the solution.”  Towards this end, the Report offers information on “Bystander-Focused Prevention of Sexual Violence.”
• Effectively Responding.  A major component of the Report is its emphasis on institutions’ need to effectively respond to complaints of sexual assault by students.  The Report discusses a host of issues related to policy language and investigation and hearing procedures.  (The Report is detailed in this regard and contains far more than can be covered in a single blog post.  Future posts will explore specific topics in more detail.) 

One of the most intriguing aspects of the Report is its encouragement for institutions to have a confidential resource with whom victims can talk and from whom they can receive advice and support that does not require the commencement of an investigation, if the victim is not ready to take that step.   Until this point, the issue of confidential campus resources (meaning whether such confidential resources are permissible and, if so, who could be designated as a confidential resource) has been a subject of much speculation and confusion.  According to the Report, institutions should “make it clear up front, who on campus can maintain a victim’s confidence and who can’t – so a victim can make an informed decision about where best to turn.”  The Report provides institutions with sample language for a confidentiality protocol. Interestingly, this sample language indicates that institutions are permitted to have “confidential” advocates (including non-professionals) who, if contacted, would keep the Title IX Coordinator informed of the general extent and nature of the incident, but would provide no personally identifying information to the institution and would not trigger an investigation.  These individuals are distinguished from “responsible employees” who have a different reporting role and whose receipt of a report will generally trigger an investigation.  Issued with the Report is an extensive “Q&A" from OCR, which provides more detail as a follow up to its April 4, 2011 “Dear Colleague Letter” and also addresses this use of confidential advocates among many other issues). The Report also includes a Checklist for Campus Sexual Misconduct Policies to assist institutions in drafting and/or reevaluating their own misconduct policies.  

• Transparency.  The Report affirms the government’s commitment to making enforcement efforts more transparent.  Towards that end, it has created a new website, NotAlone.gov to “give students a roadmap for filing a complaint if they think their school has not lived up to its obligations.”  It also notes that OCR is strengthening its enforcement procedures by instituting time limits on negotiating voluntary resolution agreements, making it clear that institutions should provide victims with interim relief (such as housing or schedule changes), that OCR should make itself more visible on campus during investigations, and that OCR should improve its coordinating efforts with the Department of Justice.

The above merely touches upon the highlights of the Report.  Over the coming weeks, we will provide more information about the details of the Report and its accompanying documents.  For now, one thing seems clear: the federal government is signaling an even greater enforcement effort with respect to sexual assault on campus.  All colleges and universities should take this opportunity to review their current policies and procedures, in light of the Report and its recommendations, as the Report is clearly the government’s new roadmap.

Recent articles and postings not only highlight the continuing focus on sexual assault cases on college campuses by the victims of those assaults, but also on the threat of litigation by those accused of the assaults.  In the past two years, at least half a dozen actions have been brought against institutions by those accused, generally alleging various issues with the handling of their cases.  A recent decision by a federal court in Ohio, in Wells v. Xavier University, illustrates institutions’ potential liability to the accused. In this case, a student athlete at Xavier was accused, falsely he claimed, by another student of a sexual assault.  The University’s Conduct Board found the student responsible for a “serious violation” of the Code of Student Conduct.  At some point, the University apparently issued a statement, naming the student, and indicating that he was “found….responsible for a serious violation of the Code of Student Conduct” and that he was expelled from the University. The expelled student brought an action against the University raising a number of claims.  Among other things, he asserted that he did not in fact commit a violation of the Code of Student Conduct, serious or otherwise (he claimed that any sexual encounter was consensual), that it was apparent to the community that the University’s statement was referring to a sexual assault, and that he had therefore been libeled.  In addition, he claimed that his rights under Title IX had been violated by the University’s conduct because it was reacting against him, erroneously, as a male and in response to several OCR investigations critical of how the University had responded to past sexual assault cases involving other students. The University moved to dismiss these two claims, arguing that as a matter of law they failed to state a claim upon which relief could be granted.  The Court denied this request, allowing both of these counts to proceed.  Specifically, the Court concluded that the University’s statement (in the context of the student’s allegations that the Conduct Board was ill equipped to conduct a hearing on such a serious matter, that outside government authorities (the prosecutor) had questioned the outcome of this internal process, and that press coverage demonstrated damage to the student’s reputation) supported the libel claims.  As the Court noted:

[I]t appears to the Court that the [hearing body], a body well-equipped to adjudicate questions of cheating, may have been in over its head with relation to an alleged false accusation of sexual assault.  Such conclusion is strongly bolstered by the fact that the County Prosecutor allegedly investigated, found nothing, and encouraged [the University’s President] to drop the matter.  Plaintiff’s allegations suggest [the President] did not do so due to Xavier’s mishandling of other cases that were at nearly the same time, subject to investigation by the OCR.

This, the Court concluded, was enough to allow the claim to proceed.  In addition, the Court allowed the Title IX claims to proceed because the plaintiff adequately pled that the University had engaged in a pattern of decision-making that resulted in an alleged false outcome for him, in response to other OCR investigations.  The Court also found that, at this early stage, the allegations were sufficient to support a claim of deliberate indifference by the institution because, he alleged, despite warnings from the prosecutor that the allegations against him were unfounded, the University proceeded with internal hearings “with the goal of demonstrating to the OCR that Xavier was taking assault allegations seriously.” Of course it remains to be seen whether the plaintiff in this case will be able to prove any of these allegations.  But at this stage the only question for the Court was whether, if his allegations were taken as true, they would form a basis for liability, and it answered in the affirmative. This case serves as just one more reminder for institutions of the need to tread very carefully in the context of sexual assault cases.  While they must be mindful of the victims’ rights, and protecting the campus community from further acts of misconduct, they too must be sensitive to the rights of the accused.  Careful review of policies to ensure that they meet the requirements of state and federal law for both the accuser and the accused, training of those charged with applying those policies, and sensitivity to the rights of the individuals charged, are necessities.  Institutions face potential liability from “both sides” and they need to know the proper path to walk.