In 2011, the U.S. Department of Education Office for Civil Rights (OCR) issued a "Dear Colleague" letter to college and university administrators about implementation of Title IX of the Education Amendments of 1972 in regards to campus sexual assault cases. Title IX prohibits discrimination on the basis of sex in education programs or activities in schools that receive federal funding. The letter explains that schools are required to develop and distribute policies regarding sexual harassment, designate a Title IX coordinator to oversee the school's duties, train staff and students in sexual harassment and violence issues, and establish an investigation procedure and an adjudication process. The letter did not articulate specific procedural safeguards, rules for the examination of evidence, or guidelines for the conduct of adjudication or hearing processes for cases of campus sexual violence.

This lack of specificity allowed colleges and universities to develop and implement their own procedures, which vary widely from campus to campus. As a result, some schools have implemented procedures that, however well intended, may ultimately be judged as arbitrary and capricious - opening the gate for lawsuits from either an alleged victim who may feel that he or she was not adequately heard or from an accused individual who feels unjustly punished. In the end, determination of the believability of the alleged victim and the punishment of the accused is in the hands of school officials.

Title IX Standards and Campus Sexual Assault Liability

Campus sexual assault and violence in higher education institutions is a pressing civil rights issue. When students are sexually assaulted or harassed, they are deprived of equal and free access to an education. It is also a matter of law; sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.

A report of student-on-student sexual harassment on campus is not enough to demonstrate a Title IX violation. The school's actions in response to a complaint are key to a school's liability. Federal courts have held that there is no violation of civil rights laws if harassment occurs, as long as the school investigates an allegation in good faith. Disputes often rest on this question. In a recent article, I discussed Title IX as it applies to elementary and secondary schools. In this article, I reinforce that Title IX is also applicable to colleges and universities that accept federal funding, and that its misapplication can result in a lawsuit against the school.

Critical Elements of a Title IX Lawsuit Applied to Campus Sexual Assault Cases

A Title IX lawsuit will focus on the college's handling of sexual misconduct, complaints, investigations, and training of staff. As an example, in J.K. v. Arizona Board of Regents, a federal court in 2008 rejected Arizona State University's argument that it was not responsible under Title IX when a campus athlete raped a student, even though ASU had previously expelled the athlete for severe sexual harassment of multiple other women on campus. Under the settlement, ASU awarded the plaintiff $850,000 and agreed to appoint a student safety coordinator to review and reform policies for reporting and investigating incidents of sexual harassment and assault. In a 2006 case, Simpson v. University of Colorado, a federal court found that there was sufficient evidence to suggest that the university acted with deliberate indifference toward two students who were sexually assaulted by student football players and recruits. In settling the case, the university agreed to hire a new counselor for the Office of Victim's Assistance, appoint an independent Title IX advisor, and pay $2.5 million in damages.

Implementation of Professional Standards

A July 12 New York Times article, "Reporting Rape, and Wishing She Hadn't: How One College Handled a Sexual Assault Complaint," illustrates what can go wrong when schools fail to adhere to professional standards, don't train staff, or in appropriately investigate a complaint.

Professional standards include implementation of federal and state statutes, regulations and advisories, and institutional policies, as well as explicit and implicit contracts and the reasonable administrator standard (whether a reasonable administrator agree that the college or university had a duty to act in a certain way under the circumstance). College policies must adequately reflect these standards. School officials' conduct must be consistent with good policy.

The question of whether a college or university met the professional standard of care is determined by answering the question: "Did the school, through its administration and/or other employees, act appropriately and reasonably under the circumstance?"

The question of appropriateness is answered by reviewing the professional standards and comparing them against the school's actions. As an example, the federal standard (34 CFR §106.8[b]) requires a college or university to adopt and publish grievance procedures providing for prompt and equitable resolution of complaints. Did the school adopt and publish a grievance procedure? Did it provide for prompt and equitable resolution of a complaint?

The question of reasonableness is answered by analyzing the facts as gleaned through a review of such documents as the grievance report, police reports, transcripts of the disciplinary hearing, and training documents. Did the school act promptly once it knew or had reason to believe that a student was sexually harassed or assaulted? Did the school provide an equitable resolution to the complaint of campus sexual assault? Was the process of investigation thorough and fair to all parties? Was the disciplinary hearing impartial, unbiased, and evenhanded?

Inadequate Due Process in Cases of Campus Sexual Violence

In the Times article, reporter Walt Bogdanich described the plight of an 18-year-old freshman on the campus of Hobart and William Smith Colleges in central New York. In describing the process followed by the school, Bogdanich demonstrated - and I agree - that the school was ill prepared to evaluate an allegation of a campus sexual assault. I also agree with the reporter's assertion that this case illustrates how school disciplinary panels are "a world unto themselves, operating in secret with scant accountability and limited protections for the accuser or the accused."

In this case, three football players were accused of sexually assaulting the freshman at a party. Later the same night, a friend found the student in another location on campus, arriving to see one of the athletes raping her. No one, including the victim and the student who observed the assault, initially reported the behavior. Because the school had no actual knowledge of this behavior, it had no duty to act at that time.

The Title IX standard is that if a school knows or reasonably should know about student-on-student harassment or abuse, the school must take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.* Shortly after this incident, the student reported events to campus security. Security completed a report, and the college disciplinary committee convened to determine the believability of the victim, witnesses, and alleged assailant and to dole out discipline.

The college investigated the campus sexual assault report, held a hearing, and cleared those allegedly responsible in a space of 12 days. Even though one might praise the school for acting swiftly, a closer look must be given to the process of the review and training of those making the decision.

The "Dear Colleague" letter mentioned previously clearly sets the standard: The school's inquiry must in all cases be prompt, thorough, and impartial. The three elements - prompt, thorough, and impartial - should be executed in the context of the professional standard of care. In this case, the investigation was prompt. But I would argue it was not thorough and impartial.

A three-member panel convened behind closed doors to adjudicate the student's complaint. According to the Times, the panelists "acted as prosecutor, judge, and jury, questioning students and rendering judgment."

There is no evidence in the record, the Times reported, that those sitting on the panel were trained in sexual harassment and abuse issues. The victim's attorney scoffed at the "absurdity" of the questions asked during the review by one panelist, who asked the witness whether he had seen the accused student's penis in the victim's vagina or if he had just seen them having sex. Any reasonable school employee who is appropriately trained to participate in such a panel would agree that this question demonstrates lack of training - implying a breach of the professional standard of care.

Members are supposed to be trained for this type of assignment. Indeed, OCR states that training for administrators, teachers, staff, and students can help to ensure that they understand what types of conduct constitute sexual harassment or violence, identify warning signals that may need attention, and know how to respond.

According to OCR, all persons involved in implementing grievance procedures, including investigators and adjudicators, must have training or experience in handling complaints of sexual harassment and violence as well as knowledge of the school's grievance procedures. In sexual violence cases, the fact finder and decision maker also should have commensurate training or knowledge about sexual violence. For instance, if an investigation or hearing involves forensic evidence, that evidence should be reviewed by a trained forensic examiner.

Summary

If a college has appropriate policies, adequately distributes those policies, appropriately trains its staff to investigate complaints of campus sexual assault or harassment, and conducts an unbiased hearing, then there is little an alleged victim can present if he or she disagrees with the decision of the disciplinary panel. If, on the other hand, the facts demonstrate that policies were nonexistent, not representative of the professional standard of care, or not adequately distributed to staff and students, or that those sitting on the panel were inadequately trained and the hearing was conducted contrary to the professional standard of care, then the victim or the perpetrator might present a convincing argument for appealing a panel's decision.

In this case, the school may have failed to meet the professional standard of care. If it happened at this school, it is likely happening at colleges and universities around the country. That failure can leave schools liable for incidents involving campus sexual assault and harassment, and can result in expensive lawsuits and settlements.