Explainer: Why are so many universities getting investigated by the Department of Education for how they handle campus sexual assault?

Originally published 5/1/2014.

UPDATE: The post has been updated to reflect the fact that on May 1, 2014 around 11 a.m., the White House released a list of the 55 colleges and universities facing sexual assault investigation.

The next time you’re at the movies, it’s likely you might see a 60-second PSA in which stars like Steve Carell, Dulé Hill and Daniel Craig talk about the importance of making sure you receive consent from your sexual partner.

The White House – at the urging of advocates like the young people behind the Know Your IX network – has released the results of the first ever-federal task force (here’s the fact sheet) on sexual assault that happens on college campuses.

As NPR News explains, it “provide colleges with basic guidelines for dealing with sexual assault cases; it also sets up a national reporting system that asks schools to survey their students about their experiences.”

It is also launching social media campaigns, including a new .gov website of resources for sexual assault victims and the 60-second PSA that is clearly directed toward the small percentage of men who commit rape.

Among advocates, there’s been some criticism about the report and the accompanying materials – including the strong focus on men who rape women – but many agree that it’s an important first step.

Groups like The Foundation for Individual Rights and Freedom worry it jeopardizes student due process rights.

Meanwhile, the Department of Education has publicly confirmed an unprecedented uptick of investigations into allegedly botched sexual misconduct cases at colleges and universities, many following the filing of high-profile student complaints.

Between 1998 and 2008, federal officials completed 25 investigations into violations of Clery Act and at least 24 investigations into Title IX investigations.

A wave of protest and news investigations revealed that during that time period, the Education Department routinely failed to investigate instances when colleges improperly handled misconduct cases, with many failing to expel students found guilty of rape and/or sexual assault.

The Center for Public Integrity, for example, found:

Students found “responsible” for sexual assaults on campus often face little or no punishment from school judicial systems, while their victims’ lives are frequently turned upside down, according to a year-long investigation by the Center for Public Integrity. Administrators believe the sanctions administered by the college judiciary system are a thoughtful way to hold abusive students accountable, but the Center’s probe has discovered that “responsible” findings rarely lead to tough punishments like expulsion — even in cases involving alleged repeat offenders.

Since then, the Education Department has confirmed at least 25 colleges and universities are currently under Clery Act investigation and 14 under Title IX investigation for sexual violence-related complaints.

But who’s under investigation has long been shrouded and undisclosed.

**UPDATE: On May 1, 2014, the department for the first time made public a list of the 55 colleges and universities currently under Title IX investigation for possible violations of federal law over the handling of sexual violence and harassment complaints. See below for a list of all schools. ** 

So, why are there so many investigations, and why do the feds get involved in the first place? 

Here are some answers to common questions about sexual assault on college campuses.

* Why do universities need to be involved at all? Isn’t this a crime that should be handled by the courts?

Supporters of such investigations say it’s important for students to be able to access more immediate remedies that only schools can provide, like being able to change their housing or classes. Federal laws have been passed and interpreted to put this more concretely: students who have been sexually assaulted have a civil right under federal law to get this kind of assistance on their college campus.

And for those who choose not to report, whether for personal reasons or concerns about the ability of criminal courts to handle sexual assault cases, some say university hearings can provide a way for students to be held accountable to a college’s community standards, which often includes rules like respect for others in addition to a policy against sexual assault committed on community members by students, faculty and staff.

Some students choose to report the crime in their community while also going through a school judicial process. Dartmouth College’s security team, for example, has a memorandum of understanding with the Hanover Police Department and alerts them whenever a crime involving sexual assault is reported on school grounds. The person who reports is supplied with information about how to pursue the case criminally, and can choose whether or not his/her name is attached to the report.

Groups like FIRE and the American Association of University Professors worry that the “preponderance” standard (a civil standard used in many college sexual conduct hearings, most notably excluding Princeton University) doesn’t provide enough legal protections to falsely accused students or faculty members.

There’s also concerns over the new White House guidelines:

Mark Hathaway, a Los Angeles attorney representing several students accused of sexual assault, said he remained concerned that those accused in campus cases are not given the rights to an attorney, to remain silent and to confront witnesses against them.

“Greater education about the problem is always useful and helpful to prevent sexual assault,” he said. “But at the same time, we cannot forget the rights constitutionally afforded each of us. You shouldn’t have to give up those rights just because you go to a college that receives federal funding.”

* So what are these federal laws?

There are two main laws, the Clery Act and Title IX of the Education Amendments of 1972.

The Clery Act say that all colleges and universities who get federal money have to publish crime statistics and have clear policies regarding áreas like alcohol and drug consumption and sexual assault

Title IX and decades of accompanying statutes, court decisions and guidance letters require schools to immediately investigate sexual harassment and violence and provide certain services, like academic or housing adjustments, to both the accused and accuser. 

The main idea: these laws say colleges deprive students of their right to equal access to education when they fail to properly address sexual assault, creating a “hostile environment” and discouraging students from reporting or pursuing disciplinary action against sexual misconduct.

* What are some examples of Title IX or Clery violations?

An incomplete database of Title IX/Clery investigations that I made during my research can be found here. There have been several cases in which colleges admitted to covering up sexual assaults or having punished students for coming forward.

In 2001, the Office of Civil Rights said Tufts University needed to:

* Have a designated Title IX coordinator

* Broaden sexual harassment training and revise sexual harassment procedures,

* And implement new services including a hotline and a walking escort service.

This week, the department has found that Tufts “failed to comply with Title IX of the Education Amendments of 1972 to address sexual assault and harassment issues.” Tufts officials disagree with the findings, saying:

The central office would not meet with us, would not talk to us and would not give us any details about what they found,” University President Anthony Monaco said. “I could not, hand on heart, keep us within that agreement.” 

Following the rape and murder of a female student at Eastern Michigan University student, EMU received a $375,000 fine (later reduced to $350,000) for failing to issue a “Timely Warning” in response to to the homicide investigation, among other issues.

* Who exactly conducts the investigations?

The Education Department’s Office of Civil Rights conducts Title IX investigations, while the department’s Federal Student Aid division conducts Clery Act reviews under the newly-created Clery Act Compliance Division. Previously, Clery Act reviews were done by regional offices mainly trained in federal student aid fraud.

* What happens to schools if they are investigated or found guilty?

Fines: Clery violations can trigger up to a $35,000 fine, while Title IX violations can cut off federal funding, though the Education Department’s Office of Civil Rights has never gone that far.

Since 2009, 34 Clery investigations have resulted in levied $1.5 million in fines for 13 colleges, according to analysis of an online database of decisions.

Liability: According to a 1992 Supreme Court decision, colleges may also face private lawsuits from students alleging sexual harassment-related Title IX violations if it can be proven they acted with “deliberate indifference.” From 2006-2010, United Educators, alicensed insurance company owned and governed by 1,200 educational institutions, received 262 claims of student-perpetrated sexual assault which generated over $36 million in losses. Colleges also face liabilities from students falsely accused of sexual assault – in 2011, a jury awarded $26,500 to a former student of Sewanee: University of the South for unfairly handling a 2008 rape accusation.

Reputational Risk: As noted in Title IX/Clery Act compliance slideshows, training manuals, and a recent publication by the Association of Governing Boards of Universities and Colleges, colleges found to be noncompliant face damage to the institution’s reputation.

Caveat: The Education Department has never revoked a school’s funding for sexual-assault related Title IX failures, which they say allows them to better work with schools on coming up with voluntary agreements that address a wide variety of issues.

Alternatively, the Know Your IX network argues:

It is unconscionable that, in ED’s entire history, the agency has never once sanctioned a school for sexual violence-related violations of Title IX. Such tolerance allows institutional abuses to go unchecked at students’ expense. We hope that legislators will step in to fill this gap in the Task Force’s recommendations by providing the OCR with new tools to hold schools accountable and protect students’ civil rights. For example, we ask Congress to empower the OCR to levy intermediate fines for Title IX violations. Currently the OCR has only two options at its disposal: revoke all federal funding — which would be devastating for students, particularly those dependent upon federal financial aid — or do nothing at all. Intermediate sanctions would allow the OCR to hold schools accountable without hurting students in the process.

* So why are so many schools getting investigated?

In short, after years of alleged lax enforcement, a wave of student activism, high-profile sexual assault cases, clearer federal guidance and partnerships with the FBI and the Department of Justice, federal officials have upped the ante on investigations.

The Justice Department in 2005 estimated that up to 63 percent of colleges and universities were not fully compliant with Clery Act, and many secondary institutions have complained of unclear guidance and the burden reporting requirements place on smaller schools.

An award-winning investigation by Center for Public Integrity and NPR in 2010 also spurred renewed attention among lawmakers, leading to the release of the 2011 Dear Colleague letter reminding college’s of their Title IX responsibilities, which includes using the same lowered burden of proof as required in civil rights case – the preponderance of evidence standard. Last year’s passage of the Violence Against Women Act included the Campus SaVE Act, which expands the type of criminal statistics colleges must collect to dating violence and stalking and requires colleges to be Clery and Title IX compliant by October 2014.

As previously noted, the White House’s guidelines released this week have also included some clear guidelines for colleges and universities when it comes to what their sexual assault policies and programs should look like. Most notably, the guidelines include recommendations that colleges “adopt prevention programs that have been shown to work and… conduct anonymous surveys to gauge how often sexual violence happens on their campuses—and how often students report it to the authorities”.

A network of students– and in some instances, staff – have banded together to help each other file high-profile federal complaints against their schools, many of whom are now working with outside lawyers to make sure they’re complaint with federal law.

The Clery Center for Security on Campus provides free guidance and webinars on compliance to colleges and universities, while the National Center for Higher Education Risk Management group has worked with schools for years on compliance.

* So how do I know if my school has been investigated, is under investigation, or has a non-compliant sexual assault policy?

Since January 2013, groups of students and college administrators have submitted Clery Act and Title IX complaints against Dartmouth College, University of Southern California, University of Colorado-Boulder, University of North Carolina-Chapel Hill, University of California-Berkeley, Swarthmore College and Occidental College.

Officials have individually confirmed Title IX investigations at all but Berkeley, and are still investigating Harvard Law SchoolPrinceton University, and University of Virginia. Current Clery Act reviews likely include Marquette University, Penn State University and University of North Carolina-Chapel Hill.

Clery Act decisions are available publicly online because Clery law mandates such disclosure, while Title IX decisions are typically not publicly shared, though the OCR has posted a few sexual harassment/assault cases online, which typically end in voluntary resolution agreements – when a school agrees to work with the feds to implement better sexual assault policies and programming. The activist group Students Active For Ending Rape has a database of sexual assault policies at colleges – if you make an account, you can search the database for your school and SAFER’s analysis of the strength of their programs. Their October 2013 analysis showed that 80% of the university sexual assault policies they reviewed failed to fully meet Title IX/Clery Act standards.

UPDATE: Colleges under Title IX investigation by state:

STATE INSTITUTION
Arizona Arizona State University
California Butte-Glen Community College District
Occidental College
University of California-Berkeley
University of Southern California
Colorado Regis University
University of Colorado at Boulder
University of Colorado at Denver
University of Denver
Connecticut University of Connecticut
DC Catholic University of America
Florida Florida State University
Georgia Emory University
Hawaii University of Hawaii at Manoa
Idaho University of Idaho
Illinois Knox College
University of Chicago
Indiana Indiana University-Bloomington
Vincennes University
Massachusetts Amherst College
Boston University
Emerson College
Harvard College
Harvard University—Law School
University of Massachusetts-Amherst
Maryland Frostburg State University
Michigan Michigan State University
University of Michigan-Ann Arbor
North Carolina Guilford College
University of North Carolina at Chapel Hill
North Dakota Minot State University
New Hampshire Dartmouth College
New Jersey Princeton University
New York Cuny Hunter College
Hobart and William Smith Colleges
Sarah Lawrence College
Suny at Binghamton
Ohio Denison University
Ohio State University
Wittenberg University
Oklahoma Oklahoma State University
Pennsylvania Carnegie Mellon University
Franklin and Marshall College
Pennsylvania State University
Swarthmore College
Temple University
Tennessee Vanderbilt University
Texas Southern Methodist University
The University of Texas-Pan American
Virginia College of William and Mary
University of Virginia
Washington Washington State University
Wisconsin University of Wisconsin-Whitewater
West Virginia Bethany College
West Virginia School of Osteopathic Medicin

This post will be part of a once-in-a-while blog series on this issue.

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