Resolving Allegations of Sexual Assault in Accordance With Title IX

Title IX compliance has become an increasing concern for educational institutions. The “Dear Colleague” letter (DCL) issued by the Office for Civil Rights (OCR) at the U.S. Department of Education in 2011 added requirements that change the way institutions must respond to and investigate alleged sexual assault or misconduct. Failure to adhere to these guidelines through proper training, response, and fair investigations can increase emotional distress and result in costly financial and reputational losses for colleges and universities.

Consider the following scenarios, based on UE claims:

• Three women, unhappy with how their small liberal arts college responded to reports of sexual assault, came together to file suit against the institution for Title IX violations. They suggested the institution had an atmosphere that allowed rape to occur—citing failure to advise them of their rights, re-victimization through institutional failure to record interviews, and minimal penalties for the accused with no mandatory expulsion. The subsequent settlements and defense costs reached more than $1 million.
• A student at a mid-size university filed a sexual assault report alleging that a classmate raped her and requested an order barring him from communicating with her. When he repeatedly violated the order, she was told that there was little the school could do to enforce it. She said the university’s inappropriate response forced her to transfer schools. Although she eventually dropped the claim, the institution suffered reputational damage and paid more than $100,000 in legal fees.
• A college freshman was accused of nonconsensual sex with a classmate more than a year after their encounter following a party. The victim didn’t file a police report and didn’t seek medical care, and she sent text messages indicating her consent. However, the male was found guilty of sexual misconduct and expelled. He filed suit alleging that he was not afforded due process and was pre-judged despite a lack of evidence.

While Title IX compliance is a multifaceted issue, there are steps your college or university can take to address OCR and DCL requirements when investigating sexual assault claims. To avoid potential litigation and promote a healthy student atmosphere, institutions should:

• Train staff and students on sexual assault prevention, response, and reporting.
• Designate a Title IX coordinator to oversee compliance efforts.
• Make grievance policies and procedures available both electronically (e.g., email, website) and in print (e.g., student handbooks, codes of conduct, catalogs) for access by all students, faculty, staff, and applicants for employment or admission.
• Immediately investigate complaints of sexual assault or other scenarios that may indicate that an assault has occurred (e.g., a local police report, a newspaper article, an anonymous message, or overhearing a student conversation).
• Promptly meet with the student to explain the investigation process, resolution procedures, possible academic accommodations, counseling services, the equal treatment of both parties, and protection from retaliation.
• Keep written records of all communications with all involved parties.
• Gather as much relevant material as possible prior to interviews (e.g., campus and local police reports, security videotapes, other videos, photos, voicemail or text messages, and entry/exit logs for campus buildings involved).
• Emphasize the importance of confidentiality to respondents and witnesses.
• Consider factors such as the severity of the alleged conduct, whether the accused poses a danger to others, and if alcohol or drugs were involved in the allegation of sexual assault.
• Avoid making any determinations before gathering all the facts.