A New Wave?

by Robb Jones, Senior Vice President & General Counsel for Claims Management

Over the last month, sexual assault-related activism on campus has made headline news. Student groups, allied with a media-savvy, nationally known sexual harassment lawyer, have announced Department of Education (ED) Office for Civil Rights (OCR) complaints against at least six colleges or universities, and more will surely follow. In addition, perhaps buoyed by congressional reauthorization of the Violence Against Women Act and the near-record fines imposed by Clery Act proceedings against Yale and Dominican College, students have filed complaints against a number of additional institutions, alleging noncompliance with Clery obligations to report and publicize sexual assaults that occur on campus. According to the students' lawyer, "rapes and sexual assaults are swept under the rug and condoned by college administrators."

That's not all. Last month a joint Department of Justice (DOJ)/ED effort resulted in more than 100 pages of "findings" and resolution agreements condemning sexual assault handling by the University of Montana and its local police department . The Deputy Assistant Attorney General for Civil Rights announced the Montana agreements as a "blueprint for reform that can serve as a model for campuses across the nation to ensure that women's educational opportunities are not limited by sexual harassment or sexual assault." Along with expected policy, procedure, publication, and training mandates (all unfunded), the DOJ/OCR's broadened definition of sexual harassment will surely garner court challenges. The agreements also require retention of an "equity consultant" subject to government oversight, and give notice that OCR and the DOJ will closely scrutinize student discipline outcomes at the university.

What's going on here? Already FIRE and first amendment advocates have raised alarms about the tone and breadth of the Montana effort. The campus response has been almost nonexistent—no one wants to touch the wrong side of this third rail, but Title IX experts have quietly noted that missing from the Montana "blueprint" is much of the nuance expressed in previous ED enforcement efforts and guidance documents, including the April 2011 "Dear Colleague" letter (DCL), the 2001 Sexual Harassment Guidance, and a January 2013 DOJ report on investigating campus sexual crimes. A former ED lawyer went even further. He contends that the Montana blueprint "contradicts [OCR's] own past polices" and "flouts the Supreme Court."

On one level, what we're seeing play out are incidents that predate the April 2011 DCL; the difficulties that campuses face in sorting out the facts and assigning responsibility for what happened in many (but not all) campus sexual violence charges; and the clash between the nondiscrimination imperative and other interests, such as survivor choices, due process, free speech, and personal responsibility.

On another level, recent developments show activists' success in capturing the enforcement effort, or at least their ability to shape a compelling media message that drives the bureaucracy, silences those unable to match their fervor, and submerges competing interests. Imagine if environmental groups took responsibility for enforcing the pollution laws or Mothers Against Drunk Driving adjudicated all DUI cases. Mission-oriented activism, however legitimate as advocacy, cannot lead to fair resolutions in situations that are often intensely fact-sensitive. Yet as you look at the rhetoric and the demands, you see advocacy that ignores the complexity of the issues and paints everything in one shade with the broadest of brushes. What do the advocates want? They want campus punishment to replace what they see as an unsatisfactory criminal justice system. They want to change what they call a "campus rape culture." And yes, they want money damages—lots of them.

What should the reasonable higher ed administrator do? Don't jump on this new wave and overreact by discarding fair process or ignoring free speech. On the other hand, if you haven't complied with the April 2011 DCL, expect to get inundated. Make sure your policies have been updated and are Title IX compliant. Publicize widely these policies and other campus resources that address sexual misconduct. Train those who investigate, adjudicate, or counsel on sexual harassment and sexual violence. Ensure that your Clery Act reporting is complete and accurate. Examine your campus culture (for others will surely do so) and educate your students to make the right kind of Lasting Choices. Use knowledgeable consultants and the Title IX resources UE has created to keep your institution's head above water and avoid getting swamped.

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