The last five years have turned Title IX from a law primarily known for its impact on women in sports to one that has become synonymous with collegiate responsibility in sexual assault cases. The U.S. Department of Education's Office of Civil Rights has open cases on more than 150 campuses, and the push to better respond to sexual assault, thanks in large part to the work of student activists and Obama administration policy guidelines, has touched virtually every school in the country.
Besides the pressure from sexual assault victims and their allies, colleges are now facing new pressure from accused students who have gone on to sue for a violation of their rights — and won. Some, including University of California President Janet Napolitano, have argued colleges are simply not equipped to handle prevention, investigation, and adjudication of sexual harassment and violence.
In a 2015 essay for the Yale Law and Policy Review, Napolitano writes that colleges and universities are limited by a lack of subpoena power, a lack of clarity over authority regarding off-campus assaults, restricted investigative power — including no right to issue search warrants — and a limitation on the sanctions they can impose. She questions whether higher education institutions are well-suited to serve the roles laid out for them in Title IX, even given the fact that so few survivors choose to report their assaults to law enforcement.
"If that is the case, it can be argued that rather than pushing institutions to be surrogates for the criminal justice system, more work should be done to improve that system's handling and prosecution of sexual assault cases," Napolitano writes.
Survivor and youth-led advocacy group Know Your IX conducts a mixture of policy and student engagement work around Title IX and sexual assault. While Deputy Director Mahroh Jahangiri says colleges and universities are failing to meet their responsibilities under the gender equity law, she says she does not believe that is a good reason to lessen their burden.
Schools, Jahangiri said, are in a unique position to respond to the needs of survivors. They have the power to move victims of sexual assault out of dorms they share with their assailants. They can change their class assignments, and offer counseling services.
"We don't think it's a question of schools being unable to do this," Jahangiri said. "It's a matter of better federal enforcement of Title IX to hold schools accountable."
One practice that is becoming more common as colleges and universities strive to create a model that is fair to victims and alleged perpetrators of sexual assault is the outsourcing of the adjudication process.
Jane Cutler Greenspan, a retired Pennsylvania Supreme Court justice and longtime judge and district attorney, works as an independent arbitrator with alternative dispute resolution provider JAMS. Swarthmore College was the first school to retain Greenspan when its processes were called into question by multiple student complaints to the Office of Civil Rights. Now Greenspan travels across the Atlantic Seaboard and the Midwest to offer a neutral voice to campus hearings, backed up by years of training on Title IX and experience with sexual assault cases.
Greenspan says she conducts the hearings, makes a decision, and writes a report for school administrators. In some cases she assigns a sanction, while other times she merely recommends one or assigns responsibility and leaves the sanction up to other administrators at the school. Some institutions call her in for every case, while others handle some cases in-house and outsource the most complicated allegations.
Clearer, more streamlined regulation and government oversight may be a long way off. And in the meantime, the number of OCR investigations continues to climb. Campus climate surveys are often a good place for proactive colleges to start, forcing the entire campus community to come to terms with the reality. From there, improving prevention and support services offers a way to meet the needs of students, and training internal adjudication boards or contracting with third parties creates a path toward limited liability for the school and fair treatment for the students involved.
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