In April 2011, the Education Department’s Office for Civil Rights issued a “Dear Colleague” letter detailing how colleges should deal with reports of sexual harassment and violence involving student victims. The letter was essentially a warning to campuses: If they did not handle such instances properly, they might be in violation of Title IX of the Education Amendments of 1972, a section of the Higher Education Act that prohibits discrimination based on gender at schools and colleges that receive federal money.
But more than one year after the department offered the guidance, it remains problematic both for the federal government and campuses.
Many colleges still are not meeting basic and longstanding requirements of the law, such as having an employee designated to oversee the campus’s compliance with Title IX or even having clearly defined policies and procedures on how the college will investigate sexual-harassment reports, said Adele Rapport, a lawyer with the Office for Civil Rights. Ms. Rapport was one of three panelists speaking about Title IX at the annual meeting here of the National Association of College and University Attorneys.
The requirements outlined in the Dear Colleague letter also remain widely unpopular with college lawyers, who often protest that the 2011 guidance saddles their institutions with a broad and prescriptive set of procedures. Lawyers on campuses “feel like they’re being directed to adopt a certain format, and nobody asked them about that,” says Pamela Thomason, the lawyer who oversees Title IX compliance at the University of California at Los Angeles who also spoke on the Title IX panel.
Training, training, training
Janet P. Judge, an expert in the legal aspects of college athletics, said many in higher education have long associated Title IX only with its rules requiring an equal number of athletic opportunities for women and men. As a result, the Dear Colleague letter “sent schools scrambling” to comply with both with the newly issued guidelines as well as decades-old standards.
A major complicating factor in enforcing the law’s requirements is that colleges may be trying to enforce campus policies at the same time that a criminal investigation is proceeding, Ms. Judge writes in a paper recommending how institutions can better meet the Title IX mandates. “Those charged with determining the validity of school policies are doing just that; determining whether the standards set forth by the school have been violated and not whether laws have been broken,” Ms. Judge wrote.
For example, in disciplinary proceedings, the standard of evidence for determining whether a student violated college policies on sexual harassment is lower than the standard a jury would use in a criminal trial, speakers noted.
Ms. Thomason said college investigations into sexual violence can also benefit from police investigations, since law enforcement can collect evidence that is not available to campus officials.
Panelists also emphasized the role of training college staff who must enforce the civil-rights law, including frank discussions about the role that drugs and alcohol often play in instances of sexual violence and the influence of unfair stereotypes, such as the notion that young women encourage harassment by wearing certain kinds of clothing.
Even with better training, however, the proliferation of technology continues to create challenges for campuses trying to enforce rules against sexual harassment, Ms. Judge said. For example, racist or sexist statements on social-media sites may rise to the level that they should be reported to the campus Title IX coordinator, she said.
While institutions shouldn’t be looking into private communications that are on password-protected sites, if a college has knowledge of that material, it has a responsibility to enforce the rules, she said.