• October 25, 2014

Tufts U. Disputes Finding That It Failed to Comply With Civil-Rights Law

The U.S. Department of Education announced on Monday that Tufts University had failed to comply with the federal civil-rights law known as Title IX by not responding appropriately to reports of sexual harassment and violence, allowing a hostile environment to persist.

In an unusual development, Tufts initially accepted but then revoked an agreement to change its policies, calling the finding of noncompliance that came with it unsubstantiated. That leaves the Massachusetts university and the federal agency in a standoff, with the latter pledging to enforce the agreement or begin the process of terminating federal funds to Tufts, the ultimate penalty for violations of Title IX.

The case began in 2010, when a student filed a complaint with the Education Department, alleging that Tufts had mishandled her report of sexual assault. After a lengthy investigation, the department’s Office for Civil Rights, known as OCR, found that Tufts had "failed to provide a prompt and equitable response to complaints of sexual harassment/violence as required by Title IX," including those of the student in question.

Further, the office found, the university hadn’t provided the student with "interim measures," such as helping her change courses or housing, to minimize the risk of continued harassment and harm. And for more than a year and a half, the office said, the university did not have a permanent Title IX coordinator, an obligation under the law.

Typically, such findings do not result in an official declaration of noncompliance, but rather a "resolution agreement" in which federal and campus officials identify policies the college will adopt to improve safety.

The agreement reached in this case specifies, for instance, that Tufts will provide regular training for all students and employees on their rights and responsibilities under Title IX. Among other provisions, it requires Tufts to document all reports and complaints of sexual misconduct, formal and informal, with a 13-point checklist; submit all proposed revisions to policies, procedures, outreach, and training for federal review; conduct annual assessments of the campus climate; and pay monetary compensation to the student who filed the complaint.

Tufts forged that agreement with the regional civil-rights office in Boston and accepted it on April 17, when Mary R. Jeka, senior vice president and general counsel at the university, signed it. The agreement states that it "does not constitute an admission by the university that it is not in compliance with Title IX."

On April 22, however, the regional office informed Ms. Jeka that authorities in Washington planned to say in a letter of findings accompanying the resolution agreement that Tufts had failed to comply with the law. "I felt that I was sort of misled," said Ms. Jeka. "We would not have signed the agreement if that were made explicit to us."

Four days later, Ms. Jeka revoked her signature on the resolution agreement. The university described the move in a statement on its website on Monday. "We could not, in good faith, allow our community to believe that we were not in compliance with such an important law," it says. "We believe the department’s recently announced finding has no basis in law, and we have requested to speak with OCR's Washington office to discuss this unexpected and troubling announcement."

Monetary Damages

Following the federal complaint in 2010 and guidance from the Education Department in 2011, Tufts has reviewed and updated its policies on sexual harassment and assault, officials there said.

In a public letter on Monday, the university’s president, Anthony P. Monaco, affirmed "the prevention and elimination of sexual misconduct" as one of his top priorities. The letter describes current efforts toward that end, which include training for students in bystander intervention; a new website dedicated to sexual-misconduct prevention, education, and response; a new position of sexual-misconduct-prevention specialist; and a commitment by the university to listen to "victims/survivors … and support them in raising their voices."

The resolution agreement acknowledges the university’s progress but lays out more changes the department expects to see. It says, for example, that further revisions to policies should make explicit that Title IX rights and responsibilities apply to campus visitors; that the university considers off-campus conduct in evaluating if there is a hostile environment; and that investigations into reports of sexual harassment and assault are conducted only by trained investigators.

Recent agreements with other institutions, such as Yale University and the University of Montana, have been similarly prescriptive, but the Tufts agreement includes an unusual provision seen recently in cases involving discrimination against pregnant students: that Tufts pay the complainant monetary damages.

The Office for Civil Rights reminded colleges of potential "monetary relief" in a warning against retaliation last year, but in this case it found that Tufts had not retaliated against the student who filed the complaint. Yet the agreement specifies that the university reimburse her "for educational and other reasonable expenses" over a year and a half "related to this matter."

One student who has advocated for stronger enforcement of Title IX called the civil-rights office’s stand on Monday "huge."

"This is the direction we’ve been wanting OCR to go in as a national activist movement," said John Kelly, a junior at Tufts. His and other institutions "have been out of compliance for a very long time," he said. "I am so, so grateful that finally the federal government is saying something about it."

Tufts officials signaled on Monday that they would continue to introduce new prevention and response programs even while contesting the department’s finding of noncompliance with Title IX. Unclear at this stage is whether the university will have to accept that finding to resolve the case.

"Some sort of negotiated resolution does seem to me more likely than a litigated one," said Erin E. Buzuvis, a professor of law and director of the Center for Gender and Sexuality Studies at Western New England University. "The leverage that OCR has to terminate funding is usually sufficient."

Catherine E. Lhamon, the Education Department’s assistant secretary for civil rights, invited Tufts to "return to productive progress" in a written statement. "OCR will take actions necessary," she said, "to ensure that the agreement is fully and effectively implemented."

Ms. Jeka, the Tufts lawyer, said she expects the office to clarify how Tufts was—or potentially still is—out of compliance with Title IX, a point of confusion in the documents released on Monday.

"I really want to negotiate," she said. "This is a distraction from the really more important part of addressing sexual misconduct."

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