In recent months, partially in reaction to several investigations initiated by the U.S. Department of Education’s (“DOE”) Office for Civil Rights (“OCR”), the news media has drawn attention to the prevalence of sexual violence on college campuses and scrutinized administrative responses to claims of such violence. The height of this attention arguably came in November 2014 when Rolling Stone published ‘A Rape on Campus,’* a story largely centered on an alleged gang rape at a fraternity house on the University of Virginia’s (“UVA”) campus. Almost immediately following the story’s publication, however, other news outlets began to question the accuracy of the Rolling Stone narrative. The Washington Post brought attention to the author’s failure to interview the alleged perpetrators. Slate called attention to the fact that the author did not interview at least one of the alleged victim’s friends, in whom she had claimed she had confided immediately following the attack. In response to the skepticism surrounding the accuracy of the reporting, as well as to the author’s own concerns following publication that she may have gotten it wrong, Rolling Stone commissioned faculty at the Columbia University Graduate School of Journalism to conduct an independent review into the narrative’s accuracy.
The Columbia University Graduate School of Journalism Report (the “Columbia Report” or “Report”) was published on April 5, 2015. The Columbia Report characterizes ‘A Rape on Campus’ as a “journalistic failure,” finding significant gaps in the reporting, editing, supervision and fact-checking processes, which had they been examined should have caused Rolling Stone to reconsider publishing the story at all. The Report also notes that a four-month independent investigation by the Charlottesville, Virginia police department found that there was “no substantive basis to support the account alleged in the Rolling Stone article.” Rolling Stone published the report in its April 5, 2015 issue, retracting the November narrative and removing it from its website.
While the Columbia Report calls attention to Rolling Stone’s journalistic faux pas – condemning the author and magazine’s failures to adequately balance the sensitivity of victims with the demand for verification, fact checking, and understanding of legal guidelines – it more subtly serves as a commentary on the “do’s and don’ts” for educational institutions when they are confronted with claims of sexual harassment and violence (hereinafter “sexual misconduct”). Importantly, it also serves as a reminder that an allegation of sexual misconduct affects both alleged victims and perpetrators, and that the law requires that educational institutions establish impartial and equitable procedures to protect the rights of both the parties involved.
The OCR investigations mentioned above were initiated pursuant to the DOE’s jurisdiction under Title IX of the Education Amendments of 1972 (“Title IX”) (20 U.S.C. section 1681 et seq.; 34 CFR Part 106). Title IX promotes freedom from discrimination on the basis of sex in educational programs or activities receiving federal finance assistance. While OCR has focused its compliance efforts on institutions of higher education, Title IX also applies to preschools, local education agencies (“LEAs”), and elementary and secondary schools.
Title IX prohibits discrimination on the basis of sex, which includes sexual harassment, defined in part as “unwelcome conduct of a sexual nature,” and sexual violence, defined as “physical sexual acts perpetrated against a person’s will or when a person is incapable of giving consent,” whether the harassment is perpetrated by employees, peers, or third parties. (Office for Civil Rights, U.S. Dept. of Education, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third parties (2001) (“2001 Guidance”); Office for Civil Rights, U.S. Dept. of Education, Dear Colleague Letter (2011) (“2011 DCL”); Office for Civil Rights, U.S. Dept. of Education, Questions and Answers on Title IX and Sexual Violence (2014) (“2014 Q&As”)). Upon notice of “sufficiently serious” sexual harassment or misconduct, educational institutions are required to take prompt and effective action to (1) end the misconduct and (2) prevent its reoccurrence. (2001 Guidance). The OCR has described that under Title IX, educational institutions must abide by the following procedures:
- Establish policies and procedures, including:
- A Nondiscrimination Policy & Notice, which must be distributed to employees and students;
- Designating an employee as the “Title IX Coordinator” to comply with and carry out the institution’s responsibilities under Title IX, including receiving and initiating investigations of all complaints of sexual misconduct; and
- Written grievance procedures which provide a prompt and equitable resolution of student and employee complaints.
- Require all “responsible employees” (defined as a person who is authorized to take action to redress sexual misconduct, who has a duty to report such misconduct or as a person a student reasonably believes has such authority) to report sexual misconduct to the Title IX Coordinator;
- Engage in a fact-finding investigation to determine whether the misconduct occurred. Investigations must be prompt, adequate, reliable, and impartial;
- Train and educate employees and students about their rights and obligations under Title IX; and
- Take remedial actions to address claims of sexual misconduct, including investigating complaints, implementing interim protective measures, and disciplinary action, as well as affirmative steps to prevent future reoccurrence.
(2014 Q&A, section C).
Educational institutions’ carrying out responsibilities under Title IX, however, do not negate their responsibilities to protect other legal rights of the alleged victims or perpetrators. Specifically, OCR has emphasized that “the rights established under Title IX must be interpreted consistently with any federally guaranteed due process rights,” meaning that such rights of both the complainant and alleged perpetrator must be considered and protected throughout the investigation and disciplinary processes. (2014 Q&A, section C). Furthermore, privacy rights are often implicated in the course of Title IX investigations. For example, the Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C. section 1232g; 34 CFR Part 99) protects the privacy of student education records.
Under FERPA, institutions cannot release the contents of a student’s education records without consent of the student or a minor’s parent or guardian. (34 CFR section 99.31). Thus, an alleged victim or news outlet like Rolling Stone cannot request to see the disciplinary records of the alleged victim or perpetrator. In fact, the Columbia Report notes that the author of ‘A Rape on Campus’ requested an interview with UVA’s Associate Dean of Students. While the Dean agreed to speak with her in hypothetical terms, she told the Rolling Stone journalist that she would not discuss specific cases. ‘A Rape on Campus’ criticized the administration’s secrecy. But as the Columbia Report notes, administrators are bound by other legal requirements as well, and as such, the Rolling Stone journalist should have gained a deeper “understanding of the tangle of rules and guidelines on campus sexual assault” before she sought to hold UVA accountable. Like other media criticism, the Columbia Report recognizes that some institutions’ Title IX procedures are flawed; but, one should not rush to judgment without a more holistic understanding of how Title IX interacts with other legal requirements. Indeed, another implicit and significant message of the Rolling Stone narrative is that all institutions should regularly review their Title IX policies and procedures and stay up-to-date with changes in both federal and state laws to ensure compliance with all applicable standards.
Note: While this post serves as a reminder to educational institutions about their obligations under Title IX, educational institutions’ obligations do not end here. Educational institutions must comply with other state and federal laws addressing harassment and violence. For example, institutions of higher education receiving federal funding must comply with The Clery Act and institutions of higher education receiving state funding must comply with California’s new ‘Yes Means Yes’ law (Educ. Code section 67386). Community College Districts must comply with Title 5 of the California Code of Regulations (Ca. Code Regs., tit. 5, section 59300 et seq.). Mandated reporting laws may apply to all institutions, whether public or private. California’s Penal and Education Codes promulgate other requirements. Educational institutions must ensure compliance with all applicable, and sometimes conflicting, laws and regulations. For these reasons, we recommend institutions consult with legal counsel to ensure proper compliance.