Over the past several years, mainstream media has become increasingly fixated on issues of sexual violence on college campuses, with major state universities like the University of Montana, Michigan State University, the University of Virginia (UVA), and the University of California at San Diego receiving the brunt of the attention and corresponding criticism.  The general consensus: educational institutions are not doing enough to ensure that students have safe and nondiscriminatory learning environments.  The federal government, through the U.S. Department of Education’s Office for Civil Rights (OCR), seems to agree.

Last week, the spotlight was refocused on the University of Virginia (“UVA” or “University”) when the OCR announced that it had entered into a resolution agreement with UVA to ensure that the University complies with requirements of Title IX of the Education Amendments of 1972 (“Title IX”), which prohibits discrimination on the basis of sex in education programs and activities operated by recipients of Federal financial aid.  The resolution agreement came to fruition after an OCR investigation determined that between 2008 and 2014, UVA had a “mixed record” of Title IX compliance.

UVA’s policies and practices regarding sexual violence and harassment became a mainstream media topic of contention earlier this year when Rolling Stone Magazine (“Rolling Stone”) published an article, ‘A Rape on Campus’ regarding a student’s alleged sexual assault by members of a fraternity.  However, after several media outlets brought attention to several inaccuracies and journalistic failures contained in the narrative and Rolling Stone commissioned the Columbia University School of Journalism to conduct an independent review of the narrative’s accuracy, Rolling Stone issued a retraction, which we previously reported on in April.  Despite the OCR investigation becoming “newsworthy” as a result of the Rolling Stone article and subsequent fallout, the OCR in fact began its Title IX investigation in June 2011, long before the topic drew national debate.

On September 21, 2015, OCR issued a Letter of Finding, determining that UVA violated Title IX because:

• The University’s Sexual Misconduct Policy (SMP) failed to provide a “reasonably prompt timeframe for the major stages of the complaint process” including a timeframe for completing an investigation, initiating a hearing, and resolving appeals.

• The University’s informal resolution process was structurally flawed and inequitable because if, during the course of the informal resolution process, the accused admitted to wrongdoing, the University would proceed with sanction recommendations without first conducting an independent investigation into the complainant’s allegations. Such a process was inequitable as to both the alleged victim and perpetrator because it allowed for the “imposition of sanctions that the University has not determined to have occurred.”

• On at least two occasions during the formal resolution process, the University failed to provide for prompt and equitable resolution when it, among other things: (1) took five months to schedule a hearing after completion of an investigation in a particular case and (2) allowed a student accused of sexual assault to file a late cross-claim against the complainant without conducting an independent investigation into the accused’s allegations and without giving the original complainant adequate time to prepare to defend against the cross-complaint.  The University’s decision to allow the accused to file a late cross-claim that would be addressed at the already scheduled hearing without a separate investigation in the validity of the cross-claim was inequitable.

• The University implemented a practice by which the Associate Dean of Students served both as the Deputy Title IX Coordinator for Student Sexual Misconduct and as the Chair of the Sexual Misconduct Board (SMB). These dual roles created the appearance of a conflict of interest because the Deputy Title IX Coordinator was responsible for receiving complaints, implementing interim measures and selecting the SMB panel for the hearing, but as the Chair was responsible for facilitating the hearing, guiding the panel in its questioning of witnesses, and issuing the first draft of the panel’s decision.

• The University relied too heavily on the parties to identify relevant evidence by requiring the parties to submit a list of witnesses and relevant evidence they wished to present at hearing. Under Title IX, UVA had the responsibility to make an informed and independent judgment of what evidence the SMB panel needed to use in adjudicating the complaint.  By relying on the parties’ evidence and witness list without independently determining what evidence was necessary to make an informed decision, this process undercut the SMB’s ability to meet its responsibility to conduct an adequate, reliable, and impartial investigation and determination.

• The University failed to take appropriate action in 22 of 50 reports made by students between 2008 and 2012. In nine reports, there were no records that UVA ever conducted investigations.  An additional four were referred to local police, but were not independently investigated by the University.  The other nine reports were made by complainants requesting confidentiality or that no investigations occur, but UVA appeared to make no effort to even evaluate such requests “in the context of its responsibility to provide a safe and nondiscriminatory environment for all students.”  (In the words of OCR.)  OCR noted that between 2012 and 2014, the University continually failed to evaluate its responsibility to provide a safe and nondiscriminatory environment when evaluating confidentiality requests.

• The Title IX Coordinator did not adequately coordinate and oversee all Title IX complaints. For example, in practice, complaints were handled within academic departments by department staff who were not properly trained. Department staff often failed to report complaints to the Director of Equal Opportunity Program (EOP), who also served as the Title IX Coordinator.  Furthermore, even when reported to EOP, the Director of EOP had only limited involvement and oversight over the departments’ responses to student complaints.

• The University did not include a compliant notice of nondiscrimination in locations other than the EOP website. This nondiscrimination notice was only directed to employees and failed to address how the University’s policies regarding nondiscrimination applied to students in the University’s broader programs and activities.

Ultimately, OCR determined that UVA actions, or inactions, created a sexually hostile environment when it failed to take prompt and equitable action in responding to formal and informal complaints and reports and when it neglected to assess whether a hostile environment existed or take steps to prevent its reoccurrence.  As a result of OCR’s findings, on September 17, 2015, UVA and OCR entered into a Resolution Agreement whereby UVA agreed to, among other provisions:

• Continue to follow its revised Title IX grievance procedure, which the OCR has deemed to be fully compliant;

• Ensure that agreements with student organizations clearly state that sexual harassment, sexual violence, and retaliation are prohibited and that the organizations are required to comply with the University’s Title IX policies;

• Regularly train students, faculty, administrators and other staff on issues related to sexual harassment and violence, including University policies and procedures;

• Widely disseminate its notice of nondiscrimination;

• Improve outreach to and feedback from students through focus groups and annual climate assessments;

• Develop and implement a system for tracking and reviewing all reports, investigations, interim measures, and resolutions;

• Review all complaints from the 2011-12; 2012-13, and 2013-14 academic years to determine that each complaint was handled properly and take action to address any deficiencies; and

• Submit to OCR for review all complaints filed by students for the 2014-15 and 2015-16 academic years.

UVA shares the spotlight with other schools like Michigan State University (“MSU”), who this month also entered into a resolution agreement with OCR in response an OCR investigation revealing several Title IX violations between 2009 and 2014.  Through these two investigations, as well as dozens of others not as widely publicized, the OCR has made it abundantly clear that it will prioritize ensuring that schools that receive Title IX funding do not deprive students of access to education on the basis of sex, including sexual harassment and violence.  In particular, OCR is paying particular attention to school’s grievance procedures to ensure moving forward, all parties to a complaint are provided with prompt and equitable resolutions.  OCR is clear that the following elements are critical to achieve Title IX compliance:

1. notice to students and employees of the procedures, including where complaints may be filed;

2. application of the procedures to complaints alleging discrimination and harassment that is carried out by employees, other students, or third parties;

3. provision for adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and respondent to present witnesses and other evidence as part of the investigation;

4. designated and reasonably prompt timeframes for the major stages of the complaint process;

5. written notice to both parties (complainant and accused) of the outcome of the complaint and any appeal; and

6. assurance that the recipient will take steps to prevent recurrence of any sex discrimination or harassment found to have occurred, and to correct its discriminatory effects on the complainant and others, if appropriate.

California educational institutions should remember that Title IX is not the only law that they have to worry about.   Educational institutions must comply with other state and federal laws addressing harassment and violence.  For instance: Institutions of higher education receiving federal funding must comply with The Clery Act regarding crime reporting; 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.); and Mandated reporting laws may apply to all institutions, whether public or private.  California’s Penal and Education Codes address additional obligations.  For these reasons, while OCR deemed UVA’s Title IX grievance procedure fully compliant, and California educational institutions may look to the procedure for reference, they should remember that the grievance procedure does not take into account requirements under California law.  Furthermore, it is important to note that even under federal law educational institutions may have specific institutional needs and concerns that necessitate deviations in Title IX policies to the extent permitted by law. Consulting with California legal counsel can help colleges and universities comply with applicable requirements.