In January this year, President Obama created the Task Force to
Protect Students From Sexual Assault to provide colleges and
universities with recommendations to prevent and respond to sexual
assault and enhance efforts to hold educational institutions
accountable when they fall short in addressing sexual assault on
their campuses. Recently, the Task Force issued its first report
containing action steps and recommendations to assist colleges and
universities in meeting their obligations to protect students from
sexual violence.
While the first report is far from comprehensive, it offers a
foreshadowing of the government's increased effort to enforce
Title IX and provides initial steps to assist institutions to
prepare for upcoming enforcement efforts.
Does Title IX Apply?
Title IX requires federally funded educational institutions to
ensure that students are neither denied nor limited in their
ability to participate in or benefit from the school's
educational programs and activities because of their
sex.
Student-on-student sexual violence violates Title IX when the
alleged conduct is sufficiently serious to limit or deny a
student's ability to participate in or benefit from the
school's educational program, and the institution allegedly
fails to take prompt, effective steps to end or remedy the conduct
after being put on notice.
Task Force Report's Recommendations
The report offers substantial guidance to educational institutions
on how to begin combating campus sexual assault and improve their
compliance with Title IX. The Task Force set out specific steps to
begin addressing the problem: 1) identify the problem using
climate surveys; 2) implement preventive programs and strategies,
and research new ideas and solutions; 3) implement effective
response programs; and 4) increase transparency and improve
enforcement.
To assist in addressing each of these steps, the Task Force
provided specific guidelines on how to conduct and use climate
surveys, a checklist for developing an effective sexual misconduct
policy, a sample confidentiality policy, and other tools meant to
facilitate working relationships between schools and rape crisis
centers.
Key Takeaways
Campus sexual assault will be a major enforcement priority in the
near future.
Closer scrutiny of existing campus policies is coming, and the
Department of Education is likely to ramp up efforts to identify
and correct Title IX violations. This means more work spent by
colleges and universities to review and revise existing policies,
reexamine the investigative process, and step up prevention efforts
in new and creative ways. Educational institutions should
immediately start preparing to avoid upcoming scrutiny.
Step up your efforts to prevent sexual assaults from
occurring.
The Task Force has concluded that educational institutions
continue not to do enough to prevent sexual assaults on their
campuses. Schools should consider the reinforcement of education
and awareness programs while also implementing strong disciplinary
action when complaints are substantiated. In addition to these
measures, though, institutions must explore ways to engage students
in their advocacy and prevention programs, such as engaging
influential or visible males on campus (e.g., student-athletes,
coaches, fraternity/social club leaders) as active participants in
their educative efforts.
Confidentiality is an important component
While the new guidance suggests a strong preference for honoring a
complainant's request for confidentiality, Title IX and the
Clery Act impose investigatory and reporting obligations that may
be at odds with this preference. Schools should strive to honor
requests for confidentiality, yet refrain from compromising
investigation efficacy. Consult counsel to ensure compliance with
reporting requirements in a manner reasonably calculated to
preserve a complainant's confidentiality concerns. Finally,
publicize proper methods for reporting incidents to ensure that
confidentiality requests are honored to the extent possible.
Clarify reporting obligations.
Review the reporting requirements of the Clery Act and Title IX to
ensure that mandatory reporters are accurately designated and
clearly identified to students and staff. Mandatory reporters must
be adequately trained on their reporting obligations (including the
limits of confidentiality they can provide). It is essential that
institutions have competent legal advice on these matters to
minimize the risks of liability for inadequate reporting or
inappropriate disclosure of confidential information.
Pay attention to how complainants are treated.
The Task Force report focuses heavily emphasizing the need to
ensure that victims feel safe making a report of sexual assault.
Therefore, schools must craft their investigation policies around
striking a balance between confidentiality and efficacy. Advise
complainants of: 1) their rights under Title IX; 2) their right to
file a criminal complaint; and 3) the availability of resources to
help them deal with the situation. And offer complainants available
interim accommodations (e.g., schedule changes or alternative
housing arrangements) to protect them during investigations.
Conclusion
Although the recent Task Force announcements are not
groundbreaking, they shed further light on the Obama
administration's intense focus of sexual assaults on college
and university campuses. Astute education administrators have
already seen the signs on the horizon and, with effective planning
and competent advice, management may weather the ramping up of
enforcement actions, and avoid becoming the federal
government's next example of how not to address sexual assault
on campus.
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