On any college campus, investigating a sexual misconduct allegation is unfortunately not a question of if, but when. Yet, for many schools in today’s #MeToo era, being well equipped to handle each complaint in a sensitive manner that protects the rights of all students, regardless of gender, remains no easy feat.
It has been one year since the US Department of Education rescinded its Obama-era 2011 and 2014 guidance outlining the responsibilities that schools and colleges have to prevent, investigate and address instances of sexual violence under Title IX.
While education secretary Betsy DeVos declared that “the era of ‘rule by letter’ is over”, the seven-page “interim” guidelines that were released by the department last autumn were less than clear on how schools should appropriately investigate and adjudicate allegations involving sexual misconduct.
In late August 2018, a version of the department’s proposed new rules were leaked to The New York Times, however there is still no official word from the department on when they will be released.
A spokeswoman for the department commented that any information obtained by the Times was “premature and speculative”. Once the proposed rules are officially released, there will be a “notice and comment” period where the public can weigh in. After this period, revisions are likely to follow before the final rules are published. For now, what is clear is that higher education institutions across the United States are at a crossroads between facing increased scrutiny over their responses to incidents, while still lacking firm direction under federal law.
Meanwhile, the past year has also brought the #MeToo movement to the fore and, in its wake, increased allegations of sexual misconduct in academia, as well as new lawsuits alleging that educational institutions have failed to respond appropriately to sexual misconduct.
According to the Department of Education’s Office for Civil Rights, from 2011 to 2016, the number of sexual violence complaints filed with the agency against post-secondary schools increased a staggering 831 per cent.
Although the OCR has not released its statistics for fiscal year 2017 yet, it is reasonable to assume that this trend will continue.
The increased media scrutiny on issues surrounding sexual harassment and assault has also resulted in new theories of legal liability under Title IX. Colleges are now facing unanticipated legal curveballs. In a number of recent cases, male students who have been expelled or disciplined for violating a school’s sexual misconduct policy have brought claims under Title IX based on gender bias.
A growing number of lawsuits are also challenging universities and their processes for investigating and adjudicating complaints involving sexual misconduct as violating the due process rights of the accused student.
When the legal obligation is for schools to swiftly and appropriately respond to and address sexual misconduct on campus, schools are put between a rock and a hard place. They want to do the right thing, but as the growing number of cases show, the same statute that requires colleges to take immediate action can also lead to increased litigation if the complaints are not handled appropriately.
The difficulty of this position becomes even more apparent when viewed in light of the reality that many of the complaints that universities are required to investigate and respond to on a day-to-day basis involve complex issues such as intoxication, incapacitation and consent. These issues are difficult to resolve and often turn on inherently subjective determinations such as witness credibility.
For this reason, it is imperative to ensure that those tasked with investigating and adjudicating complaints of sexual misconduct are adequately trained to avoid missteps when navigating these complex legal issues. While every school is required to have a Title IX coordinator, there is now a greater sense of responsibility on those in this role than ever before, particularly when federal guidelines remain vague and schools anticipate the release of the new rules in their final form.
Additionally, colleges should ensure that any individual who is tasked with conducting a Title IX investigation has been trained on how to conduct a thorough, reliable and impartial investigation. The investigator must also have both a disposition and background that allows them to be impartial, to objectively sift through all the evidence and to evaluate the credibility of witnesses.
Otherwise, key pieces of the puzzle will be missing. When a school reaches a decision after an investigation, any mistakes or inconsistencies can leave it at risk of major issues down the road if the decision is later challenged.
Emily Mack is an attorney at Bone McAllester Norton PLLC in Nashville, Tennessee. She regularly works with education clients on Title IX compliance and investigations as well as victims’ rights cases.