Apr 042011

The Office for Civil Rights (OCR) has issued a “Dear Colleague” letter to colleges and universities regarding the issue of responding to claims of sexual violence. The letter can be accessed at the NCHERM website, and is worth a read by anyone working in higher education. (Update: The letter is now posted as a pdf to the USDOE website)

It is no real surprise to me that this letter was released to the media prior to actually being presented to the higher education community. As one colleague pointed out on Twitter, OCR is likely still reacting to criticism that arose from the study done by the Center for Public Integrity on college and university responses to allegations of sexual assault. Frequent visitors to this site know that I was one of the people interviewed for this study, and I also was fortunate enough to appear on NPR’s Talk of the Nation with Kristen Lombardi, CPI’s lead investigative reporter for this study.

My perspective when being interviewed is the same one that I have now. It is my genuine belief that most colleges and universities do the best job that they possibly can responding to allegations of sexual misconduct, and do so with staff that have proper training and experience. This is my experience in the institutions that I have worked at, in my continual conversations with colleagues over the years, and in my review of college and university processes. Having said that I am known for making the rather blunt comment that there are just enough people in our profession not doing the right thing to give our entire profession the proverbial black eye. Thus, when Ms. Lombardi shared with me some of the stories that she had investigated, I was horrified. How is it that institutions of higher learning will not take such complaints seriously, not investigate them to their reasonable conclusion, or choose to put forth staff whose lack of training and/or experience makes them wholly unfit to manage such cases? I respect that there are two sides to the cases that Ms. Lombardi investigated, and that FERPA restrictions prevent institutions from sharing their own versions of the events, but some of the information that I have read is deeply troubling. Preferential treatment for student athletes. The strong-arming of victims attempting to come forward. The lack of published processes. Poorly trained investigators and/or hearing panels.  At some point, no matter how many of us are doing the right things the right ways, our work is undone by those who are unable or unwilling to provide fairness and equity to all students in our conduct and grievance processes. That’s exactly what invites governmental intervention through legislation, and in some cases through strongly worded statements such as the “Dear Colleague” letter released today by OCR. While the manner in which the letter has been released is political, the fact of the matter is that the letter contains some very important points that college and university administrators must heed.

While the letter addresses many topics, here are the key points that I made note of:

  1. OCR starts with the obvious but important point that institutions are required to address harassment as soon as they become aware of (or should be aware of) such activities. A response is defined as eliminating the harassment, preventing its recurrence and addressing the effects of the harassment.
  2. OCR reiterated that it does not matter who files the complaint… it could be the student, her/his parents, or a third party. Independent of the referral source, the college or university is required to respond as noted in the previous point.
  3. OCR again visits the issue of complainant confidentiality. OCR notes that schools must weigh the need to create a safe environment for all students with the individual student’s desire for confidentiality. Schools are told to inform complainants that confidentiality cannot be guaranteed. Schools are also told that, even when they cannot act through disciplinary means, they must address the effects of the harassment and prevent its recurrence. Examples of means for achieving this appear later in the document.
  4. OCR reiterates that schools may utilize their student conduct proceedings to address complaints against students. Schools may also utilize informal processes to address such complaints. There were a few interesting statements in the letter that caught my attention.
    • OCR notes that mediation may be used to resolve some sexual harassment complaints. However, OCR once again states that mediation should not be conducted solely between the two parties. OCR is very clear on the need for a trained mediator or other staff member. (Author’s note: Having training in mediation does not guarantee that someone is qualified to handle victim-offender reconciliation mediations.)
    • OCR is once again very clear on the fact that mediation is not appropriate for cases involving sexual assault. (UPDATE/ Author’s note: My interpretation of this is that OCR is speaking specifically to the resolution of the complaint not being suitable for mediation. There may well still be other issues that are suitable for mediation. For instance, if a complainant chose not to pursue formal charges but wished to address issues such as future communication, property, or other matters, such issues might be referred to mediation, shuttle diplomacy, or a facilitated dalogue.)
    • Schools are told that criminal investigations do not replace institutional Title IX investigations, nor should schools wait for the completion of a criminal investigation to conduct its Title IX investigation. (Author’s note: There are numerous models of investigations for campus conduct systems, and many systems do not conduct investigations at all, but require the complainant to present all information in support of a charge. This point from OCR reiterates the needs of institutions to augment their normal investigative procedures to be able to comply with Title IX.)
    • OCR again states that rights for complainants should mirror rights for respondents, including any policies relating to the involvement of attorneys and the rights to an appeal.
    • Both the complainant and the respondent must be notified out the outcome of any disciplinary/grievance process. Such notification does not violate FERPA.
    • Perhaps the most interesting point to me was OCR’s very clear statement on the burden of proof. OCR calls specifically for the preponderance of evidence test in determining a finding, and takes direct aim at those schools currently employing the clear and convincing standard. I know several colleagues who work with the C&C standard, and even one who works with beyond a reasonable doubt. This letter, in my view, should be immediately used as a means for generating campus discussions to re-examine the evidentiary standards being employed.

As I noted earlier, there are many other good points in this letter worth review. But I will leave such interpretation and commentary to my more qualified colleagues who specialize in this subject. For me, OCR’s points affirm the position that many of us have taken over the years about providing the complainant with a process that affords the same rights and protections that we provide for the accused student.

I know that almost without exception I was fortunate during my time in student conduct to always be allowed to do my job to the best of my ability without interference, and that I was given both policies and procedures which aided in creating an environment where both complainant and respondent were treated with fairness and equity. I was also fortunate to always be given the opportunity to acquire professional development and to improve my craft. I guess that for many years I simply assumed that everyone was operating this way. It was only when I was presented with examples that did not conform with my own experiences that I began to understand the need for reform in our profession. I prefer internal reform… allowing institutions to identify the problems that exist and to come up with solutions, and OCR’s letter can easily be interpreted as an effort to prompt such review and reform. This is far preferable to Congress simply creating rules that may or may not address the problem, or which may create new problems. I have a great deal of respect for my colleagues who have chosen to take sexual harassment, sexual assault, and other forms of sexual misconduct on as a professional passion, and hope that schools will seek out expertise both in terms of the advice of external professionals and the adoption of best practices. While OCR’s letter may not contain a great deal of new information, it clearly signals a need for attention and action.

UPDATE: The Chronicle of Higher Education issued a first response story here.

UPDATE #2: Kristen Lombardi of the Center for Public Integrity has been kind enough to share a follow-up article that appeared this morning. Campus sexual assault issues were also highlighted on ABC’s Nightline.

UPDATE #3: The response from FIRE has been posted.