Sexual Assault on Campus: Assessing Compliance with Title IX

By Katherine A. Greenier, Director, Patricia M. Arnold Women’s Rights Project, ACLU of Virginia

More than a year ago, in April 2011, the Office for Civil Rights of the Department of Education (OCR) sent colleges and schools a “Dear Colleague” letter to explain that the requirements of Title IX cover sexual violence and to remind schools of their responsibilities to take immediate and effective steps to respond to sexual violence in accordance with the requirements of Title IX.” The fact that the University of Virginia kicked off its school year with two rapes reported in the same week prompts the question, what have Virginia colleges and schools done to respond to the “Dear Colleague” letter?

Sadly, incidents of sexual violence at colleges and schools remain all too common.  Nationally, 1 in 5 (pdf) women are sexually assaulted while in college, and approximately 81 percent of students experienced some form of sexual harassment during their school years.

These statistics are unacceptable.  As the “Dear Colleague” letter explained, under Title IX (a federal civil rights law that prohibits discrimination on the basis of sex in any education program or activity that receives federal funding), schools and colleges receiving federal funds have a legal obligation to protect students from gender-based violence and harassment– including sexual assault.

Title IX is a powerful tool for students who want to combat sexual violence at school and on college campuses. Among other requirements, if school personnel become aware that a student has experienced sexual harassment or violence, schools are required to promptly investigate the complaint, even if the police are doing a separate investigation.  Schools must keep victims apprised of the investigation and inform them of how to appeal the schools’ findings.

UVA administrators and campus police responded quickly on the day of the first reported rape by, in part, emailing safety tips to the University community and posting the emergency message on the University’s website.  Nonetheless, while the message made clear that sexual assault is never the victim’s fault, Police Chief Mike Gibson’s message said, in describing potentially sexually aggressive men,  that “many perpetrators do not pre-meditate their indecent acts” and that in some circumstances “the perpetrator arrives at the point of no return,” which, as The Hook reported, suggests “some men just can’t stop themselves.”  That kind of message perpetuates a myth that can severely undermine the willingness of a sexual assault victim to seek redress and contributes to a culture in which sexual assault is seen as “just the way things are.”

Encouragingly, according to The Hook, Gibson “acknowledges the wording of the email was poor” and plans to accept offers to assist him with future messaging.  UVA’s continued education of administrators and campus police is an example of the work all colleges and universities must do to keep their students safe.

Schools and colleges also must take steps to ensure that student disciplinary proceedings are fair to victims and perpetrators alike and that the standard of proof applied in such proceedings is not a barrier that prevents victims of sexual assault from coming forward.

OCR’s “Dear Colleague” letter advised all colleges and schools that they must lower the evidentiary standard for holding a student accountable in campus judiciary procedures. OCR advised the schools to use the standard of a “preponderance of the evidence” that is usually applied in civil rights lawsuits and administrative proceedings rather than the heightened proof standards normally applied in criminal proceedings.  The “preponderance of the evidence” standard only requires the evidence to show that it is more likely than not that sexual harassment or violence occurred.

This fall’s unwelcome news about on-campus sexual assaults makes it important to know whether Virginia colleges and universities have taken appropriate steps to respond to OCR’s “Dear Colleague” letter and to protect all students from gender-based violence and assault.  Accordingly, as part of our work to protect and advance women’s rights, we’ll be sending Freedom of Information Act requests to Virginia colleges and universities asking for copies of current disciplinary policies and procedures and other information about changes made and activities undertaken to address issues of sexual violence and harassment.  Among other things, Virginians deserve to know whether campus judiciary procedures meet the requirements of Title IX.