A White House Call to Action

In an unprecedented move, President Obama added his presidential powers to the pressure building on colleges and universities* to teach students, staff, and faculty how to prevent and respond to rape and sexual assault. 

What type of education program is required? The White House is working on providing guidance on this question. On January 22nd, President Obama announced that he had created a White House Task Force to Protect Students from Sexual Assault to provide schools with best practices and step up enforcement of federal laws requiring colleges to address the problem of campus sexual assault.

Adding to the urgency, the Task Force must deliver to the President by April 22, 2014:

• examples of prevention programs, and training and orientation modules for students, staff, and faculty, as well as policies and procedures for responding to sexual assault complaints

• recommendations for measuring institutions' prevention and response efforts and making this information available to the public

• proposals for maximizing the government's enforcement activities

As soon as these examples, recommendations, and proposals are available we will have a better idea of what a compliant education program looks like. Going forward, the Task Force is required to submit annual reports to the President regarding implementation of its recommendations.

On the same day as the White House formed the Task Force, the President's Council on Women and Girls presented its report, "Rape and Sexual Assault: A Renewed Call to Action."  This report focuses on the Administration's "major effort to better enforce" federal laws that require institutions of higher education to prevent and respond to campus sexual assault. 

As the report points out, both the Department of Education and the Department of Justice are charged with enforcing these laws, including the Campus SaVE Act which requires colleges and universities to provide prevention education programs for students and employees on domestic violence, dating violence, sexual assault, and stalking.

Currently, the Department of Education is conducting negotiated rulemaking proceedings to draft regulations implementing the specific education requirements of the Campus SaVE Act. Final regulations are expected to be issued by November 2014.

In the meantime, when the Campus SaVE Act became effective on October 1, 2013, the ED said: "we expect institutions to make a good faith effort to comply with the statutory requirements in accordance with the statutory effective date." While we wait for the final regulations, we'll look for the Task Force report to provide further guidance on what constitutes a good faith effort.

* All institutions of higher education that receive federal funds are covered by Title IX and the Campus SaVE Act. These institutions include colleges, universities, community colleges, graduate and professional schools, for-profit schools, trade schools, and career and technical schools.

Is There a Right to Cross-examine in Campus Sexual-Assault Hearings?

When Brian Harris was found responsible for sexual assault and expelled from St. Joseph's University, he filed a complaint against the school, claiming he was denied an opportunity to "question and confront his accuser and witnesses to test their veracity and credibility" in violation of provisions in the student handbook and "basic due process" (Complaint, ¶¶ 55 and 82(k)).

Harris and other male college students accused of sexual assault have filed lawsuits, alleging that campus investigations and hearings are unfair and biased in favor of their accusers, depriving them of their right to due process.

As we discussed in our post on the standard of proof in disciplinary proceedings, many of these cases center on the credibility of the two parties. The specific question we'll look at in this post is whether in a conduct hearing a student accused of sexual assault has a right to "question and confront his accuser" under the Sixth Amendment to the U.S. Constitution, which reads:

In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …

The U.S. Department of Education has been clear that in campus sexual assault hearings allowing the accused to directly confront the accuser could cause more harm to the victim. ED's 2001 Sexual Harassment Guidance says "schools should ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant." In its April 2011 Dear Colleague Letter, the ED is more specific:

OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.

While the ED enforces Title IX compliance in responding to sexual assault complaints, it does not have the last word on the constitutional right to cross-examine witnesses in disciplinary proceedings where the accused faces expulsion. Federal courts have reviewed cases involving due process rights in student conduct proceedings and stopped short of requiring the right to cross-examine witnesses when a student faces expulsion, though the issue has not been finally decided.

Before his appointment as a U.S. Supreme Court Justice, Thurgood Marshall represented Alabama State College students who claimed a denial of due process because they were expelled for misconduct without a notice or hearing. The U.S. Court of Appeals for the Fifth Circuit agreed that due process required the school to give the students notice of and a hearing on the charges before they could be expelled. However, the court said the nature of the required hearing varied, depending on the circumstances. [Dixon v. Alabama State Board of Education (5th Cir. 1961) 294 F.2d 150, cert. denied, 368 U.S. 930 (1961)]

While the Dixon court concluded that a student misconduct hearing (such as one on sexual assault) would require more than a hearing on a failure to meet academic standards, it explained that "more" did not include the right to cross-examination:

By its nature, a charge of misconduct ... depends upon a collection of the facts ... [and] an opportunity to hear both sides in considerable detail ... This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses is required.

Citing the Dixon case with approval, the U.S. Supreme Court reviewed a case involving a 10-day suspension from high school and found the students were entitled to "some kind of notice and ... some kind of hearing," but the Court also acknowledged, without elaborating, that "[l]onger suspensions or expulsions ... may require more formal procedures." [Goss v. Lopez (1975) 419 U.S. 565, 579 and 584]

The U.S. Court of Appeals for the Second Circuit also cited the Dixon case when it acknowledged "[t]he right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings." [Winnick v. Manning (2nd Cir. 1972) 460 F.2d 545] Since Glen Winnick admitted that he participated in disruptive behavior in a classroom of students taking a final exam, the court said cross-examination of witnesses would not have changed the outcome and have "been a fruitless exercise." However, the Winnick court left open the possibility that "if a case of a substantial suspension of a state university student has resolved itself into a problem of credibility, 'cross-examination of witnesses might [be] essential to a fair hearing.'"

Following its Winnick decision, the Second Circuit again did "not find it necessary to decide the point" of whether students were entitled to cross-examine witnesses in a conduct hearing involving unauthorized use of a residence hall for a "sleep in." [Blanton v. State University of New York (2nd Cir. 1973) 489 F.2d 377] Again, the court left open the possibility that in student misconduct hearings where the central issue is whether to believe the accused or the accuser the right to cross-examine witnesses may be required.

In a case decided by the Eleventh Circuit Court of Appeals, two veterinary students who were accused of academic dishonesty sued their university for violating due process. They were not allowed to directly cross-examine adverse witnesses but were allowed to ask questions through the hearing officer. The court found, while due process required the university to allow the students to respond to the charges, due process didn't require cross-examination of witnesses since student "rights in the academic disciplinary process are not co-extensive with the rights of litigants in a civil trial or with those of defendants in a criminal trial." Therefore, the court concluded that there was no denial of due process. [Nash v. Auburn University (11th Cir. 1987) 812 F.2d 655, 664]

Finally, a U.S. District Court in New York found that a "higher level of formality to ensure fairness" was required to satisfy constitutional due process in a case where a male student accused of rape faced a two-year expulsion. The court described this "higher level" as:

At the very least, in light of the disputed nature of the facts and the importance of witness credibility in this case, due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser through the panel.

Absent a decision from the U.S. Supreme Court on this issue, the ED's position allowing questioning of adverse witnesses through the hearing officer — but not direct cross examination — does not violate constitutional due process.

Moreover, the ED's position is consistent with the policy of encouraging students to report incidents of sexual violence. The possibility of facing cross-examination by their assailants would discourage many victims from reporting sexual assault contrary to the goals of the Campus SaVE Act and the 2011 Dear Colleague Letter. These are laudable goals: protecting victims from secondary trauma, encouraging reporting, increasing accountability, reducing sexual assault, and making campuses a safer place to learn.

Standards of Proof

In a typical "he-said-she-said" case of sexual assault, he says it was consensual sex, and she says it was rape. These cases are usually decided on the accused's and victim's credibility, and the standard of proof used to reach a decision may tip the scales, as illustrated by a University of Montana (UM) case.

During its investigation of UM for Title IX compliance, the U.S. Department of Education (ED) reviewed a student conduct case in which the lower "preponderance of evidence" standard of proof was applied in the initial proceeding and the accused student was found guilty of sexual assault. After the student appealed, a higher "clear and convincing evidence" standard was applied and the decision was reversed.

The Department of Education has in fact established "preponderance of evidence" as the standard schools must use in cases involving sexual assault. As clarified in its April 2011 Dear Colleague Letter, "in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)."

Unfortunately, the ED has not provided any explanation of the different evidentiary standards. This post will define the standards of proof and look at how those standards apply in the decision-making process.

Three Judicial Standards

Three different standards are used in courts of law. Generally, each of the three judicial standards of proof¹ requires a different level of confidence in the facts supporting a decision:

• beyond a reasonable doubt requires at least 95% confidence that the facts support a guilty verdict
• clear and convincing requires at least 70-75% confidence that the facts support the decision
• preponderance of evidence requires at least 50.1% confidence that the facts support the decision

In reality, the decision-making process is not as precise as these percentages indicate, but they are one of the yardsticks used to measure the fairness of a decision. The different standards reflect the cost of a wrong decision, measured by the harm caused not only to the accused who is wrongfully convicted or the party that suffers financial harm in a civil suit, but to the legitimacy of the judicial system as a whole.²

The "beyond a reasonable doubt" standard of proof used in criminal cases greatly reduces the risk of convicting the wrong person and reflects the high value of personal liberty to society.³  The 18th Century English jurist William Blackstone explained it this way: "It is better that ten guilty persons escape, than that one innocent suffer."⁴  This standard is fundamentally fair and stops short of imposing the impossible burden of having no doubt that the accused is guilty.

The intermediate standard of clear and convincing proof requires a "high probability" or "reasonable certainty" that the weight of evidence favors the decision. It is applied in civil cases involving more than "mere loss of money," such as fraud or other quasi-criminal conduct, deportation, and permanent termination of parental rights.⁵

It is also the standard applied in involuntary commitment proceedings involving mentally ill persons. In Addington v. Texas, the U.S. Supreme Court concluded that, "[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous."⁶

The preponderance standard is the lowest of the three judicial standards of proof and requires that the weight of evidence makes it more likely than not that the decision is correct. This is the standard used in civil litigation that primarily involves a claim for money. Because the risk of harm involves dollars not loss of liberty society places a lower value on the risk of a wrong decision, which is shared equally by both parties.

As the ED confirmed in the UM "blueprint," preponderance of evidence is also the standard required in disciplinary proceedings involving sexual misconduct where the accused faces sanctions ranging from a verbal warning to expulsion from school, as well as a damaged reputation.

A fourth standard of proof, "substantial evidence," is defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"⁷ Strictly speaking, this standard only requires a "substantial" amount of evidence to support a decision. It does not require weighing all of the evidence and deciding which way the scale tips.

The "substantial evidence" standard is applied in disciplinary proceedings involving academic misconduct. In Missouri v. Horowitz, the U.S. Supreme Court found a student's failure to meet academic standards "calls for far less stringent procedural requirements," in terms of notice and hearing, than a student conduct violation.⁸

The Fourth Standard

While the ED requires the preponderance standard for Title IX compliance, the U.S. Supreme Court has not squarely answered the question of which standard of proof is constitutionally required in student disciplinary proceedings involving sexual assault. And lower federal courts have not clearly answered this question.

For example, in Smyth v. Lubbers,⁹ a federal court reviewing the suspension of a state university student for possession of marijuana concluded that the substantial evidence standard was not adequate under the circumstances of that case because a "conviction for 'possession of narcotic drugs' in violation of state criminal laws and/or College regulations is plainly an extremely serious attack upon a person's good name and reputation." The court also pointed out that a one-term suspension from school "is a harsher punishment than he was likely to receive from either a state court ... or a federal court, for a first-time offense of simple possession of marijuana."

Under these circumstances, the court found that "any standard lower than a 'preponderance of evidence' would have the effect of requiring the accused to prove his innocence" because the substantial evidence standard only requires that a (substantial) quantity of evidence support the decision. Instead, the court concluded a "constitutionally adequate" standard of proof in that case could not be lower than the preponderance of evidence standard, but the court didn't specify the appropriate standard.

On the other hand, in Gomes v. Univ. of Maine System,¹⁰ another federal court refused to overturn the university's decision to suspend two public university students after they were found guilty of sexual assault even though the university's decision was based on substantial evidence. The court found the disciplinary proceeding, while "not ideal," was fundamentally fair. The court explained the tension between these two principles:

A university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.

The middle ground was described as "whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial." Neither the Court nor the litigants questioned the substantial evidence standard used in that case.

Title IX Compliance Standard

Even when school officials know what standard of proof to apply, they may not understand how to apply it. Going back to the UM case we discussed at the beginning of this post, the official handling the appeal said he found the accused and complainant both credible. He also said he viewed it as "a case of differing perceptions and interpretations of the events in question." It turns out that the deciding factor was that some of the complainant's statements began with "I think" or "I don't think." The official interpreted this as a "hesitant and equivocal response" and concluded that the complainant's credibility did not meet the higher standard of proof.

The ED found that UM's handling of that case on appeal showed an "incomplete understanding" of how to assess credibility, victim responses, force and consent. Therefore, UM officials needed "more training on how to evaluate evidence and the appropriate evidentiary standard to assess it."

Interestingly, the U.S. Supreme Court expressed doubt about whether the different standards of proof actually affect outcomes or simply provide a way to measure the value of what's at stake:

Indeed, the ultimate truth as to how the standards of proof affect decision making may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a standard of proof "is more than an empty semantic exercise."¹¹

It has also been suggested that school officials deciding sexual assault cases may "unwittingly require clear and convincing evidence" regardless of the appropriate standard because of the serious consequences to the accused.¹² What we're left with are two possibilities: either the different decisions in the UM case were the result of applying different standards of proof, or one UM official simply believed what she said and the other official believed what he said.

How to evaluate victim credibility is a critical part of the disciplinary process. Brain research has provided insight into trauma victims' behaviors and responses that helps explain why their credibility is often met with skepticism. In later posts, we'll look further into this and other issues that provide a deeper understanding of the complicated nature of student disciplinary proceedings involving sexual misconduct.

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<sup>1. A corollary of the standard of proof is the burden of proof, which is placed on the party who filed a lawsuit or the prosecutor who brought criminal charges to present evidence that establishes the facts required to prove a civil claim or criminal charge in a court of law. Once evidence is presented, a decision is made by applying one of the three judicial standards of proof.
2. U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: "First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened ... In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. .... A second proposition ... is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In re Winship (USSCt 1970) 397 U.S. 358, 370.
3. In re Winship, 397 U.S. 370; Woodby v. Immigration and Naturalization Service (USSCt 1966) 385 U.S. 276, 285.
4. 4 William Blackstone, Commentaries *358.
5. Addington v. Texas (USSCt 1979) 441 U.S. 418, 431.
6. Id. at 428.
7. Universal Camera Corp. v. NLRB (USSCt 1951) 340 U.S. 474, 477.
8. Missouri v. Horowitz (USSCt 1978) 435 U.S. 78, 86.
9. In Smyth v. Lubbers (W.D. Mich. 1975) 398 F. Supp. 777, the court found that the narcotics violation was much more serious than "spiking the punch at an after-school meeting." However, the court did not rule on what standard of proof should be applied but only suggested that the "clear and convincing" standard may be required.
10. Gomes v. Univ. of Maine System (D.Maine 2005) 365 F.Supp.2d 6.
11. Addington v. Texas at 424-425, citing Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1166.
12. Note, "Preponderance of the Evidence and Student-on-Student Sexual Assault." Boston College Law Review Vol. 53:1613, 1649 (2012).</sup>

The University of Montana's Cautionary Tale

"A rape-tolerant campus with ineffective programming, inadequate support services for victim survivors, and inequitable grievance procedures threatens every student." Diane G. Barz, retired Associate Justice Montana Supreme Court, Investigation Report dated January 31, 2012

Yearlong federal investigations of the University of Montana (UM) provide a cautionary tale for colleges and universities about how not to respond to reports of sexual assault. The U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) concluded that UM's responses to female students who reported sexual assaults were delayed, inadequate, and discriminatory.¹

ED's Title IX compliance review of UM produced "a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault." The DOJ's parallel investigation of UM's Office of Public Safety (OPS) resulted in a "roadmap for reform" that "will stand as a model" for other schools to prevent sex discrimination from interfering with an effective response to sexual assault complaints.

These problems were not confined to UM's Missoula campus. The DOJ also investigated the Missoula Police Department (MPD) and reviewed over 350 reports of sexual assault made by Missoula women, including UM students, received between January 2008 and May 2012. In the opening paragraph of its May 15, 2013 Letter of Findings, the DOJ concluded that the MPD's "response to sexual assaults compromise the effectiveness of sexual assault investigations from the outset, make it more difficult to [uncover] the truth, and have the effect of depriving female sexual assault victims of basic legal protections."

We'll first look at the underlying problems that contributed to UM's "rape-tolerant campus" because policies and procedures alone cannot fix systemic problems. Instead, they require an ongoing commitment to effect change in attitudes that turn into action. In later posts, we'll discuss the specific steps to Title IX compliance laid out in the "blueprint" and "roadmap."

 

Acknowledging the Problem

Before the federal investigations, UM had been grappling with its sexual assault problem. In December 2010, a female student reported to the MPD that four UM football players drugged and raped her.² While the MPD found there wasn't enough evidence for criminal charges, police informed UM's football coach about the allegations, but that report was not passed along to UM administrators until a year later.³

In December 2011, Royce Engstrom had been UM's president for just fourteen months when he received a call about the allegations. Once President Engstrom became involved, UM hired retired Montana Supreme Court Justice Diane Barz to investigate sexual assault reports at UM. Her final report found nine incidents reported between September 2010 and December 2011. Her recommendations included making information and resources on sexual assault readily available, training UM personnel on how to report and respond to sexual assault, and educating students on the consequences of risky behavior.⁴

Despite Barz's report, there was internal resistance to acknowledging UM's sexual assault problem. Around that time, internal email messages showed that UM Vice President Jim Foley questioned UM Dean of Students Charles Couture's use of the term "gang rape" to describe the December 2010 incident. Foley suggested that Couture should have called it "date rape." Couture replied, "Jim, I used that term [gang rape] when I accused the four football players of rape … because that is what it was.”

Over the next six months, Engstrom had fired UM's football coach and athletic director, and Foley had stepped down as UM's Vice President.

But just a month after Justice Barz's report, two more women complained to UM employees that they were sexually assaulted on the same night by the same male student, but he fled the country after UM's Dean of Students notified him of the charges and there was a one-week delay in reporting the incidents to local law enforcement.

 

Sexual Assault Case Reviews

Against this backdrop, the ED and DOJ reviewed UM's responses to twenty-three sexual assault complaints and ten sexual harassment complaints received by UM over the prior three school years. They found that UM's delayed and inadequate responses to complaints resulted in students not feeling safe on campus, suffering mental health problems, becoming suicidal, withdrawing from classes, or leaving the University altogether.

A sampling of cases discussed in the ED and DOJ's Joint Letter of Findings shows that UM's problematic responses were not confined to a particular area. In one case, the UM official investigating a sexual assault complaint knew that the victim was upset because she repeatedly saw her attacker on campus, but took no steps to protect her. Another sexual assault victim's roommate reported to their Resident Assistant (RA) that the victim was suicidal. The RA reported this to the Residence Life Office but there was no record of any action taken to ensure her safety. In yet another case, sufficient evidence was found to expel the student accused of sexual assault, but he was allowed to stay on campus for six more weeks to finish the semester. While the victim had left the University shortly after she reported the sexual assault, allowing her attacker to remain on campus may have left other students at risk of assault or harassment.

In two other cases, UM stopped its investigation because it "assumed the victims had stopped cooperating," even though UM had not received any communication from the victims that they no longer wished to continue with the grievance process.

Given these experiences, it is not surprising that other students were reluctant to report sexual assault because they feared retaliation, or that the University wouldn't respond, or, if it did, would respond negatively. One student said that University employees said things that indicated they didn't believe her. Another former student said she didn't report being sexually assaulted by a football player because they "could get away with whatever they wanted." Other students, community members, and faculty echoed that assessment, with some people saying that football players were treated like they were "Gods."⁵

And the DOJ's investigation of UM's campus security revealed another major problem: OPS's responses to student reports of sexual assault were "marked by confusion, repetition, and poor investigative practices."

For example, one OPS case narrative focused on the woman's alcohol-scented breath and "clean and undamaged" clothing. A victim advocate said OPS interviews were "painful" for the victims because they were interviewed by several officers who asked "very personal questions" without warning or explanation of their relevance, and students were also discouraged from filing a police report. Victims who did report their assault to the Missoula Police Department (MPD) had to relive their trauma by answering the same questions because OPS officers didn't provide MPD with enough information.

Two OPS officers described a sexual assault reported in a university residence hall as "regretted sex." And OPS Chief Taylor told investigators that the responding officer's job is to determine if the sexual assault is "provable." However, as the DOJ found, determining the veracity of the woman reporting a sexual assault before a thorough and unbiased investigation is completed not only indicates a failure to adequately respond to sexual assault, but "is particularly problematic given the data showing that the overwhelming majority of sexual assault allegations reported to the police are true."⁶

Based on ample evidence, the DOJ concluded that the OPS's "failure to adequately respond to reports of sexual assault is due at least in part to gender discrimination." By discouraging them from reporting sexual assaults to law enforcement, OPS discriminated against women, deprived them of basic legal protections, and put their safety at risk.

 

Systemic Change

With mounting evidence and media coverage of UM's sexual assault problems, Missoula City Councilman Dave Strohmaier told over 100 community members gathered to hear from UM and community leaders, "If there are systemic problems with how we are addressing violence within our community then we absolutely need to move aggressively on all fronts to address it."

As Justice Barz said, a rape-tolerant campus climate threatens every student. So, Title IX requires that when systemic problems discourage students from reporting sexual assault, schools must take "actions … to address the educational environment, including special training, the dissemination of information about how to report sexual harassment, new policies, and other steps designed to clearly communicate the message that the college or university does not tolerate, and will be responsive to any reports of, sexual harassment."

The ED's and DOJ's findings and conclusions in the UM case show that a top-down strategy is the foundation for creating a campus culture that does not tolerate sexual assault, and that other key components of the ED-DOJ strategy are education and effective procedures for handling problems when they arise.

In future blog posts, we'll dig deeper into the UM investigations and the resulting documents that provide the ED's and DOJ's "blueprint" and "roadmap" for schools on how to respond to sexual assault, create a safe learning environment, and avoid becoming a cautionary tale.

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<sup>1. The settlement agreement relating to the Title IX compliance review among UM, the DOJ, Civil Rights Division, and ED, Office for Civil Rights is set forth in the Resolution Agreement dated May 9, 2013. The settlement agreement between the DOJ and UM Regarding OPS's Response to Sexual Assault is set forth in the Memorandum of Agreement (MOA) dated May 9, 2013.
2. Another female student reported that she was drugged and raped around that same time but did not want to pursue action against her assailants (Investigation Report dated January 31, 2012).
3. Missoula County Attorney Fred Van Valkenburg discussed the case with a local newspaper reporter, stating "I think that clearly the evidence in the case indicates that what happened was with consent, not without consent," he says. "There may have been sex with more than one person—that may seem sort of odd to people that someone might agree to have sex with more than one person—but I don't think because it's odd makes it automatically a non-consensual situation."
4. Justice Barz also noted, "I am disappointed with the lack of response from students with knowledge of house parties where the incidents were alleged to have occurred. Some that have been questioned have not been truthful. I believe 'lying' is also covered under the Student Conduct Code" (Investigation Report dated January 31, 2012).
5. In August 2012, the New York Times reported pending rape charges against two UM football players, and a "widespread feeling in Missoula that players had been coddled, their transgressions ignored or played down." In January 2013, running back Beau Donaldson pled guilty to rape and was sentenced to ten years in prison. Quarterback Jordan Johnson was acquitted on rape charges on March 1, 2013.
6. The Letter of Findings cites Kimberly A. Lonsway, Joanne Archmbault & David Lisak, "False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault," 3 The Voice 1-3, NDAA's National Center for the Prosecution of Violence Against Women (2009).</sup>

New Developments in Title IX and Transgender Students

A recent settlement in California suggests schools will need to be more proactive in accommodating transgender students under Title IX.

In July, the Department of Justice (DoJ) and the Arcadia Unified School District in California reached a resolution agreement based on a complaint that the district violated Title IX by denying a transgender student equal access to education programs and facilities.

The student, whose birth sex was female, has identified as a boy since a young age. With his family's support, he began transitioning from female to male in the fifth grade. He asked to be called by masculine pronouns, adopted a traditionally male first name, and wore male clothes. The student's classmates quickly accepted his transition to male.

The school district, however, was less accommodating. It wouldn't let the student use the boy's bathroom or locker room. When changing for gym class, he had to use the school's health offices, even though he had used the same boys' locker room — without incident — during a summer camp held at the middle school.

And when the boy's class went on an overnight field trip, the district forced the student to stay in his own cabin with a parent while other students shared cabins. The student had requested several other boys as cabin mates, and indeed, several boys had requested him.

After the student filed complaints claiming the school district was violating Title IX, the district reached a resolution agreement with the DoJ. They agreed to permit the student to use male-designated facilities and "otherwise treat the Student as a boy in all respects."

On the heels of this agreement, California passed a law to protect transgender students from sex discrimination and clarify existing protections.

In language that recalls the situation at Arcadia, the bill requires that "a pupil be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records." The California bill is the first of its kind in the US.

 

Accommodating Transgender Students

Both the agreement and the new California law indicate a growing understanding among lawmakers and regulators that schools are responsible for accommodating transgender students.

As the resolution agreement between Arcadia and the DoJ states, "All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX."

The Arcadia agreement suggests the Department of Education and DoJ's greater willingness to enforce these aspects of Title IX. Erin Buzuvis wrote at Title IX blog that the Arcadia case "represents the first time that the Department of Education has considered under its jurisdiction to enforce Title IX a claim involving discrimination on the basis of transgender gender identity."

Universities and colleges should review their policies and procedures to make sure they have the proper policies and procedures to work with transgender students.

 

Indeed, in the past few years many universities and colleges have already been experimenting with ways to better accommodate transgender students. Here are a few examples worth considering:

• Some colleges allow students to include their preferred names and pronouns on a class roster instead of their legal names, so students don't have to 'out' themselves as transgender by correcting a professor in front of a full classroom. 
• The University of Arkansas at Fort Smith agreed to allow a transgender student who identified as female to use women's restrooms. Previously, she had been restricted to using gender-neutral restrooms.
• Oxford University in the UK changed its dress code so students don't have to wear ceremonial clothing specific to their gender.
• Smith College clarified its statement on gender identity and expression to address transgender students at the all-women's school.

Despite these promising developments, there is still considerable debate on some campuses about what constitutes reasonable accommodations for transgender students.

For instance, this August, the UNC Board of Governors halted a plan by its Chapel Hill campus to offer gender-neutral housing, which allows students of different genders to share apartments and suites, sidestepping problems with single-sex housing for transgender students and providing them a safe space on campus.

 

Schools can expect these debates about gender-neutral housing and access to single-sex facilities to start playing a larger role in discussions about Title IX.

 

Clery Act: Stricter Enforcement and New Requirements

After Jeanne Clery was raped and murdered in her Lehigh University dorm room in 1986, her parents fought to give other families access to information about campus safety, which they hoped would help prevent violence at colleges and universities. Out of their efforts grew the Clery Act, requiring colleges and universities to disclose statistics about crimes that occur on and around their campuses in an Annual Security Report (ASR).

Schools began submitting ASRs in 1992, but enforcement of the act has been lax. According to a 2005 National Institute of Justice report, only 37 percent of schools reported statistics in a manner consistent with federal laws. Yet Senator Arlen Specter claimed in a 2006 Senate hearing that the Department of Education (ED) had imposed only three fines in 20 years.

Now it looks like ED is getting serious about the issue of campus safety and is no longer issuing free passes to noncompliant colleges and universities.

Even as ED ramps up Clery Act enforcement, a series of high-profile complaints filed by students across the country suggest a popular groundswell against noncompliant schools. A group of student activists even hand delivered a petition to ED requesting stricter enforcement of the Clery Act and Title IX.

New Federal Requirements

Indeed, the federal government placed campus safety front and center on March 7, 2013, when they enacted the Campus Sexual Violence Elimination (SaVE) Act. The SaVE Act expanded the crime categories in a school's ASR to include:

• hate crimes based on national origin, sexual orientation, and gender identity
• domestic and dating violence
• stalking

The SaVE Act also requires schools to create policies and education programs for students and staff that promote awareness and focus on prevention of sexual violence. These education programs are aimed at preventing sexual violence and will bolster the ED's enforcement effort to bring about lasting change.

Given the tragic consequences of sexual violence, helping students stay safe is a goal we all share and support.