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>

Why Your Course Materials Might Violate the ADA

The Government Accounting Office (GAO) reported that in 2008 nearly 11 percent of postsecondary students had a disability, ranging from visual to motor impairments. Though administrators and faculty may be familiar with some common accommodations for disabled students such as extra time on exams and note takers, they may not know that they also need to ensure textbooks, websites, handouts, and similar course materials are accessible.

For example, roughly 100,000 to 200,000 postsecondary students have print disabilities, meaning they cannot read standard print because of physical, developmental, or learning disabilities. Legally, schools need to make reasonable accomodations for these and other disabilites that prevent students from accessing print and digital content.

The lack of accessible materials can have serious effects on a student's success, causing them to fall behind or even withdraw from courses without access to the same materials as their classmates.

Three high-profile cases settled in the first-half of 2013 illustrate the importance of making sure all course materials are accessible.

• In March, South Carolina Technical College System entered into an agreement with the Department of Education's Office for Civil Rights (OCR) over findings that its websites were not accessible to visually impaired students. It agreed to develop a resource guide of accessibility requirements, make its websites accessible, and annually review its websites and address accessibility problems.
• In May, the University of California at Berkeley reached a settlement with Disability Rights Advocates (DRA) to ensure that students with print related disabilities had access to all necessary materials. Berkeley agreed to implement policies and procedures to provide access to print materials through alternative media solutions, interim accomodations, or personal readers.
• In July, the Department of Justice (DOJ) settled with Louisiana Tech University over claims that the university used an online learning product that was inaccessible to blind students. The university will make learning technology, web pages, and course content accessible, and train its instructors and administrators on accessibility requirements. 

 

Training the Faculty

As these recent cases illustrate, the push to move course material online is creating new challenges (and opportunities) with regards to accessibility. Indeed, as more students with disabilities enroll in colleges and universities, faculty will increasingly need to be forward-thinking to ensure their textbooks, handouts, and online materials are fully accessible.

Part of the Louisiana Tech agreement explicitly requires the university to train "all individuals who provide any course-related instruction to University students (including, but not limited to, professors, instructors, other faculty, and teaching assistants)" on accommodation requirements and best practices.

Indeed, at this year's annual meeting of the National Association of College and University Attorneys, L. Scott Lisner of Ohio State University spoke to this issue:

"I used to say I didn’t want individual faculty members making individual accommodations for their students. Now I need 5,000 content creators to be creating accessible content...I don’t expect a faculty member to convert a textbook, but it is not unreasonable of them to convert a 20-page article on a webpage into an accessible format."

(Quoted in Online Accessibility a Faculty Duty at InsideHigherEd). Lisner is the president of the National Association on Higher Education and Disability.

Faculty can also help students understand their responsibilties. Unlike high schools, colleges and universities do not need to identify students with disabilities or document their needs. Thus a greater burden rests on the students' shoulders. They must identify themselves, provide documentation of their disabilities, and request accommodations. This means that new students with disabilities may not be aware of their responsibilities at the university level.

For example, the Berkeley settlement includes Alternative Media Guidelines for disabled students. The guidelines provide students with information on requesting and receiving accessible course materials.

So, as the new school year starts, here are some important questions to ask about your own campus's accommodation procedures.

• Does your school have an individual who coordinates the school’s compliance with the Rehabilitation Act and ADA, as required by law?
• Do you have professionals evaluate accommodation requests on a case by case basis?
• Do you have well-publicized grievance procedures to ensure prompt and equitable resolution of complaints?
• Are faculty members aware of their responsibility to accommodate students with disabilities? Do they know how?
• Are course websites and your school's learning management systems accessible?
• Do you reach out to students with disabilities who may not be aware of the services your school provides or how to get them?

 

Further Reading

Grasgreen, Allie. "Audiobooks Aren't Enough," InsideHigherEd. 26 July 2013.

Rothstein, Laura. "New Legal Questions About Diability Demand Colleges' Attention." Chronicle of Higher Education. 5 August 2013.

ADA best practices toolkit for websites

Joint Dear Colleague Letter on "Electronic Book Readers," Department of Education and Department of Justice

Department of Education FAQ

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.