Title IX holds colleges accountable for assault
With the recent swell in Title IX investigations aimed at colleges and universities around the country this year, the question of whether colleges and universities are equipped to handle cases of sexual assault has been in the national spotlight.
As of September, Brandeis has been added to this list of over 75 colleges and universities that are currently under federal investigation by the Department of Education’s Office for Civil Rights for potential violations of Title IX rights. The Office of Civil Rights will be investigating alleged mishandling of a case on behalf of an accused student—who was found guilty of sexual misconduct after a Special Examiner’s Process took place—after the student filed a complaint against the University for non-compliance with Title IX.
History of Title IX
Title IX originated in the Educational Amendments of 1972, amendments to the Higher Education Act of 1965. Title IX bans gender discrimination in educational programs and institutions that receive federal funding, which includes Brandeis. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” the section reads.
Since the implementation of Title IX, a succession of court cases have upheld the legality of universities being obligated to handle sexual assaults that are reported to them or occur on their campuses. A June 6 Chronicle of Higher Education article highlights several of these cases.
The 1980 case Alexander v. Yale University led many campuses around the country to develop sexual harassment policies. Although the district court in Connecticut ruled that the plaintiffs in the case had not been subjected to sexual harassment, the court set the precedent that sexual harassment is, in fact, considered a form of discrimination. Yale was forced to implement a grievance procedure at that point.
Franklin v. Gwinnett County Public Schools, a 1992 case, set the precedent for considering sexual assault a form of harassment and that educational institutions must address this issue. However, the case did not involve universities and focused on a student-teacher relationship. It was not until Davis v. Monroe County Board of Education in 1999 that schools were deemed liable for student-on-student sexual assault, although, again, universities were not mentioned in the precedent—public elementary and secondary schools were the focus.
Procedural Changes at Brandeis
Two years after Alexander v. Yale, in 1982, Brandeis formalized its own procedure for handling sexual assault, according to an April 29, 1982 Justice article. The previous procedure, according to a March 16, 1982 Justice article, had been an ad hoc grievance procedure—one without a formal or well-defined process. The solidified process involved first filing an informal complaint and attempting conciliation. If an agreeable solution was not reached, the complaint could go through a formal process.
More recently, in April 2011, the Department of Education clarified schools’ responsibilities with a “Dear Colleague Letter.” The letter expresses in more specific detail the rights of survivors and individuals involved in the process and explains Department of Education preferences and requirements for grievance and investigation procedures.
At the time, the University’s decision-making process for sexual assault and harassment cases was run through the Student Conduct Board. Students on that board expressed concerns, according to former Senior Vice President of Communications Ellen de Graffenreid in a June 30 email to the Justice. “At the same time, reviewing practices of our peers and national discussions on the issue, there were strong indications that it would be far more supportive of accusers to create a mirror process for issues of sexual misconduct, a process that would include investigations led by individuals deeply experienced in the field,” she wrote.
As a result, the University implemented changes consistent with both the directives of the Department of Education and the perceived best practices in higher education during the 2012 to 2013 academic year. Brandeis created the Special Examiner’s Process, for which “generally outside consultants were employed for the complex investigations of sexual misconduct,” wrote de Graffenreid. A “preponderance of the evidence” standard was also adopted. The decision-making process remained with the Dean of Students, or the Vice President for Student Affairs, “but without a Conduct Board, faculty members raised concerns about decisions being made by a single individual,” wrote de Graffenreid.
Therefore, the process was changed once again for the 2013 to 2014 academic year. The decision-making role was now designated by the senior vice president for students and enrollment, and the process was amended to include a panel of three staff and faculty who recommend disciplinary sanctions to that decision maker.
“Brandeis staff members have striven in every way to meet the spirit and letter of all of these changes, including the ongoing interpretations of Title IX and directives of the Violence Against Women Act,” wrote de Graffenreid. “We continue to constantly evolve our entire conduct code and process, for compliance as well as seeking the best ways to support our student community.”
Perspectives on the procedure
The accusing party in the recent case that drew national attention and has led to the Title IX investigation on Brandeis called attention to the importance of a system at the University. “I didn’t want to start a police investigation because, statistically, … very few cases of sexual assault that go to the courts are found in favor of the survivor,” the student said in an interview with the Justice. “[T]he number of cases that are successful in the LGBT community are even fewer, so I didn’t think that it would really be worth [it].”
The accused party in this particular case argued, however, that the University is not at all equipped to handle the issue of sexual assault. “This is evident from the experience of both the Accused and Accusers. Neither feel as though their rights are being respected,” the accused party wrote in an email to the Justice. “No one at Brandeis is properly trained enough or well equipped enough to handle this matter. Therefore, only law enforcement, which can convict and imprison those found guilty of rape and sexual assault, should have jurisdiction over this matter.”
Chairman of the Student Conduct Board Matthew Chernick ’16 said in an interview with the Justice that “[the new process] provides a higher level of privacy, security and safety for everyone when it’s done through a professional.”
However, the University remains cognizant of its limitations. “No process on such complex matters will be perfect, and universities are not designed as criminal justice systems. That being said, the process that has been established at Brandeis exemplifies the best practices as they are currently understood,” de Graffenreid wrote in an email to the Justice.
Chernick added that such limitations are reflected in the language and terms used by the Student Conduct Board and the University in sanctions and the decision-making process. Students, he said, are found “responsible for,” and not “guilty of,” certain actions.
“[T]he conduct board is not a court of law,” said Chernick. “None of our educational-based sanctions are meant to have legal implications. The Board is supposed to be creating educational discourse about violations of what we hold as our standards as a community at Brandeis, and part of our idea is to educate the person that is held responsible.”
The University, while undergoing a Title IX investigation, has continued to amend the process and the contents of the Rights and Responsibilities handbook. A draft of the updated 2014 to 2015 handbook clarifies that the dean of students plays a role in the process as opposed to a senior student affairs officer or designee, avoiding future confusion over who is responsible for undertaking which aspects of the process.
The draft also includes more specific definition of consent, as well as a set list of punishments depending upon the findings. “Forcible non-consensual intercourse” has been placed in a class of its own, and is the first and only violation of sexual conduct that has a required punishment of dismissal from the University should a student be found guilty, according to the updated handbook.
“There will always be issues involving definitions—they’re definitions. But we are working with the best possible definitions, most handed down through the government and worked out through the professionals we brought onto campus,” said Chernick.