Department Of Education’s Office For Civil Rights Rules Against Princeton

Title IX was enacted as a “civil rights” law for the purpose of guaranteeing women full equality in education, as well as protection from discrimination (including sexual assault), on par with the same rights that had already been accorded other protected class categories such as race and national origin. Despite this simple reality, Title IX was widely propagandized and misunderstood in society for decades as a “sports equity” rule for women.

The Department of Education’s Office for Civil Rights recently announced that Princeton University had significantly failed to comply with women’s rights under Title IX with regard to its sexual assault policies. OCR’s analysis centered around whether Princeton complied with key components of “promptness and equity,” including the following:

  1. Notice of the procedures, including where complaints may be filed;
  2. Application of the procedures to complaints of discrimination and harassment;
  3. Adequate, reliable, and impartial investigation of complaints;
  4. Designated and reasonably prompt time frames for major stages of the complaint process;
  5. Written notice to parties of the outcome of the complaint and any appeal;
  6. A statement of the school’s jurisdiction over Title IX complaints;
  7. Adequate definitions of sexual harassment, which includes sexual assault, and an explanation as to when such conduct creates a hostile environment;
  8. Notice that a Title IX prohibits retaliation’
  9. Notice of a student’s right to file a criminal and Title IX complaint simultaneously;
  10. Notice of interim measures that may be taken to protect the student in the educational setting;
  11. Notice that the applicable “preponderance of the evidence” must be used.
  12. Notice of potential remedies;
  13. Notice of potential sanctions against perpetrators;
  14. Sources of counseling, advocacy and support.

At the conclusion of its investigation, OCR determined that Princeton has since “corrected many deficiencies.” However, in a signed “Resolution Agreement” submitted by Princeton to OCR on October 12, 2014, OCR said it will conduct further review of the proposal in connection with an ongoing “monitoring” process to ensure Princeton’s full compliance with Title IX. Click Here for the Full Text of the Resolution Agreement

Along with an unprecedented OCR case against Harvard Law School, the investigation of Princeton caused the Department of Education to issue an excellent “Dear Colleague Letter” (DCL) in April 2011. The DCL provided clarity and guidance regarding the obligation of schools to comply with Title IX when dealing with sex-based violence on campus, and was widely seen as a major step forward in the fight against an epidemic of sexual assault in higher education.

In an important section in the decision letter, OCR noted, “[a] university may use student disciplinary … procedures (meaning procedures that are set up separate and apart from Title IX and civil rights redress procedures) for these complaints, (“these” refers to sex discrimination, sexual harassment, and sexual assault/violence.”)

Indeed, OCR emphasized that schools that choose to subject women to two-track segregationist policies by redressing SOME sexual assaults under generic disciplinary procedures must STILL apply Title IX standards under those generic procedures: “A university may use student disciplinary or other separate procedures for these complaints, however, a university’s grievance procedures for handling discrimination complaints (including presumably sexual assault/violence) must comply with the prompt and equitable requirements of Title IX.” This important sentence acknowledges the disturbing capacity of many schools to use the very existence of parallel tracks as a way of obfuscating the singular nature of violence against women as a civil rights problem on campus, on par with all forms of civil rights harassment and violence based on categories such as race and national origin. Obfuscation through the development of cumbersome boondoggle policies, unfair standards of proof and even the early propagandizing of Title IX as a sports equity law is the primary reason so many victims have been denied equitable redress on campus since Title IX’s enactment in 1972.

By explicitly noting that schools are not mandated to have two different policies, OCR is clarifying that schools can CHOOSE to address all forms of violence and harassment of women under ideal Title IX standards, without implying that SOME forms of violence are not important enough to be treated with promptness and equity.

Finally, OCR pointed out that although “promptness” is mandatory under Title IX, and promptness typically means a resolution is reached within 60 days, the appeals process is not included in the 60-day time limit. This means there is no time limit whatsoever on how long a school can take to resolve an appeal, which is unconscionable because a victim could be made to wait until the literal day of her graduation to learn that a perpetrator’s appeal was granted, and that the ruling against him was overturned in violation of Title IX, leaving the victim with no meaningful recourse because she has no hope of achieving effective review from OCR or the courts AFTER graduation.

Again, excluding the time for appeals from the definition of promptness is not REQUIRED under Title IX, which means schools can CHOOSE to resolve complaints as well as appeals within 60 days if they want victims to have truly “prompt” redress on campus. For example, a school can state that an investigation and decision will be determined within thirty days, and all appeals, rehearings, and final determinations will be decided within thirty days thereafter. This is clearly reasonable given that schools routinely resolve more complicated misconduct cases (including appeals) in a similar short time frame and sexual assault cases are particularly easy to resolve because they typically involve the statements of only two people.

The DCL was an excellent document that, for the first time in decades provided new insight and clarity regarding how schools must comply with Title IX when addressing violence against women on campus. A backlash soon followed and a new federal law (The Campus SaVE Act) was filed to overturn the DCL and weaken Title IX.

Advocates were told the SaVE Act would “codify” the DCL but that was a lie. The few good provisions were soon removed and replaced with harmful language that would allow schools to subject the redress of violence against women on campus to worse standards than ever before; far worse than standards used to redress other forms of civil rights violence on campus based on categories such as race and national origin.

THE CONSEQUENCES OF INADEQUATE REDRESS

In an ideal school policy, there is no room for an offender or a school official to have doubts because only the individual who suffered the indignity of an unwanted intrusion into her body can decide whether the intrusion was “unwelcome” and “unwelcome” is the ONLY standard that can be applied under Title IX. Civil rights laws are not concerned about murky concepts like consent and “affirmative consent” because these criminal law ideas are far more burdensome on women than “unwelcomeness” in that they allow for offenders’ “mistakes” to trump the ACTUAL desires of victims. Title IX guarantees 100% respect. Concepts such as non-consent and “affirmative consent” do not; they force women to cede a certain percentage of that 100% authority by allowing attackers to assert a “mistake” defense, and then school officials use the “mistake” defense to justify taking no action against perpetrators. This is not to say there can never be a case where a sincere individual makes a legitimate mistake, but the rules should not be designed to normalize such “mistakes.”

Until all schools fiercely ensure women’s autonomy and bodily integrity, parents and students must hold schools accountable by demanding that they adopt only singular policies that apply ONLY Title IX standards to all forms of violence against women on campus.

Full equality for women will only emerge from schools that proudly refuse the two-track option and openly boast about wanting to be known as a place where treating women with respect is not just polite, it’s essential to the preservation of civilized society.

According to a recent study by the United States Center for Disease Control (CDC) in a nationally representative survey of adults, 37.4% of female rape victims were first raped between ages 18-24. In a study of undergraduate women, 19% experienced attempted or completed sexual assault since entering college.

The following two tabs change content below.
Wendy Murphy
Wendy is an adjunct professor at New England Law|Boston where she has taught a seminar on sexual violence for more than ten years. She developed and directs two projects in conjunction with the school’s Center for Law and Social Responsibility. The “Sexual Violence Legal News” project is an alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The “Judicial Language Project” uses socio-linguistic research to critique the language used in law and society to describe violence against women and children. She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught “Reproductive Rights and Technologies” at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has also taught courses in reproductive technologies and constitutional criminal procedure. She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992. Wendy wrote the first-ever law review article connecting sexual assault to Title IX in 2006 and filed the first-ever OCR policy complaint against a university in 2002.

No Comments

    Leave a Reply