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The Great Equalizer

Dear Colleague:

Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights believe that providing all students with an educational environment free from discrimination is extremely important.

Thus began the letter sent to colleges around the country on April 4 by the Office for Civil Rights of the federal Department of Education. Nineteen pages long, it expressed concerns about national statistics on sexual violence in institutions of higher education and outlined the responsibilities of these colleges and universities, under Title IX of the Elementary and Secondary Education Act, to take “immediate and effective steps to end sexual harassment and sexual violence.”

In recent years, the Office for Civil Rights has issued similar advisory letters regarding bullying, gender discrimination in collegiate sports, and single-sex education. But Jim Bradshaw, a Department of Education spokesman, noted that this was the first time an administration has ever issued guidance specifically dealing with sexual violence. April’s letter is also unprecedented in mandating specific policies. “Dear Colleague” letters in the past have left details to the discretion of individual schools. But this time, the Office for Civil Rights is requiring that administrators include specific language in student codes of conduct. The letter also stipulates what some worry is a low standard of evidence that could lead to wrongful punishments in sexual assault cases. Universities must comply or else they could face litigation or lose federal funding.

The letter covers everything from disciplinary procedures to freshman education programs, emphasizing respect and protection for victims and transparency on policies and programs. The obligations discussed in the letter also apply to secondary schools.

The Dear Colleague letter is not surprising in light of the many cases of collegiate sexual violence that have made the news in recent years. At Arizona State University, a rape survivor successfully sued the school under Title IX in 2006 for allowing her attacker, a football player, to return to campus after dismissing him for prior sexual misconduct. A woman at the University of Colorado won a Title IX suit in 2007, receiving a $2.5 million settlement from the university after proving it had failed to address a hostile sexual environment that led to her rape. Eastern Michigan University was fined $357,000 by the Office for Civil Rights in 2006 for failing to notify students of an on-campus rape and murder. These are just a few examples.

“It was clear from OCR’s work investigating individual complaints, conducting compliance reviews, and responding to technical assistance requests that universities needed assistance in determining how Title IX applies in cases of alleged sexual violence,” Bradshaw explained.

The Office for Civil Rights is hoping the Dear Colleague letter will clarify a university’s responsibilities when it comes to sexual violence and that these recommendations and guidelines will help to create campuses in which sexual assault occurs less frequently, or when it does occur, to assure that the victims can find emotional and disciplinary resolution.

When asked if schools are ever uncooperative, Bradshaw said, “It’s rare.” He also explained that the first action the Office for Civil Rights initiates with a non-complying institution is to negotiate a resolution agreement with the university to bring it into compliance. He said that in the vast majority of cases, this is sufficient action.

Pomona College in Claremont, California, is one school that has responded swiftly to the letter. The school revised its code of conduct in September, bypassing the student comment period typically required for such changes because the change was federally mandated. Instead, the school held a two-week period for student discussion after enacting the new policy.

Zach Schudson, a junior at Pomona and a member of the student group Advocates for Survivors of Sexual Assault, said that he appreciated how conscientious the administration at Pomona has been in engaging with issues of sexual violence. “People like to pretend that this is a wonderful place, but it’s not perfect,” Schudson said. His classmates assume “that people who come to this school all come from white, middle-class backgrounds with liberal parents, and that those who haven’t experienced hardship in life, won’t experience it, and won’t cause it,” he added. “That is a very dangerous assumption.”

Pomona already had a number of policies in place intended to prevent sexual assault and to support and protect victims before receiving April’s letter. These included providing private and group counseling for survivors, in addition to the support Schudson’s group offers. Pomona also allows a victim to request special academic considerations, such as dropping a class without penalty after the regular deadline if the assailant is also in the class. The university recently added a session to its freshman orientation program for a more engaging and thorough discussion of sexual assault.

One of the more important new policies adopted this fall, however, met with criticism from some Pomona students. The Dear Colleague letter requires that schools use a “preponderance of evidence” standard of proof in grievance procedures for sexual harassment or assault. If sexual harassment or violence is more likely than not to have occurred, then a student can be punished. The standard is now part of Pomona’s student disciplinary code.

The legal system employs various standards of evidence for different levels of litigation. In criminal trials, the standard is highest, requiring the prosecution to prove guilt beyond a reasonable doubt. But in most civil suits, as well as in some criminal proceedings such as parole violation hearings, the plaintiff must only provide a preponderance of evidence. This is also the standard of proof used in grand jury proceedings. In a 2002 National Institute of Justice study, approximately 80 percent of the schools that identified a particular evidentiary standard for sexual-assault disciplinary proceedings already employed the preponderance of evidence standard.

Despite the standard’s prevalence, national organizations such as the American Association of University Professors and the Foundation for Individual Rights in Education have criticized it. Both groups have sent letters to Assistant Secretary Russlynn Ali at the Office for Civil Rights questioning whether the lower standard still complies with the basic principles of the judicial process and expressing reservations about the severity of consequences for the falsely convicted, comparing the standard to a “tie goes to the runner” mentality.

The editorial board of The Student Life, the weekly newspaper at Pomona, also objected to the new standard, claiming that it discounted “the value of a legal right that lies at the heart of our democratic process.”

A few days later, The Student Life published a response from Schudson. He argued that the preponderance of evidence standard of proof is an appropriate response to this unique type of case because sexual assault does not always result in forensic evidence.

Schudson cited data from a 2010 study by David Lisak, a psychologist at Northeastern University, and several of his colleagues, which estimated the rate of false rape allegations over one ten-year period at just under 6 percent. As Schudson wrote, “the presumption of ‘innocent until proven guilty’ that protects alleged perpetrators mutates into a presumption of ‘lying until proven truthful’ for survivors.”

Schudson’s response is compelling. Just as much as alleged perpetrators of sexual assault deserve to be presumed innocent, victims of assault should not be presumed liars. Preponderance of evidence is a good compromise between both parties in cases such as these, where hard evidence is often difficult to find. Many criticisms of the standard may ultimately stem from an assumption that women who accuse men of rape are often untruthful, or from a mistaken belief that sexual assault is uncommon.

The University of Maryland is also working to include the preponderance of evidence in its code of conduct in response to the letter from the Office of Civil Rights. Currently, the university’s published Code of Student Conduct states that in all cases brought before the grievance boards, the “burden of proof shall be upon the complainant, who must establish the guilt of the respondent by clear and convincing evidence.” Diane Krejsa, senior university counsel at Maryland, explained that a separate committee has also been meeting every other month since the summer to review any needed changes and updates to the university’s disciplinary procedures for sexual assault cases.

But in Maryland’s case, students had also been fighting administrators for greater transparency. For three years, a group of persistent journalism students and one professor worked on a project to track cases of sexual assault at their university. Just weeks before the Dear Colleague letter was sent to campus officials, the students obtained a list from Maryland’s Office of Student Conduct of all the students in the past decade found guilty of sexual assault. Sue Kopen Katcef, a lecturer in the Merrill College of Journalism at Maryland, led the students in investigating sexual violence there. When she first presented the idea to her journalism class three years ago, she said, “[My students] looked at me like I was crazy.” But by the end of the semester, both men and women in the class had committed themselves to the project, upset by the predatory behavior of some of their fellow students. The students that year produced an award-winning radio program based on their research.

Katcef didn’t stop there. Semester by semester, she helped her students follow the laws all the way to the top of the state of Maryland’s legal system. The university at first refused to release the names of guilty students by claiming they were protected under the federal Family Educational Rights and Privacy Act. Sexual violence “is not something that’s unique to the university of Maryland,” Katcef said. “This is a problem that is pervasive on college campuses, private and public, across the country.”

In 2000, the National Institute of Justice and the Bureau of Justice Statistics collaborated on a comprehensive survey of college women about sexual assault. Their data demonstrate that in fact nearly 5 percent of college women are victimized (experience completed or attempted assault) each calendar year. The conclusions of this Department of Justice survey, when applied to a campus of over 26,000 undergraduates, half of them female, indicate that an average of 675 women at Maryland may be victims of attempted or completed sexual assault each year.

When Katcef’s students finally obtained the list of students who had been disciplined by Maryland’s grievance boards in the last ten years, there were only four names. If sexual violence is a huge problem, why don’t more cases come before university disciplinary committees?

Extrapolating their data to a four-year college career, the Justice Department researchers observed that the statistic could climb to 20 percent of the collegiate female population. (A 1985 survey of over 3,500 college women about sexual violence published in Ms. Magazine also found that one in five women were victims of sexual violence. While the statistic was widely accepted and cited throughout the 1990s, there were problems with the survey’s methods, making it easy for skeptics to dismiss its findings. This more rigorous federal survey unfortunately confirmed the older estimate.)

The University of Maryland’s list reveals the problem in how victims of sexual violence understand their experiences and whether they choose to report them. “Many women do not characterize their sexual victimizations as a crime for a number of reasons (such as embarrassment, not clearly understanding the legal definition of rape, or not wanting to define someone they know who victimized them as a rapist) or because they blame themselves for their sexual assault,” noted writers of the Department of Justice. In addition to making procedural modifications, universities must improve education about sexual violence.

Yale University’s code of conduct already uses the preponderance of evidence standard. “I think the evidential standard is definitely more applicable than clear and convincing evidence because establishing guilt or innocence is already so difficult” in cases of sexual violence, Assistant Dean Jill Cutler said. Cutler sat through many sexual misconduct proceedings during her fourteen years as the secretary of the Yale’s Executive Committee. The cases are complicated by factors like alcohol, lack of witnesses, and the fact that most cases of sexual assault at Yale involve acquaintances.

During the past year, though, Yale has reassessed its sexual misconduct policies anyway. Among other changes, Yale now uses stronger, more specific language in the student code of conduct explaining what qualifies as sexual harassment and assault. The grievance procedure for victims of sexual violence—in the past an opaque and confusing process—has been unified into a single University-Wide Committee on Sexual Misconduct.

That committee will also appoint a fact-finder, someone unaffiliated with the university, for each case. “I think it will help greatly to have independent outside investigators who can spring into action and collect the facts as soon as a case is brought to light, and who will have the time and energy to interview all the people whose observations might be relevant to the chain of events,” said Cutler. It is important that the investigators are not professors, who often are too busy to gather all the information a committee needs to make a decision.

Proper investigation of sexual violence cases was mentioned briefly in the Dear Colleague letter, but the Office of Civil Rights focused on the speed of investigations (so that victims are not dragged through months and months of hearings) rather than on the individuals doing the investigating.

Though some have criticized Yale’s efforts to change how the University handles sexual misconduct as ponderous and ineffectual, the administration’s attitude contrasts with what Schudson calls an inadequate response from Pomona College officials.

The administration there is making changes only because the Office of Civil Rights has required it to do so, according to Schudson. The letter “has regulatory authority, so that’s what’s important to us,” Miriam Feldblum, a dean at Pomona, told The Student Life. As far as Schudson is concerned, it was like saying, “Because we had to.”

The administration didn’t hesitate to make changes that will help victims of sexual violence find justice. However, if Schudson is correct, Feldblum’s attitude also demonstrates a lack of understanding of the depth of the problem and the need for administrators to cooperate in addressing it.

The Dear Colleague letter began with the premise that changes had to be made so that education could remain the great American equalizer. The threat of terminating federal funds is an effective one, as Pomona’s case shows. But for universities to alter a campus culture that fosters—or at least turns a blind eye to—victim blaming and other dangerous assumptions, they will need to do much more than just follow the guidelines in the Office of Civil Rights letter. The federal bureaucracy has nothing to do with some of the best examples of effective action to combat sexual violence, from Schudson’s and his friends’ determined advocacy at Pomona to Katcef’s sleuthing. Instead, students and administrators alike must take a long look at their own campuses’ specific failings and find ways of creating a safer, saner sexual culture.

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