In the past three years, there has been considerable activity on the Title IX/Sexual Assault legal front. We have all read about the increase in claims brought by victims against their institutions through the complaint procedures of the U.S. Department of Education’s Office for Civil Rights. There have been well publicized resolution agreements reached between OCR and institutions. And there has been the April 2011 “Dear Colleague” letter issued by OCR that has been the subject of much debate.
But institutions are also starting to see an increase in push back from students accused of sexual assault. A recent Bloomberg report highlights a number of legal complaints filed by male students against their institutions as a result of disciplinary action taken against them arising out of sexual assault claims.
Institutions should not ignore these latest challenges. At a minimum, they should review their existing investigation and hearing procedures not only to ensure that they provide appropriate protections for those accused, but to also make sure that they provide “equal” process for both the victim and the accused. OCR has made it clear that the process needs to be the basically the same for both parties. For example, if the victim has the right to have an advisor present throughout the proceeding, the accused must be afforded that same right; if the victim has the right to appeal a hearing decision, the accused must be afforded that same right.
In addition, it is critical that institutions “execute” in accordance with their own policies and procedures. While institutions have a fair degree of leeway with respect to what goes into their policies, the surest way to create a legal issue is to then not follow those policies. Do not put something in your policy that you are not prepared to live with, and once you put it in your policy you need to make sure you follow it.
Whether now, at the end of the calendar year, or in the Spring, at the end of the academic year, at least annually an institution should conduct a thorough review and audit of the past year’s sexual harassment/assault cases. Determine what was done correctly and what could have been done better. Based on those experiences, consider modifications to your policies and procedures, and/or to your implementation of them, to best position your institution, and the outcomes reached in your internal proceedings, against future legal attack.