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Title IX has transformed the way colleges handle assault claims

Sun., April 22, 2012

Attorney Wendy Murphy stands in the law library at the New England School of Law in Boston. Murphy said colleges cave too easily in the face of threatened lawsuits from students accused of sexual violence. (Associated Press)
Attorney Wendy Murphy stands in the law library at the New England School of Law in Boston. Murphy said colleges cave too easily in the face of threatened lawsuits from students accused of sexual violence. (Associated Press)

For months after Kristina Ponischil was raped at a party in her off-campus apartment, her life at Western Washington University was hell.

Police wouldn’t act, as often happens in college towns with “he said, she said” accounts of alcohol-influenced student encounters behind closed doors. Despite a restraining order, she kept running into her assailant on campus, prompting panic attacks.

Once, the man who’d raped her brushed up against Ponischil in the bookstore, then smirked.

“I was just constantly worried that I would run into him again,” Ponischil said.

But if the criminal justice system let Ponischil down, Western Washington University did not. When she finally told an administrator what happened, the school sprang to action, offering her the support she needed. Perhaps most important, the campus judicial system, using a lower standard of proof than criminal courts, suspended her assailant, removing him from campus until she graduated in 2009.

“I was able to start healing,” she said. “When I was constantly afraid, there was no healing. It was just constant fear.”

The college’s response wasn’t just a moral obligation; it was also a legal one.

June marks the 40th anniversary of Title IX, the federal gender-equity law that has made headlines mostly on the sports pages. But over the past decade or so, through a series of court rulings and more recently controversial guidance published by President Barack Obama’s administration, Title IX has shifted onto a different patch of contentious terrain – sexual assault on college campuses. It is transforming how colleges must respond to allegations of sexual violence.

The reasoning: Title IX’s key language, running barely 30 words, forbids sex-based discrimination that denies access to educational opportunity. It’s long established that sexual discrimination and harassment can create an atmosphere that denies women their right to education. What’s newer is applying the logic to even a single episode of sexual assault.

Colleges must respond to violence

Typically, colleges enjoy wide leeway in responding to student misconduct, whether that means using a disciplinary board to enforce their own rules or simply punting the matter to law enforcement. But as Title IX is now interpreted – and would be reinforced under a new version of the Violence Against Women Act awaiting a Senate vote – colleges must respond if a sexual assault is reported, even if prosecutors refuse to get involved.

Moreover, they face often precise instructions from the government for conducting their investigations and proceedings, and even the standard of proof to use.

Victims’ advocates welcome what they call an overdue push for colleges to take seriously a problem they’ve long swept under the rug. The latest Title IX guidance also requires colleges to train staff and develop and publicize policies to help sexual assault victims, or risk large legal judgments. And they must remediate the harm to victims, for instance by providing counseling.

More broadly, these advocates contend Title IX is also reframing the entire discussion about sexual violence on campus, away from blaming victims and toward the big issue at stake: their right to an education.

Title IX criticized for many reasons

Title IX’s expanding role in campus sexual assault cases has proved contentious on a variety of fronts, even among victims’ advocates.

Some argue channeling sexual assaults to campus proceedings lets the criminal justice system off the hook. Others argue the problem is colleges can’t or won’t hand down tough punishments. Still others oppose some of what the government now requires of colleges. For instance, schools may be required to pursue a case even if the victim wants to drop it, and they cannot offer absolute promises victims’ anonymity will be protected.

Many college administrators agree it would be wrong to ignore sexual assault reports, but some feel unequipped to handle the cases. Regardless, they face suits from both sides – under Title IX for failing to act forcefully enough, and by accused assailants claiming they were treated unfairly.

Vigorous criticism has come from civil libertarians, who argue the Obama administration’s guidance undermines the rights of the accused. They’ve focused on the requirement that colleges use a “preponderance of evidence” standard in such cases – essentially a belief guilt is more likely than not, and a much lower standard than criminal cases.

Title IX, the critics claim, is a blunt legal weapon for addressing sexual assault on campus. They too see a threat to access to education – but for the accused.

Estimates of assaults at colleges vary

Studies vary in their findings of how common sexual assault is at American colleges. None, however, paints a reassuring picture. An often-cited 2007 study estimated one in five college women were victims of an attempted or completed sexual assault. A national telephone survey estimated 20 to 25 percent of women would experience a completed or attempted rape in college.

A 2003 Justice Department study of violent crime calculated a lower rate: about six college women per 1,000 per year, or roughly 3 percent overall during a college career.

“It’s disgusting how much this goes on and how unaware people are of it,” said Susannah Johnson, a freshman at Wheaton College outside Boston, whose account of being raped by a former boyfriend on campus last year went viral, prompting nearly 200 emails to her from women at other area colleges sharing their own stories.

Fewer than 5 percent of attempted or completed rapes are reported to law enforcement or campus authorities. That endangers others because most campus rapes are committed by serial offenders (though usually not strangers).

Last April, the Department of Education’s Office for Civil Rights sent colleges a “Dear Colleague” letter, explaining its interpretation of Title IX and outlining the steps it believes colleges must take in response to sexual assault on campus. The 19-page letter carries over from past guidance that has been in force since the Clinton administration. But it was the first such guidance to address directly how Title IX applies to sexual violence, not just harassment.

The letter reminds colleges they must provide “due process” for the accused, such as giving both complainant and accused timely access to relevant information. But the focus is protections for the accuser. Schools must act promptly to investigate, not waiting for a criminal case to proceed. If necessary, they must take interim steps to protect the complainant before a verdict is reached, such as separating the accused and accuser in classes and dorms.

They also must offer immediate support to victims and ensure cases are resolved before perpetrators graduate.

Schools’ responses are improving

Alison Kiss of the group Security on Campus said it remains all too common that students don’t know their Title IX rights, and for colleges to fail to inform them. The Campus Sexual Violence Elimination (SaVE) Act, currently before the Senate as part of a reauthorization of the Violence Against Women Act, beefs up reporting rules and requires colleges to notify students reporting assaults of those rights.

When colleges do hand down punishments, expulsion is the maximum, and they often fall short of that. Last year, when the Center for Public Integrity examined a federal database with information on 130 colleges, it found only 10 to 25 percent of men found responsible for sexual assault were expelled.

But Kiss said Title IX pressure has prompted many colleges to improve their training and response. That may explain why some schools report more assault complaints coming forward. Last year’s guidance forced colleges to designate Title IX coordinators, and to rewrite and then publicize new policies, showing more students the police aren’t their only option.

Kiss said until prosecutors start taking such cases, colleges must offer victims an alternative (even if prosecutors do act, colleges must pursue their own Title IX investigations).

“Ten years ago very few people understood the connection between Title IX and sexual assault,” said Wendy Murphy, a Boston attorney who has filed numerous complaints against universities over Title IX compliance. Thanks to the latest guidance, “instead of teaching girls to be afraid and if something ever does happen it’s going to be like stealing somebody’s notebook, the conversation that gets taught to new students is this is a civil rights violation and it’s a serious one.”

False accusations create problems

Caleb Warner has seen the flip side of Title IX enforcement.

Warner, too, was enmeshed in a “he said, she said” encounter. During finals week in 2009, he says, a fellow University of North Dakota student with whom he’d been intimate before, and been texting with ever since, invited herself over.

They had sex – consensual, he insists – a second time, then again the next morning, after she spent the night. He liked her, but she stopped responding to his calls and texts. He went home for the holidays and let it drop.

But when Warner returned to school, an administrator pulled him from class. He’d been accused of rape, and he would have to face charges in the campus disciplinary system – within 10 days.

What followed, as Warner and his mother describe it, was a “kangaroo court” campus trial where a hostile administrator attacked Warner’s witnesses as just standing up for a fraternity brother. He was found guilty and kicked off campus – and banned from any state school – for at least three years.

Warner is hardly the only student accused of sexual misconduct to claim unfair treatment. But his case took an unusual twist. After his quick campus trial, a Grand Forks police detective began investigating possible criminal charges against Warner. According to a police report, the detective caught Warner’s accuser in a series of lies about the incident and her previous communications with Warner. Multiple witnesses contradicted her story.

Eventually the police brought charges – against her.

Not even in the famous Duke lacrosse case, Warner and others supporting him noted, did law enforcement go so far as to file false reporting charges against an accuser after a rape case collapsed.

Still, for months UND refused to reconsider Warner’s case, arguing the results of the police investigation did not amount to “substantial new information.”

It wasn’t until last October, after a campaign led by Warner’s mother was starting to inspire critical letters from alumni, that the university relented and overturned Warner’s sanctions. A UND official wrote the original decision should stand but the process for allowing him to report new information fell short of the “minimum demands of fundamental fairness.”

Not that Warner plans to return to the school. He’s driving a delivery truck for a national shipping company, trying to pay back legal bills to his family, and unsure if he’ll ever return to college.

Warner’s accuser has since left the state; a warrant is open for her arrest.

It is a fact that some rape allegations are false. How many is hard to say. University of Massachusetts-Boston psychologist David Lisak looked closely at 136 rape allegations reported over 10 years at one unidentified university in the Northeast and concluded 6 percent of allegations proved demonstrably false. That was separate from another 45 percent that did not proceed to prosecution or campus disciplinary action, either for insufficient evidence or because the complaint was withdrawn.

Russlynn Ali, the assistant secretary of education for civil rights, who signed the “Dear Colleague” letter, emphasized the Office for Civil Rights’ guidance is intended to protect victims and clarify college administrators’ responsibilities toward them. “It is not intended to trump the rights of the accused,” she said.

But there are some who worry that Title IX rules could force a rush to judgment. Schools must act immediately to protect alleged victims even while the case for discipline takes its course.

Daniel Swinton, director of student conduct and academic integrity at Vanderbilt, said the requirement colleges take interim steps “makes us nervous because you’re starting to sanction or hold someone accountable, at least temporarily, based on an accusation.”

“What if this is near finals, and the student is accused, but there’s not evidence yet he’s guilty? Do you expel them, have them miss the semester?” said Gwendolyn Jordan Dungy, executive director of NASPA, a group for student affairs professionals.

Another concern: Colleges must offer victims – and not just the accused – the right to appeal an unfavorable decision. It’s a right victims wouldn’t enjoy in criminal courts.

Most controversially, the Office for Civil Rights said colleges must judge Title IX cases under a standard of “preponderance of evidence.” That standard, common in civil law cases, means schools must conclude only that there is a 50.1 percent chance the accused is guilty to find him responsible.

Courts have long granted colleges leeway to use lower standards of proof because they are conducting educational proceedings, enforcing college rules, not criminal laws.

Without the preponderance standard, it can be difficult for colleges to remove rapists.

“To get to proof beyond a reasonable doubt, which is the criminal standard, when you have two people who did something behind closed doors where there were no eyewitnesses and probably a lot of alcohol, it’s incredibly hard to prove,” said Brett Sokolow, managing partner of the National Center for Higher Education Risk Management, which advises colleges on Title IX.

Still, until recently, roughly 20 to 30 percent of colleges, including most elite institutions, maintained a higher burden of proof. Typically they required “clear and convincing” evidence to convict, a standard they felt better protected the rights of the accused.

The Office for Civil Rights letter prompted virtually all such colleges to scrap that standard and change to preponderance.

Other than a college campus, “there is no other place in America where a body can determine you’re guilty of rape, particularly a body that is run by the government, based on a more-likely-than-not standard,” said Robert Shibley, an attorney with FIRE, the Foundation for Individual Rights in Education.

The Campus SaVE Act would solidify victims’ right to appeal unsatisfying verdicts. But language that would have written the preponderance standard into statute, giving it stronger legal footing, was dropped. Even if the bill becomes law, preponderance would remain only the Obama administration’s interpretation of Title IX, which colleges could challenge in court.



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