On May 1st 2014 the Department of Education’s Office for Civil Rights released a list of 55 higher education institutions under investigation for possible violations of Title IX requirements for the handling of sexual misconduct cases. Among the 55 institutions are Michigan State University and the University of Michigan – Ann Arbor. Title IX is a 1973 law that prohibits discrimination on the basis of sex and is most often associated with the rise in women’s athletics in schools and universities. Title IX has also been used by the Department of Education to tackle the problem of sexual violence on college campuses. The logic used by the Department of Education is that because Title IX prohibits discrimination on the basis of sex, any hostile environment created on the basis of sex is a violation of Title IX. That is, sexual harassment, assault, or misconduct creates a hostile environment for the victim due to the victim’s sex and the Department of Education has authority over institutions to ensure they respond to complaints appropriately.
Both Michigan State University and the University of Michigan are under investigation for their handling of sexual violence cases. The details of the investigations won’t be released until the investigation is complete. Eastern Michigan University has also been investigated by the Department of Education for failing to meet its Title IX and Clery Act requirements by not reporting the rape and murder of a student in a dorm in 2006. The 1990 Clery Act requires that universities make timely reports of crime on campuses. EMU was fined $350,000 and three administrators were fired as a result. In 2010 EMU signed an agreement with the Department of Education outlining new policies and procedures meant to prevent sexual assault and encourage reporting.
In April 2011 the Department of Education’s Office for Civil Rights sent a letter to higher education institutions now known as the “Dear Colleague Letter” which made clear the responsibilities of an institution when it came to responding to sexual misconduct. The two most important points of the Dear Colleague Letter were first the lowering of the standard of evidence to be used by administrators when investigating complaints of misconduct to a “preponderance of evidence standard” the logic being that since these were not criminal investigations the standard did not need to be the “clear and convincing” standard being used by many universities. The second important point of the letter is that universities had to respond to complaints regardless of any law enforcement investigation. The letter holds that administrators are obligated to resolve the hostile environment created by any alleged misconduct in a timely manner, therefore necessitating action whether or not there is any law enforcement involvement with the complaint. It was the case prior to the letter that many universities did not pursue their own investigations into complaints of misconduct as soon as law enforcement became involved.
The Dear Colleague Letter contained more detailed advice for how complaint response procedures should function and a suggested timeframe for resolution of complaints. The letter also allows for these guidelines to be adapted for each institution’s particular campus and while requiring timely resolutions, states that the time taken for investigations will vary based on the complexity of individual cases. The Dear Colleague Letter also specifically states that sexual misconduct investigations must be independently investigated and an athletic department responding to complaints internally is not acceptable. Many universities, including MSU and U of M had to change their sexual misconduct policies in response to the Dear Colleague Letter in order to remain in compliance with Title IX requirements. U of M published its new policies in 2011 and MSU published their own in 2012. The current investigations could either find these policies to be inadequate or that they were not followed in the specific complaints filed with the Department of Education. Most investigations end with a resolution agreement drafted by both the Office for Civil Rights and the university administrators explaining how policies and procedures must be changed and a letter of findings. Only 16 percent of sexual misconduct complaints are fully investigated by the Office of Civil Rights and one in ten of the full investigations finds a college to be in violation of Title IX.
In late April 2014 the White House Task Force to Protect Students from Sexual Assault created a website detailing how students may file their own Title IX complaints against universities that have failed to meet their requirements. Alongside this website the task force released their own guidelines for universities respond to complaints of sexual misconduct, as well as measures to prevent and better report sexual violence. On the same day the Office for Civil Rights released a 52 point question and answer document to help administrators better comply with Title IX requirements.
It is unlikely that any information about the investigations at MSU or U of M will be made available until the resolution agreement and letter of findings are released. Even the original complainants do not participate in the investigation beyond its initial stages. Tufts University which had been under investigation for failing to meet its Title IX requirements had initially accepted its resolution agreement before rejecting its findings. The Tufts later re-signed the agreement when the Office of Civil Rights pledged to begin the process of terminating federal funds to Tufts, a punishment available to the Department of Education which has never been used.
1. United States Department of Education, Office of Civil Rights. Russlynn Ali Assistant Secretary for Civil Rights, “Dear Colleague Letter” http://www.ncherm.org/documents/OCRDearColleagueLetter4.4.11.pdf April 4, 2011
2. David Jesse, “Four years after student's murder, EMU signs agreement on handling of sexual assault, harassment claims” http://www.annarbor.com/news/ypsilanti/eastern-michigan-university-signs-resolution-agreement-with-federal-office-for-civil-rights/ December 9, 2010
3. Jonah Newman and Libby Sander, “Promise Unfulfilled?” http://chronicle.com/article/Promise-Unfulfilled-/146299/
4. Libby Sander, “White House Raises the Bar for Colleges’ Handling of Sexual Assault” http://chronicle.com/article/White-House-Raises-the-Bar-for/146255/ April 29, 2014
5. Sara Lipka, “How to Handle Reports of Sexual Violence: New Q&A Offers Colleges Advice” http://chronicle.com/article/How-to-Handle-Reports-of/146263/ April 30, 2014