Since the April 2011 “Dear Colleague Letter” was sent to university administrators all over the country detailing the Department of Education’s Office for Civil Rights’ requirements for responding to sexual misconduct, many universities have had to revise or create entirely new sets of policies and procedures for their handling of reports of sexual misconduct. In later April of 2014 the White House released a set of 52 questions and answers in response to university administrators’ requests to clarify the somewhat vague requirements laid out in the Dear Colleague Letter. Both Michigan State University and the University of Michigan revised and published new sexual misconduct policies following the 2011 Dear Colleague Letter in order to comply with its requirements. As both universities are currently under investigation by the Department of Education for potentially violated their Title IX requirements, it is worthwhile to examine their published policies in comparison with the detailed 52 point question and answer document.
The basic requirements laid out by the Dear Colleague Letter and clarified by the Question and Answers on Title IX and Sexual Violence are as follows: First, universities need to designate a Title IX coordinator on campus and ensure that employee does not have any conflict of interest and has sufficient time and resources to handle Title IX sexual misconduct complaints. The Q&A details some potential conflicts of interest, some examples being a university’s general counsel or an athletic director. Universities must also draft and publish adequate definitions of sexual harassment and sexual assault and distribute the information to students, faculty, and staff.
The Dear Colleague Letter and subsequent Q&A require a university to respond to sexual misconduct when it is made aware or should reasonable be away of the misconduct. The Q&A clarifies this by explaining that when an incident is common knowledge on campus, a university is required to investigate and determine if sexual violence occurred or not despite a lack of a formal report of the incident. Universities are also required to provide confidential reporting options for those wishing to make a complaint. The Q&A explains that while the option must be available, administrators should also explain that in honoring a complainant’s request for confidentiality, the university may not be able to conduct a full investigation. The Q&A also states that if an incident is sufficiently severe, administrators are required to investigate and should attempt to honor a complainant’s request for confidentiality to the extent possible in order to conduct a proper investigation.
Universities are allowed to respond and resolve some complaints in an informal manner, except in cases involving sexual violence which is explicitly barred from being dealt with in an informal process. Once an investigation has begun, universities are required to take interim measures to end a hostile environment for a complainant during the course of an investigation. Separating an alleged victim and alleged perpetrator, usually by moving one out of a class, housing, or job situation is given as one interim measure. Making a complainant and respondent aware of support and counseling resources is also given as an interim measure to be taken alongside separation.
Both the Dear Colleague Letter and Q&A make clear that universities are not relieved of their responsibility to investigate claims of sexual misconduct by a criminal investigation into the same incident. Since Title IX requires universities to end any hostile environment that can interfere with the education of a student, universities must act themselves to end a hostile environment regardless of any law enforcement investigation. The Q&A details how a university could work with local law enforcement or their own law enforcement departments in handling investigations. It is also important that a person making a report of sexual misconduct is made aware of their right to file a criminal complaint in addition to a Title IX complaint. Complainants are also given the option to file a Title IX complaint with the Office for Civil Rights along with any complaint to campus administrators.
One of the key requirements of the Dear Colleague Letter was that any Title IX investigation use the preponderance of evidence standard in order to establish whether or not an alleged incident occurred. Universities are instructed that they should keep both a complainant and respondent informed on the progress and findings of any investigation. Both parties must receive notice of the outcome of an investigation as well as the details of sanctions and remedies for each party to the extent allowed by student privacy laws. The Q&A details that if a university offers any appeal process for the outcome of an investigation, it must be offered to both parties equally. That is, if a respondent believes the sanctions applied were too harsh and is allowed to appeal, the complainant is allowed to appeal if they believe the sanctions were insufficient. One aspect that is raised several times in both the Dear Colleague Letter and the Q&A is that investigations must be prompt, fair, and equitable. The Q&A details several ways that investigations should be made fair while allowing universities freedom in developing their own procedures. In general, any protection or service offered to one party must be offered to both. Examples of this are the appeal process above, the right to present evidence and witnesses, as well legal representation, if one party may have access to a lawyer during hearing, both must have access.
The documents detail a general expectation for the timeframe of an investigation, from receiving notice of an incident to the notification of the outcome of an investigation should take 60 days. Both documents recognize that extenuating circumstances may require that investigations take longer than this but universities are encouraged to strive for a 60 day timeframe. Voluntary participation is another part of the expectations laid out in these documents. If an alleged victim or alleged perpetrator do not want to participate in an investigation, they are allowed to do so. The Q&A recognizes that this could hamper an investigation and result in skewed findings. Lastly, universities are to make all parties aware of that retaliation will not be tolerated and make parties aware of how they can report retaliation.
Michigan State University’s published sexual harassment policy appears to comply with the guidelines laid out by the Dear Colleague Letter and subsequent Q&A with one exception. The timeframe included in MSU’s document is much longer than the 60 day timeframe given by the federal guidelines. The timeframe given is a 90 day period for investigations and an additional 30 days for formal report for a total of 120 days from start to finish. It is not clear if the Office for Civil Rights would consider this published timeframe or if it would instead review the timeframe of actual investigations that have occurred at Michigan State. It is likely that the policies will be revised if the Department of Education investigation determines that MSU is not in compliance with its Title IX responsibilities. Other than the timeframe problem, MSU’s policy would appear to meet the requirements for being equitable and fair, it is however not very detailed on how exactly investigations will occur. This isn’t a requirement but compared to Michigan’s published policy, it is lacking detail. Michigan’s policy is 21 pages long while Michigan State’s is 9.
The University of Michigan’s published policy seems to be in compliance as well, with another exception for the timeframe given. In Michigan’s policy investigations are given a 60 period and another 15 for the completion of any sanctioning of a respondent. Again, it’s not clear if the published timeframe or the timeframe as practiced is what matters but it is clear that Michigan’s timeframe is less of an issue than Michigan State’s. The detail provided in Michigan’s policy document is very helpful and gives a clear picture of the processes being used to address a complaint. One goal for many trying to end sexual violence on campuses is to encourage reporting, a clear picture of how the university will respond to a compliant is more likely to encourage one than a more obscure one (with the expectation that both policies are in compliance with Title IX in the first place).
Until the Department of Education investigation’s findings are published, we can’t know if the published sexual misconduct policies are themselves part of the investigation and if the Office for Civil Rights considers them in compliance or not. If the investigations are to determine if particular cases were handled in a manner that was not in compliance with Title IX, the published policies may still be revised as part of a resolution agreement between the universities and the Department of Education.
Department of Education Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence:
Michigan State University Policy on Sexual Harassment:
University of Michigan Policy on Sexual Misconduct by Students: