OCR Finds "Insufficient Evidence" of Most Title IX Violations Alleged Against Occidental College

The Department of Education's Office for Civil Rights announced yesterday that it had entered into voluntary resolution with Occidental College in Los Angeles, closing the agency's investigation into the high-profile complaint alleging that the college had violated Title IX in its handling of sexual assault.  For the most part, the agency found "insufficient evidence" that Occidental's procedures and practices deviated from the requirements in the Dear Colleague Letter.  In particular, the specific allegations against Occidental that were raised by complainants were all rejected. For example, the agency rejected the charge that Occidental fails to take interim measures to protect complainants while the grievance process is ongoing; the college issues stay-away letters and interim suspensions from college activities, removed respondents from shared living spaces, and also made support and academic services available to complainants.  The agency also found insufficient evidence to support the charge that Occidental did not adequately punish those found responsible for sexual misconduct by providing respondents with the opportunity to complete educational assignments as part of a sanction (in lieu of expulsion). OCR determined that these sanctions were reasonable under the circumstances and that they were completed by the respondents who received them. The agency also determined that respondents who faced multiple, separate charges of sexual assault were appropriately sanctioned, by expulsion in some cases, or with circumstance-appropriate alternatives.  As a final example, complainants alleged that Occidental officials discouraged students from filing formal complaints, but OCR investigators could not substantiate this claim.

OCR's investigation did find that in the 2012-13 school year, Occidental failed to promptly handle a three sexual assault complaints without an adequate justification. The delays in these cases were caused by staffing vacancies and hearing officers who were unavailable. Since that time, however, Occidental has revised its policy to eliminate the hearing panel, created a new process to determine responsibility and sanctions, and has hired Deputy Coordinators. To ensure that these changes address the matter of timeliness going forward, the college and OCR have entered into a resolution agreement that OCR will monitor.

The complaint against Occidental was one of the early in the wave of post-Dear Colleague Letter complaints. It received national attention, in part, because the college was found to have concealed sexual assault statistics in violation of the Clery Act.[*]  In that context, it did not seem unlikely that a college that would suppress evidence of campus rape would also seek to discourage students from filing formal complaints and otherwise minimizing the consequences for those accused and found responsible of sexual assault. The findings that emerge from OCR's investigation, however, tell a different story.

*Update: Since writing this post initially, I learned that the report of these violations was later retracted. Occidental College is being investigated but has not been found responsible for violations of Clery Act.

Sexual Assault Litigation Roundup

Universities' response to sexual assault allegations have generated several lawsuits lately. Here is a round-up:

• A female student sued the University of Alabama at Huntsville, alleging that campus police violated Title IX when they discouraged her from pressing charges against a male student -- a hockey player -- who had raped her. (The player has since confessed and left the country for his native Finland.)  She also alleged that the university officials responsible for the campus judicial system violated her rights under Title IX.  After she prevailed in an initial hearing that determined that he was responsible for rape and should be expelled, he appealed this ruling to the associate provost, who allegedly delayed his decision until the end of the hockey season and then downgraded the sanction to a two-month suspension.  

• Two students, a male and female couple, sued the University of Houston to challenge the fact that they were expelled after having been found responsible for sexual misconduct against another female classmate.  That classmate reported that the male of the couple had sexually assaulted her and the female of the couple had caught them on videotape and then left her naked in the hallway of their campus apartment building.  The expelled students claim that their due process rights were violated in the manner in which they were expelled.

• A male student expelled from Occidental College for sexual assault has filed a Title IX complaint with the Department of Education as well as a lawsuit against the college. After a disciplinary proceeding found him responsible on the grounds that she was incapacitated by alcohol to have provided consent, he filed a sexual misconduct charge against her on the grounds that he, too, was intoxicated.  He claims that the college's failure to process his claim demonstrates discrimination on the basis of sex. 

A new type of punishment?

Reporters frequently ask us what the punishment is for failure to comply with Title IX regulations. And we always say something to the effect of "loss of federal funding...but that's never happened."
I continue to believe that one of the informal punishments, or at the very least, negative consequence, is the bad publicity that comes from accusations and findings of violations. In the situation many schools are facing with the visibility of complaints based on the handling of sexual assault cases, this "punishment" is fairly light, especially for victims of the crimes and their mishandling.
But the effect of public opinion may be having a larger impact than many schools would like. And an activist group called Ultra Violet is attempting to sway public opinion--specifically the opinion of applicants--by taking out ads aimed at informing students about the problems with sexual assault on various campuses. They have thus far targeted Dartmouth, Occidental, Berkeley, University of Michigan, Brandeis, American University, FSU, and Harvard.

There doesn't seem to be a rationale for why they have picked these particular schools
The group is claiming responsibility for the 14% drop in applicants to Dartmouth this year. I think that it would be difficult to prove a direct cause and effect there. It's not as if Dartmouth doesn't already have a reputation. Long before the recent revelations and investigations, there was publicity about the Dartmouth fraternities and their effect on campus culture. (Also, other schools are seeing double digit drops in applications as well. Inside Higher Ed  reported a similar drop at Quinnipiac which is being attributed to the economy.)
Regardless, the campaign by Ultra Violet is drawing attention, though some schools don't need any help.

The president of Occidental College, which is still under investigation and has already agreed to a settlement for Clery Act violations, has noted the potential damage to the college's reputation. Ironically, the administration's focus on a positive marketing message has caused greater negative publicity with charges that administrators have not done enough to actually remedy the problems on campus. The attention to image and legal defenses has drawn continued protests by students and alums. Donations are down and trustees are not too happy with all the negative press. At a trustee event a few weeks ago, trustees got into it with student, faculty, and alumni protesters who stood outside the event with signs expressing solidarity with victims. One trustee demanded names of rapists from the protesters and questioned their integrity when they told him to go ask administrators.

The tactics of Ultra Violet have been called "aggressive," a problematic description when it comes to female activism. I haven't seen anyone call Occidental's campaign to improve their image by hiring outside PR consulting firms (and refusing to report the costs) or confiscating the computers, phones, and records of professors as aggressive. And it's not as if the passive responses to campus sexual assault that so many schools now stand accused of has been successful.

Occidental College Conceals Sexual Assaults

Occidental College in Los Angeles has been publically associated with campus sexual assault since April, when it was the subject of a high-profile Title IX complaint with the Department of Education that challenged the way it handles reports of sexual violence.  This fall, the college admitted to underreporting instances of reported sexual assault as required by the Clery Act, but the extent of that underreporting was recently exposed by investigative reporters at the L.A. Times, who found 27 additional assaults that the college did not disclose in 2012, beyond the two dozen that the college originally acknowledged had been omitted from their reports. The Times article further reports that "dozens more" may have also been ignored by the Dean of Students because they were filed anonymously.

The Times reporters also reviewed the initial complaint, and report that it accuses Occidental's President, Dean of Students, and General Counsel of deterring students from reporting sexual violence and retaliating against those that do. For example, an official in the Dean of Students office allegedly tried to talk a victim out of reporting, saying "Are you sure you really want to go through with this? It is a really long and hard process, and it may cause you more pain and suffering."

Occidental's continued response to the issues of sexual assault since last spring's complaint has also drawn criticism. A professor told the Times that the campus safety logs, while now include anonymous complaints, regularly "downgrade" sexual assault to sexual battery.  In an even more bizarre example of obstructionism, the General Counsel, who has since resigned, reportedly organized a group of male student-athletes to stand up for themselves against anti-rape "activists."

While Occidental paid a financial settlement to the initial complainants in order to prevent them from filing a lawsuit, the Department of Education's investigation is still underway.  An enforcement action by the agency could subject the College to fines and other requirements to remedy violations of Title IX and the Clery Act. 

Fault admitted in California

Both Occidental College and the University of Southern California have said that they violated the Clery Act by underreporting sexual assault on their respective campuses as well as improperly handling some cases of reported sexual assault.
Occidental--on the advice of an outside consultant, according to school officials--reported a total of 19 incidents over a three-year period rather than reporting incidents per year, as required.
At USC more than a dozen anonymous complaints from 2010 were not reported. 
Clery Act violations incur fines of up to $35,000 per violation. There has not been any official figure provided by the currently shut-down government and it is unclear how these admissions will affect the investigations triggered by student-driven complaints.

Occidental College Settles With Sexual Assault Complainants

Occidental College will reportedly pay an undisclosed sum to settle with students and faculty who have complained to the Department of Education that the College failed to properly handle their complaints of sexual assault.  The complaint against Occidental was one of several filed last spring as part of a coordinated student campaign to promote enforcement of Title IX and the Campus SaVE Act. 

The settlement is confidential, so not much is known about its terms, other than that those bound by the settlement have agreed to not speak publicly about it.  I suspect that what the College has really paid for is the promise by the parties not to file a lawsuit for damages against the school. Public enforcement unaffected by a settlement between parties, so it was unsurprising to read that the Department of Education's investigation remains ongoing.

Updates on OCR's Investigations into Colleges' Responses to Campus Sexual Assault

The Department of Education's Office for Civil Rights has its hands full with sexual assault complaints. It has opened investigations into the complaints filed earlier by students from Dartmouth College, University of Southern California, University of Colorado Boulder, Swarthmore College, Occidental College, and University of North Carolina, Chapel Hill.  Here are some updates in each of those cases.  

In the Dartmouth case, OCR has initiated on its own an investigation into possible Title IX violations in the college's sexual harassment grievance procedures, its responses to sexual harassment claims, and its designation of a Title IX coordinator. These claims were not included in the students' earlier-filed complaint, which focused on sexual assault reporting problems as alleged Clery Act violations.

At USC, the OCR will investigate claims that the university failed to investigate and discipline students accused of rape.  One complainant told OCR that campus police refused to consider an act of rape when a male student penetrated her, but did not ejaculate.  Another said that university official told her, by way of explanation for not responding to her allegation of rape, that the university's job was to the educate, not to punish students. 

The student who filed a complaint about CU Boulder alleges that the university failed to adequately respond to sexual assault committed on her, even though her assailant was found guilty of nonconsensual intercourse by a university disciplinary committee.  The assailant was sanctioned to an 8 month suspension, which was not enforced for four weeks during which time he continued to have contact with her.  Meanwhile, the local criminal court had no trouble issuing a restraining order that would prevent the him from returning to campus while she is a student there.  She argues that the university should have been willing to provide at least as much protection to ensure her safety and well-being.

The ongoing Title IX investigation about Swarthmore's failure to adequately respond to sexual assault has already prompted the college to update its policies, it was recently reported. Swarthmore responded to the initial filing of the complaint last May by hiring a private company to conduct an independent review of its handling of sexual assault, and its findings form the basis for the college's changes going forward.  The college will also hire a Title IX coordinate and a victim's advocate, and will improve training for university staff.  These changes could speed up OCR's investigation, and could allow Swarthmore to emerge from the investigation with OCR's effective blessing on current practices and procedures.  Swarthmore also faces complaints that they underreported sexual assaults in violations of the Clery Act, and OCR has not yet announced an investigation into these claims.

Like Swarthmore, Occidental College also hired an external reviewer to evaluate its sexual assault policies, even while OCR's investigation is ongoing.  

OCR's investigation into complaints that UNC violated Title IX and the Clery Act recently expanded to include a claim that it retaliated against the student who initially filed those complaints by charging her with an honor code violation.  The charge, which was ultimately dropped, accused her of creating an intimidating environment for her alleged abuser.   UNC is also accused of retaliating against the initial complainant by moving her assailant to a dorm near her residence. 

What's happening with sexual assault complaints

At Occidental College in California, administrators are moving quickly to remedy the campus climate that inspired students to openly protest the way the college handles sexual assault cases. The president announced that a search was on for a Title IX coordinator ( a position that should already exist, by the way). The school will also be implementing recommendations from two experts the college hired in the wake of the complaints. Over 100 members of the faculty issued an open letter vowing to work to change the campus climate.

On the other side of the country, Dartmouth College continues to deal with the repercussions of the very visible protest a group of current students held during prospective students weekend. The college cancelled  classes for a day the week following the protest in order to address some of the issues raised. Programming, including speeches and open forums, was held ago for a day in order to hold forums and workshops about the issues protesters raised. But the effectiveness of this somewhat last-minute move has been questioned. Additionally, the initial protesters and others unrelated to the protest at all are receiving threats--some of which are based on sexual orientation and race--in various online forums. In short, the issue of respectful dialogue remains.

Directly south of Hanover in Amherst, students continue to press the administration at Amherst College to institute--and be transparent about--sexual assault policies. In late April, as part of Sexual Assault Awareness Month, students held an on-campus protest objecting to the leniency the college has historically engaged in when it dealt with perpetrators of sexual assault and their lack of input into new policies. Though the Title IX committee has two spots for student representatives, only one is currently filled. Students are also upset that a draft of the new policies has not been released.

More Sexual Assault Complaints Filed

On the heels of yesterday's report that 12 students at Swarthmore collaborated on a complaint challenging the inefficiencies of the university's response to sexual assaults on campus, today brings news of an even larger effort to expose similar problems at Occidental College in Los Angeles.  The Department of Education received a complaint against Occidental containing accounts by 37 students and alumni of the college's mishandling reports of sexual assault, including by seeking to deter victims from reporting, dragging out the disciplinary process, and allowing guilty offenders to remain in school.  Several of the students involved in the complaint made public statements yesterday, coming forward about their own experiences in an effort to raise awareness about what is starting to look like a national epidemic of suppression of campus sexual assault.  

In related news, a former high school student in Michigan, represented by the National Women's Law Center, filed a lawsuit in federal court yesterday, alleging that the Forest Hills School district in Michigan violated Title IX by responding indifferently to her allegation of sexual assault against a male student athlete in 2010. The lawsuit alleges that school officials sought to deter the victim's parents from reporting the assault to the police (which they did anyway), failed to investigate her claim, delayed changing the alleged attacker's schedule to remove him from the victim's schedules, and failed to protect her from harassment by other students who supported the alleged attacker.  During this time, a second female student complained of an assault by the same male student.  Yet, according to the complaint, the school district failed to investigate that report as well.   Police eventually charged the student with two counts of criminal sexual assault, and the student pled guilty to reduced charges.  Yet the school district's only response was to temporarily suspend him from the basketball team.  The lawsuit seeks damages to compensate the plaintiff for emotional distress, as well as injunctive relief that would require the school district to improve its prevention and response to sexual assault.