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By Julie Liedman

More than a year after the U.S. Department of Education's Office for Civil Rights issued new guidelines ordering colleges and universities to aggressively address and remedy incidences of alleged sexual violence, education leaders are still scrambling to figure out if their institutions comply. They're also waiting for an expected increase in litigation.

"Every conference and seminar I go to, people still want to hear about it," said James Keller, co-chairman of the Higher Education Practice Group of Saul Ewing, a Philadelphia-based law firm. "What these guidelines have done for a lot of institutions is create confusion about what they're supposed to do and whether what they've been doing is sufficient.

"At a minimum, it was a wake-up call to closely evaluate existing policies and training procedures, with a special focus on the components of on-campus judicial procedures, which was new to a lot of people in the higher-education field."

The guidelines, which affect schools from elementary to university level, were issued at an event at the University of New Hampshire in April 2011 by Vice President Joe Biden and Secretary of Education Arne Duncan.

"Students across the country deserve the safest possible environment in which to learn," Biden said in introducing the guidelines. "That's why we're taking new steps to help our nation's schools, universities and colleges end the cycle of sexual violence on campus."

The guidelines list six main steps that schools must follow whenever a sexual assault is reported:

* The school must take immediate and appropriate action to investigate or otherwise determine what occurred.

* If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence and address its effects, whether or not the sexual violence is the subject of a criminal investigation.

* A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.

* A school must provide a grievance procedure for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity to present witnesses and other evidence and same appeal rights.

* A school's grievance procedures must use the preponderance of the evidence standard -- is it more likely to be true than not true -- to resolve complaints of sex discrimination. The same standard is used in civil and grand jury cases.

* A school must notify both parties of the outcome of the complaint.

'Dear Colleague' Letter

The guidelines came in the form of a "Dear Colleague" letter that elaborated on the 40-year-old Title IX of the Civil Rights Act of 1964, which made it illegal to discriminate on the basis of race, color or national origin. Title IX, the 1972 amendment to the law, pertained to schools that receive federal funds, and was the impetus that greatly enhanced women's sports in colleges and universities.

Since then, the concept of sexual discrimination has come to include sexual harassment and violence.

By far the most controversial aspect of the letter is its requirement that school grievance procedures use the "preponderance of evidence" standard of proof, rather than the stricter "clear and convincing" standard many institutions have historically used. A preponderance of evidence means it simply is more likely than not that the incident occurred.

This has led to concern that the lesser standard favors the alleged victim and is unfair to those accused of sexual harassment.

"What we're seeing more of in light of this 'Dear Colleague' letter are concerns raised by a lot of folks suggesting that some of the requirements meant to remedy sexual attacks are so overinclusive that it's going to lead to discrimination against the accused," Keller said.

The problem is that often it is very difficult to determine what actually happened, according to Alyssa Keehan, senior risk counsel for United Educators, a reciprocal risk retention group that covers risk exposures of educational institutions.

"A lot of times both parties are under the influence of alcohol so memories are fuzzy. It often comes down to a 'he said, she said' situation," she said. "If the institution is trying to figure out what happened, it's in a difficult spot. There's a lot of gray.

"And given the 'Dear Colleague' letter, which now requires institutions to use the preponderance of evidence standard, there is a fear that this creates a more victim-centric approach and we may see a spike in claims by people accused of sexual harassment and removed from school.

A person can be expelled from school, denied the ability to go on to graduate school and prevented from pursuing decent employment even if there is only a tentative probability that he or she committed the assault. Even if law-enforcement agencies decline to prosecute the case because of insufficient evidence, a campus disciplinary board, usually comprised of faculty, administrators and students, must hold a hearing and render judgment.

"From a liability standpoint, this is a big concern," said Keehan. "The stakes are very high."

Before the new Title IX guidelines were issued, Keehan did a comprehensive study of sexual harassment-related claims on campuses showing that "institutions are as likely to be sued by those accused of sexual assault as those who do the accusing" indicating that whoever felt they were treated unfairly was evenly divided between victims and accused.

"But when you read the 'Dear Colleague' letter," Keehan said, "a lot of the tone is victim-centric."

Schools also worry about the fairness of campus disciplinary boards because they consist of faculty, administrators and students who serve as both judge and jury even though few if any are likely to have professional experience or competence gathering facts, analyzing evidence or conducting judicial proceedings. And even if law enforcement decides not to prosecute because it believes the facts cannot be sorted out, the campus disciplinary board must conduct a hearing and can find the accused guilty on a feeling of probability, rather than reasonable certainty.

"Some of the requirements will require additional, unfunded training," said Robb Jones, senior vice president and general counsel for claims management at United Educators.

He predicted that the U.S. Supreme Court, ultimately, will have the final say on the guidelines whose basis, itself, resulted from several Supreme Court decisions.

The first was a unanimous Supreme Court decision in 1992, in Franklin v. Gwinnett County Public Schools, that held that Title IX bars sexual harassment and allows victims to recover damages from institutions that violate the statute.

Then came Gebser v. Lago Vista Independent School District in 1998, which limits the availability of money damages in cases where teachers sexually harass students. In order to get damages in a private lawsuit under Title IX, it said, students or their parents had to prove that top school officials actually knew about the specific conduct, and that they were deliberately indifferent to it, Jones said. Schools that do not abide by the Gebser decision, and fail to respond to sexual harassment charges, risk being in violation of Title IX and therefore jeopardized their federal funding.

"The Supreme Court hasn't really looked at Title IX in the context of sexual harassment since then," Jones said. "It perked along in the lower courts and became a big issue on college campuses. Eventually, I think, something will reach the Supreme Court again."

Still, said United Educators' Keehan, the whole idea of the guidelines simply is to prevent either overreaction or underreaction to sexual harassment allegations.

"Claims of sexual assault boil down to feeling the institution is biased against them and treated them cruelly or unfairly," she said. "That can happen to either victims or the accused."

What is needed is a process that treats both parties "as fairly and impartially as possible until the institution has the opportunity to hear the case," she said.

Often, there are a lot of support systems for victims, but far fewer support systems for those accused of assault. "So maybe schools need to create a liaison to guide both the victim and the accused to show that the institution cares," she said.

JULIE LIEDMAN is a freelance writer and editor. She can be reached at riskletters@lrp.com.

May 1, 2012

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