Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

By Wendy J. Murphy

For The Patriot Ledger

April 9, 2011

 

It's Sexual Assault Awareness Month and for the first time since President Obama took office, I'm celebrating his administration for FINALLY doing something about violence against women.  After a whole lot of nothing for three years, Vice President Biden went to the University of New Hampshire last week to announce a new "advisory" under Title IX, the federal law that prohibits gender discrimination, including sexual assault, in education.  The advisory is meant to compel university officials to do a better job responding to sex crimes on campus – an important concern given that one in five students is victimized while in college.

 

Amid reports that Yale is under investigation by the Office for Civil Rights (OCR) at the Department of Education for allegedly violating Title IX, Biden explained that schools are mandated by federal law to redress sexual violence "promptly and effectively”.

 

But Yale isn't the only school with problems.  The new advisory directly addresses concerns raised in other OCR investigations (filed by me) now underway against other schools, including Harvard Law School, Hofstra and the University of Virginia (U.Va.). 

 

Harvard Law School and U.Va. are in trouble for requiring sexual assault victims to prove their allegations by "clear and convincing evidence" (about 80% proof) rather than the less rigorous, "preponderance of evidence" standard (about 51% proof).  The new advisory makes it crystal clear that both schools have been violating women’s civil rights by applying the illegal higher standard.

 

Harvard Law School is also under investigation for having a policy of delaying sexual assault hearings on campus until outside law enforcement officials complete their investigation.  This tactic - known as "running out the clock" – is used by many schools as a way of avoiding oversight by OCR because when a school puts off resolving a case until the students involved are on the verge of graduation, violations of Title IX cannot be remedied in any meaningful way.  OCR has only discretionary jurisdiction once students have graduated, and even then, it’s impossible to repair the harm done to a victim who is no longer enrolled.  This is by far one of the most serious violations of Title IX because running out the clock profoundly interferes with a victim’s education by forcing her to endure an unresolved controversy – AND the presence of her attacker on campus – throughout her college (or graduate school) education.  In some cases, including at Harvard, school employees purporting to have expertise in this area, have literally “advised” victims that it’s a good idea to wait until the District Attorney completes his investigation.  These seemingly caring “advisors” know full well that there will be no criminal prosecution and that they are violating Title IX by helping the administration delay on-campus justice for the victim.  The new advisory makes it abundantly clear that this disdainful practice will not be tolerated.   

 

Harvard Law School will no doubt change its policies before OCR completes its investigation, after which, OCR will issue a ruling praising Harvard for complying with Title IX.  This is how OCR works.  It's not that the agency prefers carrots to sticks, it's that the investigation IS the stick that whacks schools into compliance - which is why schools HATE to be investigated and why they do all sorts of things to discourage victims from even knowing about their rights under Title IX.  But that's going to stop now, too, because while Title IX has long been considered a sports equity rule, the new advisory mandates that students be informed in writing that the law also applies to sexual assault. 

 

That OCR had the chutzpah to OPEN an investigation against the alma mater of the President of the United States is, itself, impressive.  One needn't be a cynic to appreciate how easy it is for power to trump justice.  Mind you, Harvard's rival, Yale, took most of the heat last week, and the investigation of Harvard has managed to stay under the radar while Yale's situation made national news, but so what.  There's something to be said for an administration that has no problem holding two of the world's most powerful institutions accountable for failing to respect women's civil rights.  And make no mistake - when schools of the magnitude of Harvard and Yale are put in their place, everyone else lines up behind them.  It's the best news for women in education since Title IX was enacted in 1972.

 

Here are a few additional points about Title IX – made clear in the new advisory:

 

1. A single act of sexual assault is enough to constitute actionable "sexual harassment" under Title IX.

 

2. Schools must provide redress for sexual assault and sexual harassment even if the behavior occurs off-campus or in cyber-space - so long as the EFFECTS are felt ON campus.

 

3. The rights accorded accused students must also be given to victims.  A school's disciplinary system is NOT akin to a criminal prosecution.  The victim and the accused stand on equal footing and are entitled to equal rights at every stage of the process.

 

It’s been a long time coming but Title IX has finally obtained its rightful seat at the anti-discrimination table - and our president - who I said didn’t have it in him to do the right thing on this issue - proved me wrong.