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Federal Title IX investigations, explained

| Senior Editor

Since the Department of Education’s Office of Civil Rights opened three active federal Title IX investigations on Washington University’s campus in early July, further updates on the status of the cases have been non-existent. And that’s not unusual.

Title IX’s sexual harassment investigations, of both the federal and on-campus kind, can often be murky and long-lasting. Although the federal investigations Washington University is currently undergoing differ substantially from University-led on-campus investigations, understanding how the on-campus investigations are run is essential to understanding why Washington University is now in the midst of federal investigations.

While Title IX has been around since 1972, the guidelines for how its sexual harassment investigations should be conducted were introduced in 2011 as part of the “Dear Colleague” letter from former President Barack Obama’s administration. Described as a “significant guidance document” by the Department of Education, the letter includes provisions such as a 60-day recommended investigation limit, the ability for accusers to appeal a not-guilty plea and a lowering of the standard of proof to a preponderance of evidence, the lowest possible standard.

That said, universities have no obligation to follow those standards so long as a process exists on campus and a Title IX coordinator is appointed. Thus, each university’s process is varied and different. A federal investigation occurs when a complaint is filed with the Office of Civil Rights (OCR) alleging discrimination “on the basis of sex”—i.e. a Title IX violation.

So in an effort to shed some light on what awaits Washington University in the coming months, here are the answers to four common questions regarding the federal Title IX investigation:

What qualifies as a Title IX violation in regards to sexual harassment?

By the exact letter of the law, Title IX stipulates that:

“No person in the United States shall, on the basis of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

That’s it. The simple provision was originally added as part of the United States Education Amendments of 1972 in order to promote more equal hiring practices within higher education.

Because of the provision’s simplicity, its history has been fraught with legal battles over its interpretations and implementations.

One such important legal battle for the Washington University context was “Grove City College v. Bell.” This Supreme Court case ruled against Title IX, applying to all colleges that received direct or indirect (think federally funded scholarships for individual students) federal aid. While initially a victory for those opposed to Title IX, the ruling was smothered four years later by the Civil Rights Restoration Act of 1988, which explicitly included direct and indirect federal aid in Title IX.

Another important clarification of Title IX was the 2011 Dear Colleague letter. Intended to give institutions of higher education guidance on how to handle cases of sexual harassment, the Dear Colleague letter mandated each campus have a Title IX coordinator and set the standard for guilt at a “preponderance of evidence.”

The University instituted its own Title IX Office following the 2011 letter, appointing Jessica Kennedy as its coordinator. The Relationship and Sexual Violence Prevention Center was created in 2015 in order to provide confidential resources to sexual assault survivors, with Kim Webb as its director.

So, to answer the above question, a Title IX violation in regards to sexual harassment is any act committed by a perpetrator that excludes, denies or discriminates against another person on the basis of sex, as long as a preponderance of evidence that the act occurred can be provided.

But how do you get from complaint to a proven violation?

Each university approaches this question differently. Some have their Title IX coordinator handle everything, whereas others, such as Washington University, use a panel in addition to the Title IX coordinator to determine guilt.

But that’s jumping ahead too much. Within the University process, when a complaint is filed with the Title IX office, Kennedy reviews that complaint and meets with the relevant parties. Following those meetings, Kennedy determines whether the complaint either does or does not qualify as a violation. If it does not qualify, Kennedy will then meet with the complainant to discuss resources and other avenues to pursue.

If Kennedy determines that it might qualify, then the process depends on whether the complaint involves sexual assault or not.

In the University community, sexual assault is defined as “sexual contact with any member of the university community or visitor to the university without that person’s consent, including, but not limited to, rape and other forms of sexual assault,” according to the University Sexual Assault Investigative Board (USAIB).

If the complaint does not meet that standard but still qualifies as sexual harassment under Title IX, be it in the form of dating/domestic violence, stalking, etc., then the Title IX office will decide whether the case should continue in the USAIB process or go through the University Sexual Conduct Board’s process. Any and all complaints involving sexual assault that Kennedy determines might qualify as a violation goes through the USAIB process.

At Washington University, the USAIB process begins by naming an investigator from outside the University to gather information pertinent to the case and interview any relevant witnesses. When the investigator completes that report, the Title IX Office selects a panel consisting of three USAIB members, each of which have undergone sensitivity training. Ideally, this panel will consist of one faculty member, one staff member and one student, though it sometimes consists of two of one category and one of another. The University attempts to the best of its ability to pick panel members that share identities with the complainant, reflecting the nuance of a particular situation.

The three-person panel will review the investigator’s report and potentially request that the investigator gather more information. The investigator, having gathered additional information, will issue the final report to the panel, who then can interview the parties at hand and any relevant witnesses.

After this, the panel makes a decision using a standard of “more likely than not” to determine guilt. Lori White, the vice chancellor for student affairs, determines the appropriate sanctions if the respondent is found guilty. Regardless of the panel’s decision, both parties—the complainant and respondent—can appeal the decision to Provost Holden Thorp, whose decision is final.

When accounting for scheduling difficulties among all of the involved parties (complainant, respondent, witnesses), this process rarely takes less than the 60 days recommended by the Dear Colleague letter.

Washington University is under federal investigation though, why?

A federal investigation arises wholly independent from any on-campus procedure. Anyone—complainant, respondent or just an interested third party—can appeal to the OCR to have the department investigate a university-at-hand’s response to a complaint.

In the case of the two federal investigations pertaining to sexual assault cases on Washington University’s campus, each alleges that “the University failed to promptly and equitably respond to her reports of sexual assault by another student,” according to letters mailed to Chancellor Mark Wrighton and the complainant from the OCR.

No documents have yet been released pertaining to the third federal Title IX investigation against the University, which Student Life reported in July was related to sexual harassment.

The timeline of the OCR investigation is as of now unclear, as these investigations haven taken anywhere from two weeks to five years previously, according to a University administrator.

OK, so what are the penalties if the federal investigation finds Washington University in violation?

The most severe penalty that Washington University stands to face is a complete loss of federal funding, though that move would be unprecedented.

Instead, it’s more likely that the OCR would settle with the University, as long as it agreed to modify its Title IX processes to better serve students in the future. The federal investigation will make no determination on the guilt of any parties in the specified cases, instead just deciding whether the University adequately served its role in the process.

The University is already taking steps to improve its Title IX process, and two new staffers were hired this summer to assist Kennedy with the caseload. The University also is hosting multiple listening sessions this month to hear about student experiences with Title IX, how the process can be improved and anything else students might want to say.

Starting with two op-eds published in Student Life last spring on the University’s Title IX process’ failing, it seems students have a lot to say.

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