Seeking to Strengthen Sex-Assault Policies, Colleges Draw Fire From All Sides

Depending on whom you talk to these days, Harvard University’s policies to prevent sexual assault either are woefully inadequate or risk trampling on the rights of men following tipsy, consensual hookups.

Similar sentiments swirl in discussions at Ohio State University, another institution caught in a tug of war as it struggles to revise sexual-misconduct policies in ways that are fair to both the accusers and the accused. Both campuses have been faulted by the federal government for failing to adequately protect victims, while simultaneously being lambasted by those who say the institutions are overcorrecting and being unfair to the accused.

Sitting in the hot seat are Title IX coordinators who have the unenviable job of overseeing compliance with a 1972 law that bans gender discrimination in education programs that receive federal financial aid.

They’re doing so under the watchful eye of the Education Department’s Office for Civil Rights, which, as of this week, is investigating 94 colleges for possible sexual-assault violations. Meanwhile, both women and men are filing Title IX lawsuits against their colleges, charging that they were not taken seriously enough or were dealt with too harshly because of their gender.

On Wednesday, for instance, the woman who accused Florida State University’s star quarterback, Jameis Winston, of rape filed a Title IXlawsuit against the university for allegedly dragging its heels in investigating her complaint, creating "a sexually hostile environment where her rapist roamed free."

Florida State officials have denied any such delay, and say they asked the woman and her lawyer at least nine times over 20 months to make a statement to begin a Title IX complaint. An outside investigator determined last month that there was not enough evidence to find Mr. Winston responsible for any violations of the university’s student-conduct code.

Title IX requires that campus officials investigate reports of sexual harassment and assault, whether or not the police are involved. Colleges that fail to respond to complaints promptly and fairly can face sanctions, including the loss of all federal funds.

The federal government has been enforcing the law much more aggressively since 2011, when the Education Department released a strongly worded "Dear Colleague" letter prescribing how colleges should handle reports of sexual misconduct. Last year the Obama administrationcranked the heat up even more by issuing 20 pages of guidelines on how colleges should be identifying, responding to, and preventing sexual assault.

Among the institutions it cracked down on in recent years are the Virginia Military Institute, Tufts University, and Princeton University.

Meanwhile, new players are entering the enforcement arena. The U.S. Justice Department, which joined the Office for Civil Rights in an investigation of the University of Montana at Missoula in 2012, notified the University of New Mexico last month that it’s looking into complaints there too.

Spotlight on Harvard

But perhaps nowhere has the controversy been more intense recently than at Harvard, where the law school agreed last month to strengthen its response to sexual-assault complaints after the Office for Civil Rights, or OCR, found that the school’s handling of such cases violated Title IX.

The conditions of the agreement included a number of steps that are typical in such resolutions with OCR. The law school agreed to review complaints filed during the 2012-13 and 2013-14 academic years, conduct annual "climate assessments," and expand training for staff members.

The resolution doesn’t affect a separate universitywide policy that has been the subject of considerable dispute since it was adopted, in July. That policy, which is still being reviewed by OCR, centralized the handling of all sexual-harassment and sexual-assault cases. It also adopted a new, lower "preponderance of the evidence" standard for assessing guilt. That standard, which OCR requires, allows an accused student to be found guilty if the college is at least 51 percent sure of his or her responsibility for an alleged incident.

That’s far lower than the standard applied when rape cases are tried in criminal court. Prosecutors generally must prove "beyond a reasonable doubt" that someone is guilty—a requirement that women’s advocates argue can be overly burdensome.

Some higher-education experts predict that disagreements over Title IX requirements will ultimately be decided by the courts. The "preponderance of the evidence" standard that OCR calls for is one such sticking point because it raises questions about fairness, according to Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University.

Meanwhile, arguments over Harvard’s sexual-assault policies show no signs of dying down. This fall 28 current and former Harvard Law School faculty members, including a former dean, wrote a letter, published in The Boston Globe, calling Harvard’s procedures "overwhelmingly stacked against the accused."

That letter, in turn, prompted a rebuttal by a student group, which calls itself Our Harvard Can Do Better, that says that if the university’s policy is stacked against anyone, it’s the alleged victims.

According to the law professors, Harvard’s universitywide policy would put students at serious risk of being found guilty of rape if the students involved were "impaired" by alcohol or drugs, rather than "incapacitated," said Elizabeth Bartholet, a Harvard law professor who signed the letter.

A ‘Moment of Madness’?

"This means that students who engage in sexual touching or sexual intercourse while having a few drinks are all at risk of being held guilty of the very serious charges of sexual assault and rape," she wrote in an email to The Chronicle, "regardless of their understanding at the time that they mutually consented to such activity."

Harvard, she said, should have played a leadership role for other colleges grappling with these issues by resisting the federal requirements.

"I believe that history will demonstrate the federal government’s position to be wrong, that our society will look back on this time as a moment of madness, and that Harvard University will be deeply shamed at the role it played in simply caving to the government’s position," she wrote.

Harvard’s Title IX officer, Mia Karvonides, was unavailable for comment.

Few universities are going to be willing to take on the federal government when so much federal money is at stake, Mr. Lake said. "OCR holds everyone’s funding in the palm of their hands," he said. "When you’re playing with a nuclear force on the table, it changes the negotiating dynamics."

Like Harvard, Ohio State has found itself in the cross hairs of both federal regulators and advocates for accused students. In September the university agreed to strengthen its sexual-harassment and sexual-assault policies after OCR concluded that it had violated Title IX.

Investigators praised the university, though, for its efforts to clamp down on sexual misconduct in the university’s renowned marching band, including its decision to fire the band's director, Jonathan Waters, in July. The university did so after determining that the band had a "sexualized culture" that Mr. Waters didn’t do enough to stop.

But Title IX came back to haunt the university from a different direction when, in September, Mr. Waters filed a federal lawsuit against the university and its top leaders seeking reinstatement and at least $1-million. The lawsuit said, in part, that Ohio State had violated his rights under Title IX by treating him more harshly because he is a man.

Band alumni also leapt to his defense with their own 67-page report that accused the university of conducting a shoddy investigation and of "sacrificing" Mr. Waters to show OCR that it was complying with Title IX.

Meanwhile, women have filed dozens of Title IX complaints against their colleges, although relatively few of them have been resolved. And increasingly, men are joining in, arguing, like Mr. Waters of Ohio State, that they’re being discriminated against because of their gender.

A website called A Voice for Male Students lists 56 cases it says were brought by "young men wrongly accused of sex crimes [who] found themselves hustled through a vague and misshapen adjudication process with slipshod checks and balances and Kafkaesque standards of evidence."

Joshua A. Engel, a lawyer who also represents men who feel they’ve been unjustly accused of rape, said many colleges "provide significant resources for students who make allegations, but no support for students who are accused; many cannot afford legal help and must act alone."

Brett A. Sokolow, president of the National Center for Higher Education Risk Management—a consulting and law firm that advises colleges—said he gets about two new cases a week from men who feel they’ve been wrongly accused of sexual misconduct. That number has remained steady despite all the recent media attention to sexual assault, and despite the backlash over the misreporting of an alleged gang rape at the University of Virginia.

"Perhaps," he said, "colleges are getting the word about respecting the equal dignity of all students."

Read more at The Chronicle of Higher Education: http://chronicle.com/article/Seeking-to-Strengthen/151083