By Wendy Murphy
WeNews contributing editor
Monday, January 31, 2011
With several universities under investigation by the Department of Education for their handling of sexual assault complaints, Wendy Murphy is keeping a sharp eye out for Obama's expected Title IX advisory on the problem.
(WOMENSENEWS)--Momentum appears to be building to do more to prevent campus sex assault.
One major sign: President Obama plans to issue an advisory guided by Title IX, the federal law that requires schools to adopt "prompt and equitable" policies to fairly and effectively redress sexual harassment (including sexual assault) complaints.
This is a welcome development. It follows on the heels of growing concern that reports of sexual assault on campus are either being ignored or subjected to disciplinary hearings that are not compliant with federal law, to the disadvantage of victims and in violation of their rights under Title IX.
In my work as an activist on this topic for more than 15 years, I've filed numerous complaints with the Department of Education's Office for Civil Rights against schools all over the country. Four of my cases are among those now pending that have motivated the president to issue a much-needed advisory on the topic.
Without an advisory, made expressly applicable by the president to all schools, meaningful change is difficult because each ruling by a regional Office for Civil Rights in an individual case has a mandatory effect only on the particular school under investigation.
Title IX has been around since 1972, but the federal government has done little to demand uniformity across campuses nationwide. An advisory will compel all schools to adopt appropriate and effective standards with due regard for Title IX so all students are afforded a baseline of legal protection no matter what college or university they attend.
In one of my pending cases, Harvard Law School is under investigation, for the first time, for a variety of alleged civil rights violations related to its handling of sexual assault cases. The move was announced in December, following a complaint filed last September.
I also filed complaints against three other schools, on behalf of individual victims whose rights were violated during their school's Title IX redress process or on behalf of women as a class in circumstances where illegal polices, alone, were enough to merit a federal investigation.
One issue, presented in three of the complaints, including Harvard Law School and the University of Virginia in Charlottesville, involves allegations that the schools are applying an illegal burden of proof during campus sexual assault hearings.
Federal law requires only a "preponderance of evidence" standard, which equates to roughly 51 percent proof. This standard is important in sex assault cases where consent, or "unwelcomeness," is typically the only disputed issue and only two people know exactly what happened.
Harvard Law School--like the University of Virginia, Stanford in Palo Alto, Calif., and many other schools--applies a much stricter "clear and convincing" evidence rule, which makes equitable redress of violence behind closed doors exceedingly more difficult.
Other issues now under investigation include policies that force victims to choose between the real-world criminal justice system and a school-based disciplinary hearing.
Victims who want to pursue both avenues are unfairly made to wait until the criminal process has run its course before the school takes action. This leaves the victim to finish her education among students who often take sides and engage in overt acts of retaliation and intimidation to pressure the victim to back down.
It also means that the offending student may graduate before the school can take action. "Running out the clock" like this can be appealing to scandal-averse schools hoping to do nothing until the "problem" leaves campus by virtue of graduation. At that point, the school--and often the Office for Civil Rights--loses jurisdiction over the controversy.
Federal law is well-settled under Title IX that a school may not wait to take action until after the district attorney has either finished the prosecution or decided not to file charges. Yet this is exactly what Harvard Law School did in the case I filed against them. No one affiliated with the school--not even women's advocates who work there and purport to be experts in the field--advised the victim that her rights were being violated.
Indeed, victims are rarely informed of their rights in this regard at any school, which is why these pending investigations, and Obama's anticipated advisory, are so significant.
Another policy concern in my pending cases involves the way schools grant appeals and rehearings to students initially found guilty of committing a sexual offense. Appeals are legal, but in many cases the victim is not even aware that appellate proceedings are occurring.
Some schools argue that this is fair because the victim is no longer involved in the process and that her rights under Title IX end after she completes her participation in the initial hearing.
Federal law sees it differently. Even though a victim may not be a "party" to a school-based disciplinary hearing, she enjoys important rights under Title IX that survive resolution of the initial hearing. This means that while a victim cannot dictate whether a school allows appeals or rehearings, she can file a federal complaint if she is unaware of the proceedings, or if they are otherwise "inequitable" under Title IX.
In another of my cases, against Hofstra University in Long Island, N.Y., I filed an appeal from a regional Office for Civil Rights decision involving "cyber-sexual harassment" through the now-defunct Web site juicycampus.com.
Though the decision from the regional office favored my client and caused juicycampus.com to shut down, the ruling itself lacked clear language that could have guided other schools in strong policies against cyber-harassment.
My appeal asks the national Office for Civil Rights officials to clarify the circumstances under which schools must take steps to stop cyber-harassment, even against claims that such harassment is protected speech under the First Amendment. It also asks for clarification as to when schools may, and in most situations must, assert jurisdiction over cyber-harassment that occurs off-campus (in cyberspace) when the behavior "causes harmful effects" on campus.
An advisory from President Obama is bound to inspire schools to step up their sexual assault and harassment redress policies under Title IX.
It will also help beat back the predominant feeling among too many school officials and their lawyers that it's cheaper and easier to favor offenders and sidestep public scandal.
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Wendy Murphy is an adjunct professor at New England Law/Boston where she teaches a seminar on sexual violence. She's a former sex crimes prosecutor and author of "And Justice For Some." An impact litigator who specializes in violence against women, Murphy consults and lectures widely on sex crimes, violence against women and children and criminal justice policy.