Sexual misconduct occurs on college campuses every day. Most recently, several faculty and staff at Ohio State University, the University of Southern California, and Michigan State University have been accused of failing to protect their students from the sexual misconduct of coaches and campus physicians. While most universities have developed their own internal method for handling claims of sexual misconduct, there has been little federal guidance governing sexual misconduct on college campuses. This may soon change.
Between 2011 and 2017, the U.S. Department of Education conducted over 450 Title IX investigations. In 2011, the Obama Administration’s Department of Education drafted a Dear Colleague letter, which addressed a perceived failure to protect victims of sexual assault on college campuses. Following the distribution of the Dear Colleague letter to over 4,000 colleges and universities, many schools amended their policies to be more victim-friendly. In some cases, school administrations followed the letter’s advisement to adopt a preponderance of evidence standard of proof, which is the lowest legal standard, requiring a jury find over a 50 percent likelihood of guilt against the accuser.
Secretary of Education, Betsy DeVos, recently announced proposed changes affecting the way many higher education institutions handle sexual misconduct complaints. Under the suggested federal rules, schools can adopt their own higher evidentiary standards and make it much more difficult for a victim of sexual harassment to prove his or her case.
Those accused of committing sexual misconduct would have greater procedural protections under the proposed changes, including the right to use mediation to resolve sexual misconduct claims. Previously, mediation of sexual misconduct claims was deemed by some to be too traumatic for the victims, who would be subjected to direct and cross examination by the alleged abuser.
The proposed regulations also adopt a narrow definition of sexual harassment as being unwelcome conduct based on sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity. Only when a school has actual knowledge of sexual misconduct would there be potential liability. Another significant change is that the college or university has no duty to investigate any incidents occurring off-campus, such as in fraternity houses, even if such incidents involve students.
The draft proposal would impose liability on higher education institutions only in those cases where a formal complaint of sexual misconduct has been filed against the school. This eliminates liability when a sexual assault victim only reports the incident to a dormitory residential advisor. A school would be liable for failure to respond to sexual misconduct only if the administration’s response is clearly unreasonable, considering known circumstances.
Critics believe the changes would make it more difficult for the victims of sexual harassment to prove their cases and easier for colleges and universities to avoid legal liability. Although there would be a public comment period regarding the proposed rules, the changes could go into effect without requiring a Congressional vote.
If your organization is facing sexual misconduct allegations, contact the experienced Pennsylvania education law lawyers at MacMain, Connell & Leinhauser are ready to assist you. For more information, contact us at 484-318-7106 or contact us online. Located in West Chester, Pennsylvania, we serve clients from the surrounding areas.