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Stanford creates committee to review sexual assault policy
Original post made
on Jun 13, 2014
In response to recent student outcry over Stanford University's handling of sexual assault, the administration is convening a new faculty-student committee to work this summer on reviewing and reforming policy.
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posted Friday, June 13, 2014, 8:57 AM
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Posted by Palo Alto Parent
a resident of Old Palo Alto
on Jun 13, 2014 at 12:19 pm
For "Question" above, and others who might be wondering:
The short answer: A school's legal obligations under Title IX to investigate and address sexual discrimination and its effects on campus, including sex harassment and sexual assault (whether an alleged assault occurred off campus), are separate and different from what happens in the criminal justice system. Under Title IX law, schools cannot delegate these matters to the criminal justice system; schools instead must fulfill their own affirmative legal obligations in compliance with Title IX to investigate and provide remedies if sexual discrimination, harassment and/or sexual assault has occurred and has resulted in a hostile educational environment for the targeted student. The two investigative systems (the school process and the police process) operate independently of each other, and under different sets of laws. There are several reasons for this, one being that the standard of evidence in a criminal action is higher (beyond a reasonable doubt) because the potential penalties are more serious (taking away a person's liberty, etc.). The standard for a Title IX finding of harassment or assault is much lower (preponderance of the evidence) because the potential consequences to the accused student fall into a less severe range.
The U.S. Department of Education's Office for Civil Rights (OCR) explains schools' legal obligations under Title IX in some detail in a 2011 policy guidance document for all schools receiving federal funds (and thus subject to Title IX as a condition of funding), including the intersection between a school's process and the criminal process and how that works. The OCR policy document is known as the "Dear Colleague Letter" (DCL) and can be found at this link:
Another OCR guidance document on the topic was released this spring (2014). It is called "Questions and Answers on Title IX and Sexual Violence" and covers the same information as the earlier 2011 DCL, but in a FAQ format, intended to be more user-friendly. It can be found at this link:
Excerpts below from OCR's 2014 FAQ document address the issues of off-campus conduct, and the relationship of Title IX to criminal investigations, as follows:
Question: Is a school required to process complaints of alleged sexual violence that occurred off campus?
Answer: Yes. Under Title IX, a school must process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity. A school must determine whether the alleged off-campus sexual violence occurred in the context of an education program or activity of the school; if so, the school must treat the complaint in the same manner that it treats complaints regarding on-campus conduct.
In other words, if a school determines that the alleged misconduct took place in the context of an education program or activity of the school, the fact that the alleged misconduct took place off campus does not relieve the school of its obligation to investigate the complaint as it would investigate a complaint of sexual violence that occurred on campus. Whether the alleged misconduct occurred in this context may not always be apparent from the complaint, so a school may need to gather additional information in order to make such a determination. Off-campus education programs and activities are clearly covered and include, but are not limited to: activities that take place at houses of fraternities or sororities recognized by the school; school-sponsored field trips, including athletic team travel; and events for school clubs that occur off campus (e.g., a debate team trip to another school or to a weekend competition).
Even if the misconduct did not occur in the context of an education program or activity, a school must consider the effects of the off-campus misconduct when evaluating whether there is a hostile environment on campus or in an off-campus education program or activity because students often experience the continuing effects of off-campus sexual violence while at school or in an off-campus education program or activity. The school cannot address the continuing effects of the off-campus sexual violence at school or in an off-campus education program or activity unless it processes the complaint and gathers appropriate additional information in accordance with its established procedures.
Once a school is on notice of off-campus sexual violence against a student, it must assess whether there are any continuing effects on campus or in an off-campus education program or activity that are creating or contributing to a hostile environment and, if so, address that hostile environment in the same manner in which it would address a hostile environment created by on-campus misconduct. The mere presence on campus or in an off-campus education program or activity of the alleged perpetrator of off-campus sexual violence can have continuing effects that create a hostile environment.
A school should also take steps to protect a student who alleges off-campus sexual violence from further harassment by the alleged perpetrator or his or her friends, and a school may have to take steps to protect other students from possible assault by the alleged perpetrator. In other words, the school should protect the school community in the same way it would had the sexual violence occurred on campus. Even if there are no continuing effects of the off-campus sexual violence experienced by the student on campus or in an off-campus education program or activity, the school still should handle these incidents as it would handle other off-campus incidents of misconduct or violence and consistent with any other applicable laws.
For example, if a school, under its code of conduct, exercises jurisdiction over physical altercations between students that occur off campus outside of an education program or activity, it should also exercise jurisdiction over incidents of student-on-student sexual violence that occur off campus
outside of an education program or activity.
Question: What are the key differences between a school's Title IX investigation into allegations of sexual violence and a criminal investigation?
Answer: A criminal investigation is intended to determine whether an individual violated criminal law; and, if at the conclusion of the investigation, the individual is tried and found guilty, the individual may be imprisoned or subject to criminal penalties. The U.S. Constitution affords criminal defendants who face the risk of incarceration numerous protections, including, but not limited to, the right to counsel, the right to a speedy trial, the right to a jury trial, the right against self-incrimination, and the right to confrontation. In addition, government officials responsible for criminal investigations (including police and prosecutors) normally have discretion as to which complaints from the public they will investigate.
By contrast, a Title IX investigation will never result in incarceration of an individual and, therefore, the same procedural protections and legal standards are not required. Further, while a criminal investigation is initiated at the discretion of law enforcement authorities, a Title IX investigation is not discretionary; a school has a duty under Title IX to resolve complaints promptly and equitably and to provide a safe and nondiscriminatory environment for all students, free from sexual harassment and sexual violence. Because the standards for pursuing and completing criminal investigations are different from those used for Title IX investigations, the termination of a criminal investigation without an arrest or conviction does not affect the school's Title IX obligations.
Of course, criminal investigations conducted by local or campus law Of course, criminal investigations conducted by local or campus law enforcement may be useful for fact gathering if the criminal investigation occurs within the recommended timeframe for Title IX investigations; but, even if a criminal investigation is ongoing, a school must still conduct its own Title IX investigation.
A school should notify complainants of the right to file a criminal complaint and should not dissuade a complainant from doing so either during or after the school's internal Title IX investigation. Title IX does not require a school to report alleged incidents of sexual violence to law enforcement, but a school may have reporting obligations under state, local, or other federal laws.
Question: How should a school proceed when campus or local law enforcement agencies are conducting a criminal investigation while the school is conducting a parallel Title IX investigation?
Answer: A school should not wait for the conclusion of a criminal investigation or criminal proceeding to begin its own Title IX investigation. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, it is important for a school to understand that during this brief delay in the Title IX investigation, it must take interim measures to protect the complainant in the educational setting. The school should also continue to update the parties on the status of the investigation and inform the parties when the school resumes its Title IX
If a school delays the fact-finding portion of a Title IX investigation, the school must promptly resume and complete its fact-finding for the Title IX investigation once it learns that the police department has completed its evidence gathering stage of the criminal investigation. The school should not delay its investigation until the ultimate outcome of the criminal investigation or the filing of any charges.
OCR recommends that a school work with its campus police, local law enforcement, and local prosecutor's office to learn when the evidence gathering stage of the criminal investigation is complete.
A school may also want to enter into a memorandum of understanding (MOU) or other agreement with these agencies regarding the protocols and procedures for referring allegations of sexual violence, sharing information, and conducting contemporaneous investigations. Any MOU or other agreement
must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably, and must comply with the Family Educational Rights and Privacy Act ("FERPA") and other applicable privacy laws.