Investigating sexual harassment in higher ed

As federal rules change, administrators must develop more precise procedures and tap outside legal expertise.
By: | Issue: March, 2019
February 21, 2019
sexual harassment investigationCareful preparation, uniform reporting procedures and experienced counsel can help leaders navigate particularly sensitive situations.

Sexual harassment cases against university personnel are becoming a more frequent occurrence. Dartmouth College, Yale and Harvard universities, and UC Berkeley are only a few higher ed institutions where employees and faculty have been accused of inappropriate behavior or sexual abuse.

Administrators dealing with these issues may feel besieged by scandal and headlines. But careful preparation, uniform reporting procedures and experienced counsel can help leaders navigate these particularly sensitive situations.

Setting clear standards in sexual harassment investigations

While the Obama administration put more pressure on colleges and universities to thoroughly investigate all accusations, current Secretary of Education Betsy DeVos has focused on making the process fairer for the accused, according to regulations that the U.S. Department of Education proposed in 2018.

This clash of guidelines has forced campus officials to create their own reporting systems and penalties. Campus leaders must first set clear standards for employee behavior and consensual relationships, says Scott Schneider, a partner with Husch Blackwell LLP, a law firm that specializes in higher ed law services. Policy should also define what conduct is prohibited, what circumstances merit the investigation of incidents on and off campus, and how individuals can report complaints. Schneider recommends creating multiple avenues for lodging a complaint.

“Responding appropriately is incredibly complicated,” Schneider says. “The personnel tasked with this important responsibility need to have high levels of emotional intelligence, keen investigatory skills, report writing proficiency and tough skin.”

When to use outside counsel

Once reporting procedures are standardized, campus officials should re-examine how cases are investigated.

“It’s not a criminal proceeding within the university, and the adjudication of these cases should be treated differently than in the criminal justice system,” says Merrick T. Rossein, law professor with City University of New York School of Law. “Many women don’t want to go through the difficult process of reporting these cases to the police.” Administrators must create a system that allows a victim to feel safe in class and in dorms after making an accusation.

Accused parties in sexual harassment cases may soon be able to bring outside counsel to on-campus hearings. Colleges should tap independent resources as well. Campus attorneys often participate in a wide variety of cases at once, and without expertise in Title IX law, they may make mistakes on sexual harassment cases,
says Rossein.

“Tapping in-house counsel can save schools some money up front, but not necessarily in the long run,” says Rossein. “Mistakes during the adjudication will require further litigation.” Schools should also use outside legal experts to develop policy. If universities use their own professors as prosecutors, an expert advisor should also be available to provide guidance during hearings and deliberations.