Allegations of sex abuse, once hidden from public view at universities, are seeing the light of day at record levels.
That attention leads to inevitable questions: How can a school conduct the required investigation when a complaint is made, and deal with victim concerns that schools turn a blind eye to their needs? Should it conduct the investigation itself, keeping confidential the name of the accuser and perhaps making it easier for the alleged victim to come forward? Or, should it defer to formally trained law enforcement?
In addition, how do schools respond to the expanding role of the federal government? Not only has the Obama administration set up a task force on the issue, there have been legislative efforts to mandate cooperation between campuses and law enforcement.
The Department of Education’s Office for Civil Rights is currently investigating 97 American colleges and universities for their handling of sexual violence on campus, and whether they are compliant with Title IX. Many of these schools have agreed to resolve compliance concerns with remedial measures.
Title IX prohibits discrimination on the basis of gender in educational programs and activities for schools that receive federal assistance. This federal statute is now the key mechanism by which students who feel victimized by sexual assault are taking the schools to task. As a result, schools face liability where it can be shown that they failed to adequately respond to, and remedy, a hostile educational environment.
Take the case of a Florida State University football star, accused of rape in December 2012. His accuser promptly reported the matter to the police. After a year-long investigation, no charges were filed. The woman filed a complaint with the Office for Civil Rights in April 2014, which resulted in an investigation of Florida State’s handling of the matter. That investigation is pending.
In August 2014, the school finally began its own investigation, which concluded that there was insufficient evidence that the player violated the school’s code of conduct. The accuser appealed, but university administrators affirmed the finding. In January 2015, a Title IX claim was filed against the university’s trustees, asserting that the school’s actions were discriminatory because they showed a “deliberate indifference” to the accuser’s safety and well-being.
As part of the ensuing Title IX litigation, FSU’s conduct in the matter is at issue. The school’s position?
Even though the head football coach and senior athletic director knew of the allegations within a month of the event—and cooperated with police during the initial phase of the investigation—they were not the appropriate people to respond to the accuser’s claims of sexual assault because they could not remedy the situation. Thus, the university argued, it should not be faulted for its lack of timely response.
The accuser charged that those two individuals actively concealed the issue to protect their star player. The purpose of Title IX would be circumvented if the school were to escape liability on the grounds that the coach and athletic director were not sufficiently empowered to rectify the situation.
The case continues even though both the accuser and the accused have since left the school. Like other schools, FSU has used this incident to launch a new initiative to guard against abuse on campus, better educating the faculty and student body on issues such as consent, prevention and intervention.
The outcry from victims, as well as government initiatives to address the issue, has put pressure on schools to act where the political and legal landscape is evolving and unclear. What is transparent, however, is a need to attend to this significant problem and respect the dictates of Title IX.
Karen Bitar is a partner in the litigation department of Seyfarth Shaw LLP. She can be reached at [email protected].