On campus, debate over civil rights and rape
For much of its 40-year history, the federal education gender-equity law known as Title IX has made headlines mostly on the sports pages. But over the last decade or so, Title IX has shifted onto a different patch of contentious terrain: sexual assault on college campuses.
The change is transforming how colleges must respond to sexual violence. Pushed by a series of court decisions and more recently by controversial guidance published last year by the Obama administration, colleges can no longer simply turn sexual assault reports over to police. They must investigate themselves, and face detailed requirements on how to do so — even the standard of proof to use. And they must train staff to help sexual assault victims, and remediate harm, for instance by providing counseling.
Victims’ advocates welcome what they call an overdue push for colleges to take seriously a problem they’ve long swept under the rug. They also say Title IX has reframed the entire discussion about sexual violence on campus.
“Ten years ago very few people understood the connection between Title IX and sexual assault,” said Wendy Murphy, a Boston attorney who has filed numerous complaints against universities over Title IX compliance. Now, “instead of teaching girls to be afraid and if something ever does happen it’s going to be like stealing somebody’s notebook, the conversation that gets taught to new students is this is a civil rights violation and it’s a serious one.”
The changes help ensure students like Kristina Ponischil aren’t driven out of higher education.
After Ponischil was raped at a party in her off-campus apartment at Western Washington University, police wouldn’t act, as often happens in college towns with “he said, she said” accounts of alcohol-influenced student encounters behind closed doors. Despite a restraining order, she kept encountering her assailant on campus.
“I was just constantly worried that I would run into him again,” Ponischil said. “It was just constant fear.”
But when she finally told an administrator, the school sprang to action, offering her support she needed. The campus judicial system, using a lower standard of proof than criminal courts, suspended her assailant, removing him from campus until she graduated in 2009.
“I was able to start healing,” she said.
But Title IX’s expanding role in campus sexual assault cases has proved contentious, even among victims’ advocates.
Some argue channeling sexual assaults into campus proceedings lets the criminal justice system off the hook. Others complain colleges aren’t punishing assailants hard enough. Still others oppose some of what the government now requires of colleges. For instance, schools may be required to pursue a case even if the victim wants to drop it, and they cannot offer absolute promises victims’ anonymity will be protected.
But the most vigorous criticism has come from civil libertarians, who argue the Obama administration’s guidance undermines the rights of the accused. They’ve focused on the requirement that colleges use a “preponderance of evidence” standard in such cases — a belief that guilt is more likely than not, and a lower standard than in criminal court.
Illustrating the dangers, they say, are cases like that of a former North Dakota student found responsible by a campus disciplinary board for sexually assaulting a fellow student. Later, police investigating the incident cleared him and brought false-reporting charges against his accuser. Still, he struggled to clear his name and has yet to return to school.
Title IX, these critics claim, is a blunt legal weapon for addressing sexual assault on campus. They too see a threat to access to education — but for the accused.
An oft-cited 2007 study estimated one in five college women were victims of an attempted or completed sexual assault. A national telephone survey estimated 20 to 25 percent of women would experience a completed or attempted rape in college.
A 2003 Justice Department study of violent crime calculated a lower but still alarming rate: about six college women per 1,000 per year, or roughly 3 percent overall during a college career.
Fewer than 5 percent of attempted or completed rapes are reported to law enforcement or campus authorities. That endangers others, because most campus rapes are committed by serial offenders (though usually not strangers).
Last April, the Department of Education’s Office for Civil Rights (OCR) sent colleges a “Dear Colleague” letter, explaining its interpretation of Title IX and outlining colleges’ responsibilities in confronting sexual assault. The 19-page letter carries over from previous administrations, but was the first to address directly how Title IX applies to sexual violence, not just harassment.
Colleges must provide “due process” for the accused, such as giving both complainant and accused timely access to relevant information. But the focus is protecting the accuser. Schools must act promptly to investigate, not waiting for a criminal case to proceed. If necessary, they must take interim steps to protect the complainant before a verdict is reached, such as separating the accused and accuser in classes and dorms, with any burden of inconvenience falling on the accused. And they must resolve cases promptly, so they can’t “run out the clock,” delaying messy cases until the parties have graduated.
The case for these strong measures lies with women like Ponischil and 24-year-old Ally Clendineng, who contends she was driven away from Northern Iowa Area Community College by a 2006 rape and the college’s inadequate response.
“I should have been able to finish school long before now,” said Clendineng, who says she was forced into almost daily encounters in the dorm with her assailant after police dropped charges against him and the college failed to remove him from school. She believes she could have, if the colleges had given her more support and done more to keep her assailant away from her.
A NIACC spokeswoman, Michele Appelgate (CQ), provided with a summary of Clendineng’s account, said it did not accurately reflect the college’s response in that case. She also provided a statement from president Debra Derr describing a series of changes and improvements, made under new leadership four years ago, to the college’s sexual assault response policy.
Alison Kiss of the group Security on Campus said it remains all too common that students don’t know their Title IX rights, and that colleges to fail to inform them (a reauthorization of the Violence Against Women Act now pending before the Senate would expand colleges’ responsibilities to do so). Many colleges still aren’t doing enough, Kiss said. But she said the OCR letter has prompted many to improve their training and response.
She has mixed feelings about such cases being resolved on campus instead of the courts. But until prosecutors prove more willing to take such cases on, colleges must offer victims an alternative or they will be driven from school.
But a former University of North Dakota student named Caleb Warner has seen the flip side of Title IX enforcement.
During finals week in 2009, he says, a fellow student with whom he’d hooked up before, and been texting with ever since, invited herself over.
They had sex — consensual, he insists — but after she departed the next morning, she stopped responding to his calls and texts, and he let it drop.
A few weeks later, an administrator pulled him from class. He’d been accused of rape, and would have to face charges in the campus disciplinary system — within 10 days.
What followed, as Warner and his mother describe it, was a “kangaroo court” campus trial where a hostile administrator attacked Warner’s witnesses as just standing up for a fraternity brother. He was found responsible and kicked off campus — and banned from any state school — for at least three years.
Warner is hardly the only student accused of sexual misconduct to claim unfair treatment. But his case took an unusual twist. After his quick campus trial, a Grand Forks police detective began investigating possible criminal charges against Warner. According to a police report, the detective caught Warner’s accuser in a series of lies about the incident and her previous communications with Warner. Multiple witnesses contradicted her story.
Eventually the police brought charges — against her.
Not even in the famous Duke lacrosse case, Warner and others supporting him noted, did law enforcement go so far as to file false reporting charges against an accuser after a rape case collapsed.
Still, for months UND refused to reconsider Warner’s case, arguing the results of the police investigation did not amount to “substantial new information.” It wasn’t until last October, after a campaign led by Warner’s mother was starting to inspire critical letters from alumni, that the university relented and overturned Warner’s sanctions.
Not that Warner plans to return to the school.
“I’m actually a big Bison fan now,” he says, referring to UND’s rivals, North Dakota State. He’s driving a delivery truck for a shipping company, trying to pay back his family’s legal bills, and unsure if he’ll ever return to college.
Warner’s accuser has since left the state; a warrant is open for her arrest. UND said it couldn’t comment specifically on the case, but takes seriously its obligation to balance student safety and the rights of the accused.
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Under the OCR guidance, colleges must judge Title IX cases under a standard of “preponderance of evidence.” That standard, common in civil law cases, means schools must conclude only that there is a 50.1 percent chance the accused is guilty to find him responsible.
Courts have long granted colleges leeway to use lower standards of proof because they are educational proceedings, enforcing college rules, not criminal laws. And in fact, even before the recent guidance, a majority of colleges were already using the standard of “preponderance” in sexual assault cases.
Without the preponderance standard, it can be difficult for colleges to remove rapists.
“The ability to get to proof beyond a reasonable doubt, which is the criminal standard, when you have two people who did something behind closed doors where there were no eyewitnesses and probably a lot of alcohol, it’s incredibly hard to prove,” said Brett Sokolow, managing partner of the National Center for Higher Education Risk Management, which advises colleges on Title IX.
Still, until recently, roughly 20-30 percent of colleges, including most elite institutions, maintained a higher burden of proof. After the OCR guidance, virtually all of them changed to preponderance, including in at least once case, at Stanford University, while proceedings against a student were already under way.
To some civil libertarians, a rape allegation, even in the campus disciplinary system, is more akin to a criminal charge, and colleges should at least be allowed to offer stronger protections to the accused.
Other than a college campus, “there is no other place in America where a body can determine you’re guilty of rape, particularly a body that is run by the government, based on a more-likely-than-not standard,” said Robert Shibley, an attorney with FIRE, the Foundation for Individual Rights in Education. “You’re talking about effectively convicting somebody and saying they’re a rapist. You take a really huge stigma with you your entire life.”
Russlynn Ali, the assistant secretary of education for civil rights, who signed the “Dear Colleague” letter, emphasized OCR’s guidance is intended to protect victims and clarify college administrators’ responsibilities toward them.
“It is not intended to trump the rights of the accused,” she said.
But Shibley says the effect of the guidance is exactly that.
“There’s a reason we don’t run our real courts that way,” he said, “because you can do so much damage to somebody.”
Ponischil, however, says she was grateful Western Washington had the tools to move aggressively to remove her assailant after police wouldn’t act, and that an administrator there gave her the help she needed to heal.
“Just having her there say there’ something we could do, you don’t have to keep on living like this, it was very powerful,” she said. “Having all those doors closed, it felt like no your story isn’t important, it doesn’t matter what happened to you. I was really glad that there was more that we could do.”