A Better Balance: Providing Survivors of Sexual Violence with “Effective Protection” Against Sex Discrimination Through Title IX Complaints
abstract. Although gender-based violence has long been recognized as a form of sex discrimination prohibited under Title IX, many survivors receive little to no support from their college or university after experiencing violence. In response, an increasing number have sought redress by filing complaints with the U.S. Department of Education’s Office for Civil Rights (OCR). But as this Feature demonstrates through interviews with complainants, many wait years for relief in part because OCR currently resolves discrimination faced by individuals at the end of its lengthy investigations of structural issues. We argue that this policy, which can result in complainants experiencing unmitigated discrimination for years, is contrary to a key statutory aim of Title IX: providing “effective protection” to individuals. Furthermore, we charge that OCR, as the agency responsible for enforcing Title IX, has a legal mandate to provide for this protection, and that it can strike a better balance between systemic concerns and individual interests through establishing consistent guidelines for communicating with complainants; setting a maximum threshold of two years after the case is opened for investigating and resolving complaints; creating a corps of specialized investigators to handle cases; and acting, when possible, to protect an individual’s ability to access education while investigations are ongoing.
authors. Alyssa Peterson: Georgetown University, B.A. 2014. I would like to thank my editors Elizabeth Deutsch, Mike Clemente, and Dahlia Mignouna for their enormously helpful comments and insights throughout the process. I am also grateful to Lynn Rosenthal, Nancy Cantalupo, Cari Simon, Dana Bolger, Alexandra Brodsky, Jason Gerson, and Zoe Ridolfi-Starr for the conversations that gave rise to these ideas in the first place. But most of all, I am in the debt of the complainants whose activism makes this work possible.
Olivia Ortiz: University of Chicago, B.A. expected 2016. I would first like to extend my deepest gratitude to Elizabeth Deutsch, Mike Clemente, and Dahlia Mignouna for their invaluable edits. I thank Nancy Cantalupo, Lynn Rosenthal, and Cari Simon for shaping the Feature with their legal insights. I would like to thank my legal representatives at the Chicago Alliance Against Sexual Exploitation, the first to inform me of Title IX, for inspiring me with their phenomenal ideas and legal prowess. I am endlessly grateful for my support system: my wonderful friends, who supported me from near and far, and my parents, who have always believed in me. Most of all, I would like to thank complainants for sharing their stories and expertise; your trust means the world to me.
Despite Title IX’s prohibition against discrimination based on sex,1 many survivors of gender-based violence receive little to no support from their college or university after experiencing violence.2 In response, an increasing number of survivors are filing Title IX complaints with the U.S. Department of Education’s Office for Civil Rights (OCR).3 After they file these complaints, most survivors must wait years—sometimes even until after they graduate or withdraw from the institution—to get redress.
While OCR has dramatically improved its efforts to reform structural Title IX compliance across universities,4 and despite OCR criticizing schools for affording insufficient protections to victims alleging violations,5 it has done relatively little to promote complainants’ immediate access to education. In its pursuit of structural compliance, OCR requires institutions to create or improve systems, procedures, or offices involved in the handling of gender violence complaints.6 (Examples of such efforts include requiring a university to establish a task force on sexual violence or to provide additional training to its staff.)7 While these systemic reforms do ultimately benefit individual students,8 OCR’s decision to resolve both structural and more individualized issues (such as a complainant’s lack of access to accommodations, their unreimbursed educational expenses incurred due to discrimination, or retaliation they experience) within the same voluntary resolution agreements has created unnecessary tension between the need to thoroughly investigate broad-based systemic issues9 and an individual’s interest in seeing her10 complaint resolved in a timely manner.11
We argue that OCR’s current approach of prioritizing systemic concerns over individual interests is contrary to the dual purpose of Title IX. As the Supreme Court explained in Cannon v. University of Chicago, Title IX (which is patterned after Title VI)12 has two statutory aims: to “avoid the use of federal resources to support discriminatory practices” in education programs, and “to provide individual citizens effective protection against those practices.”13 OCR’s current approach focuses disproportionately on achieving the former at the expense of the latter. However, the current tension is not insurmountable: OCR can strike a better balance between systemic reform and providing “effective protection”14 to individual complainants.
We recommend that OCR take affirmative steps to reduce investigation delays by capping investigations at two years and hiring specialized gender-based violence investigators. Additionally, OCR should reform its communications with complainants by standardizing outreach and providing regular updates. Most importantly, OCR should not wait until the end of investigations to provide relief to individual complainants. To support its recommendations, this Feature contains selections from interviews with individuals who have filed Title IX complaints with a variety of OCR regional offices.15
In its pursuit of systemic reforms, OCR has struggled to prioritize the task of securing timely relief for individual complainants. OCR’s commitment to conducting thorough structural investigations of a growing number of complex gender-based violence complaints, along with Title IX’s statutory requirement that OCR seek voluntary compliance from schools,16 has produced long delays in investigating and resolving cases. Because OCR does not require remedial measures on behalf of complainants until systemic issues are resolved, complainants may receive relief years after they initially filed their complaints—often after they have graduated or withdrawn from school.
Although Title IX encompasses two mandates—ending “the use of federal resources to support discriminatory practices” and providing “individual citizens effective protection against those practices”17—OCR has focused its attention on the former aim and has greatly expanded its efforts at systemic reform in recent years.18In April 2011, OCR released its groundbreaking “Dear Colleague Letter” (DCL).19 The DCL’s guidance reaffirmed the principle that sexual violence constitutes discrimination on the basis of sex and is therefore covered under Title IX. OCR called upon schools to “take immediate action to eliminate harassment, prevent its recurrence, and address its effects.”20 The DCL further contained the most thorough details to date of schools’ specific obligations to combat gender-based violence and harassment.21 With the issuance of this letter, OCR signaled that the government would initiate a more aggressive enforcement policy to hold schools accountable for Title IX violations.
In addition to issuing new policy guidance, the federal government has also initiated an aggressive effort to enforce Title IX’s prohibition on using federal resources to support discrimination.22 In May 2014, OCR built upon its DCL and increased transparency by releasing an unprecedented list of fifty-five institutions under federal investigation for violating Title IX.23 In response to receiving an increased number of complaints in fiscal year (FY) 2013, FY 2014, and FY 2015, OCR opened investigations into schools at a rapid rate; as a result, the number of institutions of higher education under investigation almost tripled.24
Table 1. 25
total number of sexual violence complaints received by ocr
OCR has also pursued Title IX’s mandate of ending “the use of federal resources to support discriminatory practices”26 by adopting a more critical posture in its dealings with schools. Prior to the Obama Administration, OCR had been labeled as a “rubber stamp” that “simply sign[ed] off on universities’ decisions.”27 OCR’s approach has changed drastically in recent years under Assistant Secretaries Russlynn Ali and Catherine Lhamon. For example, in response to a campaign in the summer of 2015 by the University of Virginia to weaken OCR’s finding of noncompliance, Assistant Secretary Lhamon noted that “[t]he university was enormously displeased with what our findings were and very much hoped we would change them . . . . We did not.”28 Additionally, when Tufts University revoked its signature on an April 2014 agreement because it disputed OCR’s determination that the school’s policies at the time were noncompliant with Title IX, OCR held firm and refused to modify its finding.29 The university later backed down and executed the agreement.30 OCR’s efforts to issue new policy guidance and to investigate schools more aggressively have increased schools’ incentives to combat hostile environments.
Unfortunately, OCR’s approach to its structural mandate is in tension with the needs of individual complainants to achieve timely resolution of their claims. As OCR acknowledges, sexual violence investigations are often complex, and its systemic investigations are exhaustive and time-consuming as a result. For each investigation, OCR examines the school’s culture, reviews previous institutional responses, interviews complainants and school officials, and analyzes existing policies and procedures.31 In its investigation of Tufts University—which mirrors investigations at other institutions32—OCR conducted interviews with the complainant, senior administrators, and members of the faculty; obtained copies of documents from the complainant and the institution itself to shed light on how the complainant’s report was processed (as well as how the school handled eight previous reports of violence); and reviewed both the school’s current policies on sexual misconduct and its policies in effect at the time of the alleged discrimination.33 And to add an additional layer of complexity, if OCR identifies noncompliance, Title IX requires that OCR seek voluntary compliance from a school before it initiates other enforcement actions.34
These complexities, combined with a lack of resources,35 delay justice for complainants, as OCR has decided to address discrimination faced by individuals (such as a denial of interim measures)36 only after conducting systemic investigations.37 This means that remedies for discrimination faced by individuals do not come until after OCR has reached a resolution agreement with the institution, making the availability of individual relief dependent on how quickly the investigation of institution-wide systemic discrimination is resolved (and often on how cooperative the individual’s school is). As a result, it may be the case that survivors at the most recalcitrant schools are perversely left without redress for the longest periods. For example, while OCR found that Tufts had “allowed for a continuation of a hostile environment that limited and denied [the complainant] access to the educational opportunities”38 and required the school to reimburse her for “educational and other reasonable expenses,”39 this reimbursement was additionally delayed when Tufts temporarily revoked its support for the voluntary resolution agreement.40
In particular, this policy of requiring schools to compensate survivors in voluntary resolution agreements can be insufficient, as these agreements could be issued after a student is no longer on campus. In these cases, some students will have already been forced off campus or their academic performance will have declined due to institutional and peer violence by the time an agreement is issued.41
Arguably as a result of the decision to resolve discrimination faced by individuals only at the end of the overarching investigation and the complex nature of these cases, complainants have been forced to wait for relief for periods far beyond OCR’s stated goal of 180 days (see infra Table 2);42 this is the case even when OCR’s caseload of sexual violence complaints has been relatively low. For example, while OCR received only thirty-five sexual violence complaints in FY 2010,43 including the Tufts complaint, the complainant at Tufts had to wait over 1,300 days44 for OCR to investigate, issue a finding of noncompliance, and negotiate an agreement with Tufts, before the student could receive reimbursement of expenses incurred due to the school’s noncompliance.45 These delays are not unique—in one case, an investigation lasted over 2,100 days.46 At the postsecondary level, at least three investigations (University of Massachusetts-Amherst, Wittenberg University, and Arizona State University) have stretched on for longer than three years.47
Table 2. 48
average duration (in days) of sexual violence investigations that result in substantive closure
Furthermore, OCR’s current enforcement strategy has the effect of penalizing survivors of gender-based violence, as they experience longer delays than victims of other forms of discrimination. As reported by OCR, its gender-based violence investigations take fifty percent longer (325 days) on average than investigations into harassment (216 days) and Title VI school discipline cases (217 days).49 While these delays may be due to the complexity of gender-based violence cases,50 the end result is that survivors are denied access to timely relief in a way that other victims of discrimination are not. This result cannot be explained solely by differences in complexity, since OCR has also labeled other types of complaints, such as school discipline cases, as “complex and . . . high profile.”51 The answer to this issue is not for OCR to privilege some classes of victims over others; rather, OCR should take affirmative steps to reduce delays in processing gender-based violence cases to bring the outcomes of these cases up to the baseline for other discrimination claims.
II. striking a better balance between combating structural discrimination and ensuring educational access for complainants
OCR’s decision to resolve violations of its guidance that affect individual complainants only at the end of long-running systemic investigations is unbalanced. This decision also demonstrates insufficient attention to one of Title IX’s statutory purposes: providing individuals with “effective protection.”52 This Part will first establish that OCR has a legal mandate to provide for effective protection for individuals (despite the availability of private enforcement). It then will argue that OCR must take affirmative steps to decrease the length of investigations and meet this legal mandate through establishing consistent guidelines for communicating with complainants; setting a maximum threshold of two years after the case is opened for investigating and resolving complaints; creating a corps of specialized investigators to handle cases; and acting, when possible, to protect an individual’s ability to access education while investigations are ongoing.
Although some scholars view the private right of action as an important, albeit flawed, tool to enforce an individual’s Title IX rights,53 OCR also has an obligation, as the administrative entity responsible for enforcing Title IX,54 to provide “effective protection.”55 This duty arises from the legislative history of Title VI; in Cannon, the Supreme Court explained that “the drafters of Title IX explicitly assumed that it would be interpreted and enforced in the same manner as Title VI,” and the Court referenced comments from a member of Congress who asserted that Title VI addresses individual rights:
This bill [Title VI] is designed for the protection of individuals. When an individual is wronged he can invoke the protection to himself, but if he is unable to do so because of economic distress or because of fear then the Federal Government is authorized to invoke that individual protection for that individual . . . .56
Furthermore, when the Court reasoned in Cannon that Title IX provided for a private right of action, it did so, in part, because the existence of a private remedy would “assist in achieving the statutory purpose of providing individual citizens effective protection against discriminatory practices.”57 Therefore, while the private remedy is an important tool to provide relief to individuals, providing “effective protection” must be a goal that cuts across both public and private mechanisms of Title IX enforcement.
In addition, as subsequent Supreme Court rulings have diminished the ability of individuals to employ the private right of action, it is even more important that OCR act to protect survivors’ rights. In Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education,the Court ruled that schools were not liable for damages in sexual harassment cases unless they displayed “deliberate indifference.”58 As Catharine MacKinnon argues in the pages of this Issue, these decisions have undermined efforts to hold schools accountable through the private right of action because schools can do very little and still satisfy the standard.59 As such, it is possible that this state of affairs further encourages individuals to seek relief from OCR, elevating the need for OCR to provide “effective protection” and decrease the time it takes to investigate claims.
In order to achieve “effective protection” and to increase compliance with its voluntary resolution agreements generally, OCR requires a more nimble enforcement tool than the current mechanism provided for under Title IX, which only empowers OCR to initiate proceedings to remove federal funds from a school if it cannot secure voluntary compliance.60 At present, this all-or-nothing defunding mechanism has never been used.61 Moreover, if implemented, it would be harmful to students who are not complicit in the school’s failures to conform to Title IX and who benefit from federal funding.62 Finally, as other scholars have observed, the likelihood that OCR would subject a school to the ultimate penalty (particularly on behalf of one individual) is low, thereby weakening the credibility of enforcement efforts.63
Consequently, Congress should provide OCR with the authority to fine schools up to one percent of the school’s yearly operating budget.64 A sliding scale with a maximum of one percent (predicated upon OCR pursuing a voluntary resolution agreement with the school, per Title IX’s requirements)65 constitutes a substantial penalty but also acknowledges that resources vary among institutions. These fines would also assist OCR in providing for effective protection, as this authority could be applied more defensibly to cases of individualized discrimination (as opposed to the more extreme penalty of withdrawing all federal funds).66 OCR could use fines to pursue and enforce individualized voluntary resolution agreements while the overarching structural investigation is ongoing (see Section II.E for a more in-depth discussion of this point).
Ultimately, to achieve “effective protection” for survivors67—a core aim of Title IX’s antidiscrimination mandate—OCR must also reduce investigative delays.68 Although OCR aims to resolve investigations within 180 days,69 it has failed to meet this goal in a number of cases that it has resolved at the postsecondary level since FY 2009.70 Indeed, many of the cases that OCR has finished were resolved not through a thorough investigation, but rather because OCR decided that the complaint had been resolved through a compliance review that it had already conducted.71
Complainants have indicated that the delays associated with filing a complaint have made it difficult for them to focus on their education. For example, one complainant who graduated before an investigation had concluded said, “It has drawn on for a long time, and it has consumed my identity and become what I’m known for. I don’t know what’s going on or if it’s been resolved.”72 Another complainant stated, “I wish I could’ve been able to be traditionally invested in my education and that I didn’t have to think about rape all the time.”73
Delays also have the effect of denying “effective protection”74 by allowing the institution to continue its discriminatory practices while OCR investigates, which can mean that more students experience harms that may not be accounted for in the final voluntary resolution agreement if they have not joined the complaint.75 In light of this phenomenon, one complainant commented that “the longer OCR delays action, the more the community will be traumatized. We worked so hard to file this and there are still people who are going through the same shit.”76
OCR has taken positive steps on this front, but more reforms are needed to revise its procedures to reduce the ability of schools to delay relief to complainants. In 2014, OCR took a promising step when it instituted a ninety-day time limit for the negotiation of voluntary resolution agreements where it found that a school had violated Title IX.77 In another positive development, OCR modified its Case Processing Manual to indicate that, once it provides the proposed terms of a resolution agreement and suspends an investigation during negotiations, the suspension can only last up to thirty days and cannot be reset.78
To increase its ability to provide more timely relief to complainants, OCR should build on the reforms it has already undertaken and set a maximum threshold of two years after the case is opened for investigating and resolving complaints. This standard is feasible—from FY 2009 to FY 2013, the average resolution time for complaints that resulted in substantive closure at the postsecondary level was 357 days79—and it would also be a marked improvement. A two-year cap acknowledges OCR’s growing caseload, its limited resources,80 and the continued need for thorough systemic investigations. However, this cap would eliminate the extreme delays in educational access faced by some complainants. In allocating resources, OCR should prioritize longstanding cases and should shift staffing to cases approaching the two-year mark.
To achieve this two-year cap, OCR should also establish a corps of investigators who specialize in investigating gender-based violence.81 At present, OCR’s regional offices share the same organizational structure, which includes designating its investigators at its regional offices as generalists who handle cases across the various civil-rights statutes that OCR enforces.82 However, OCR has noted that sexual violence investigations “tend to be complex and may involve systemic, campus- and institution-wide issues, in addition to issues pertaining to specific students” and that it “comprehensively examines the campus culture with respect to sexual violence.”83 Specialization and the familiarity that would arise from such specialization would likely increase investigators’ speed in handling these complexities, particularly as OCR’s sexual violence investigations take fifty percent longer on average than investigations into harassment and Title VI school-discipline cases.84
To strike a better balance between individual and structural concerns, OCR should also increase its communications with complainants while investigations are ongoing. When asked, complainants generally noted that, while investigators had been generally sensitive and respectful of their concerns, contact with the agency had dwindled as the investigations progressed.85 After initial contact, one complainant described, “OCR investigators proceeded with radio silence. Now I feel as if they just collect documents for the school. I spoke with an admin who said that the OCR just exchanges documents between them and the school.”86 Another complainant stated, “I’ve had minimal interaction [with OCR], but it was much more consistent at first. I’ve gotten maybe one phone call over the last year and a half.”87 As a result of this silence, almost all of the complainants we interviewed do not know when, or even if, they will get relief.88 Moreover, because of its lack of contact with them, OCR may fail to obtain the information it needs to ensure that complainants can access interim accommodations or to resolve other forms of discrimination that affect complainants’ ability to access education.
To remedy this information gap, OCR should first designate clear timelines and procedures for communicating regularly with complainants in its Case Processing Manual. This reform will allow OCR to maintain its ability to learn about problems that occur during the investigation and to keep complainants apprised of the resolution of their cases.89 Such measures are not unprecedented in the area of civil-rights enforcement: notably, the Office for Civil Rights within the Department of Health and Human Services (HHS) instituted requirements that its staff “should keep the parties informed of the progress in evaluating and investigating a case and communicate with the parties regularly regarding the status of the case.”90 To achieve this goal, the HHS Office for Civil Rights instituted concrete timelines within its Case Resolution Manual where investigators “should strive to return the parties’ telephone calls promptly, generally by the end of the following business day” and “should acknowledge receipt of the parties’ substantive letters and e-mails within five business days and, where a response is needed, provide a response to those letters and emails in a timely manner, generally within ten business days.”91 The Department of Education should follow HHS’s lead and implement concrete procedures when communicating with complainants, such as including a status update about their case’s progress, soliciting feedback from complainants to evaluate whether interim relief measures OCR has secured are adequate, and collecting information about any retaliation and abuses complainants are experiencing from the school.
Despite OCR’s instituting clear requirements in 2014 that recipients of federal funds should provide interim measures pending the outcome of an investigation,92 our interviews with complainants underscore the fact that some are unable to fully access their education while investigations are ongoing. Persistent barriers to education underscore the need for OCR to intervene while cases are ongoing in order to vindicate the “effective protection”93 mandate of Title IX.
One form of discrimination that can occur during an investigation is retaliation for participating in a civil-rights complaint,94 particularly as some complainants “go public” and reveal their identities to the media (and to their school as a result) in order to shame the institution into complying with its obligations.95 One complainant who revealed her identity to her school through a media outlet indicated that “[g]oing so public really fostered hate and a hostile environment, and prompted retaliation from my school, which OCR has been unable to prevent. [. . .] I feel isolated and resentful.”96 In this complainant’s case, OCR did not intervene in a timely fashion to protect her, although they were on campus investigating at the time.97 This experience is not unique: another complainant who “went public” highlighted how fear of retaliation kept her from accessing her education. She stated that, in order to “transfer, almost all schools require a letter from the Dean of the previous school that was attended (basically asking for negative review). I can’t access education because I used Title IX.”98 This testimony from complainants suggests that mistreatment from schools while OCR is investigating results in a denial of “effective protection”99 from discriminatory practices.
Tufts University also provides an instructive case study in the continued discrimination complainants face while investigations are ongoing. When OCR opened its investigation into Tufts University on September 22, 2010, the complainant was enrolled at the institution and was denied access to effective interim measures in violation of Title IX’s requirements.100 The Tufts resolution letter, which details the facts of the case, noted that, before the 2010 Fall term had started, Tufts refused to remove the accused student from a seminar in which he and the complainant were enrolled.101 Consequently, the complainant missed every seminar class until she graduated in Spring 2011; she even finished school early to avoid encountering the accused student and reported to OCR that she lost fieldwork opportunities and incurred debt as a result.102 The letter also stated that the administration allowed an accused student to include details of the complainant’ssexual history during its adjudication process,103 although this practice was expressly prohibited by the university’s own procedures.104
These two examples, where the complainant was denied equal access to her program and where the accused student was able to circumvent the university’s established grievance procedures, underscore the need for OCR to adopt clear rules around consistent communication with complainants. Notably, these instances of discrimination occurred while OCR was investigating Tufts.105 However, OCR’s compliance resolution letter does not indicate that it took any steps to mitigate these harms while they were occurring; rather, the letter indicates that OCR required Tufts to provide reimbursement for the complainant at the end of the investigation.106 The letter also fails to state whether OCR became aware that the complainant was experiencing discrimination during its investigation.107 In either scenario, having clear rules around consistent communication with complainants in its Case Processing Manual could have brought this discrimination to OCR’s attention in a more timely fashion, or increased the possibility that individuals could hold OCR accountable if it knew of discrimination but refused to act.
To ensure “effective protection” for individuals,108 OCR should address discrimination that could cause harm to complainants (such as a denial of interim relief, as in the Tufts case, or retaliation) separately from the broader hostile environment if resolving the issues jointly will delay relief for the complainant. For example, if OCR determines that a complainant is being forced to attend a course with the accused student (as in the Tufts case), it could immediately negotiate a voluntary resolution agreement to resolve this issue. Later, after OCR has determined whether or not a hostile environment is present, it could negotiate a broader voluntary resolution agreement to make sure the school institutes policies that explicitly minimize the burden on the complainants when providing for interim relief.109 If a school fails to comply, OCR should initiate enforcement action against the school. This proposed shift in procedures strikes a balance between complainants’ need to access timely relief and the need for thorough investigations of complex structural issues.
Complainant interviews support this conclusion. One complainant commented, “[The process] is a deterrent because people don’t want to have the next years of their lives punctuated with this experience. People [who face] immediate threat[s] are at a huge disadvantage.”110 And another stated, “We want immediate relief on an individual and campus wide level rather than soft sanctions ten years later.”111
To be sure, it is important to consider the implications of asking OCR to act earlier in the agency’s role as a “neutral fact-finder . . . [that] does not act as an advocate for either party during the process.”112 Under the modified enforcement regime that this Feature proposes, OCR would continue to serve as an objective arbiter between the two parties. Currently, if OCR wishes to make a noncompliance determination, it prepares a letter of finding and a proposed resolution agreement; it must include information such as a statement of OCR’s legal authority, any relevant legal standards, and the facts of the case.113 If OCR pursues voluntary resolution agreements to resolve instances of individual discrimination, these agreements would remain subject to the same standards, and would thus not compromise OCR’s objectivity.
The status quo calls upon survivors to sacrifice themselves while OCR seeks meaningful systemic changes. Individuals who have already been victimized by perpetrators, and given little to no support by their schools, are called upon to file with OCR; to go public to the media, at great personal risk, when filing with OCR is insufficient; and to wait for the larger structural investigation to conclude before they may obtain relief for themselves. This system is not only unfair but also runs contrary to Title IX’s purpose of providing individuals with “effective protection.” OCR must adopt a more balanced approach to achieve this purpose and thus ensure that every student can access an education free from discrimination.