New federal guidance on univ sexual assault: Brandeis follows Biden lead on Title IX
Brandeis will shift its standard of proof for internal hearings on sexual assault to a lesser burden, a university official said Thursday evening. The change comes in response to new Title IX guidance from the U.S. Department of Education released Monday.
Brandeis will require only a “preponderance of the evidence standard” rather than its current “clear and convincing” standard in university grievance procedures on sexual assault, a decision in line with guidance from the Office for Civil Rights, Andrew Gully senior vice president for communications, wrote in an e-mail.
Under the “clear and convincing standard,” it must be “highly probable or reasonably certain that the sexual harassment or violence occurred,” but under a “preponderance of the evidence,” it must only be “more likely than not that sexual harassment or violence occurred,” according to a letter from the Office for Civil Rights.
“Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of civil rights laws, and are thus not equitable under Title IX,” Russlynn Ali, assistant secretary for civil rights, wrote in the letter Monday. “Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.”
From 2007-2009, there were three reported “forcible sex offenses” at Brandeis, according to data published in Fall 2010 from Public Safety.
Nationally, nearly one in five female and one in 20 male undergraduate college students will become a victim of a sexual assault, or attempted sexual assault, according to data from the Office for Civil Rights. Victims of sexual assault are also at greater risk for depression, post-traumatic stress disorder, alcohol and drug abuse and contemplation of suicide.
Brandeis will amend the Rights and Responsibilities handbook this summer to reflect the changes in the standards for the fall, Gully wrote, adding that the “vast majority of colleges and universities” currently also still use the “clear and convincing standard.”
The guidance reminded colleges and universities that they must conduct an internal Title IX investigation, separate from a criminal investigation, following reported or known sexual violence and harassment on campus.
“Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX,” Ali wrote. “Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation.”
Even if a victim or third party does not file a complaint, universities that learn of possible sexual harassment must order a Title IX investigation, independent of a local or state run criminal investigation, the guidance said.
Brandeis deals with alleged violations of Rights and Responsibilities through “the student conduct process independent of any ongoing criminal matter” Gully wrote.
As the administration released new guidelines, Vice President Joe Biden spoke at the University of New Hampshire on Monday, reminding both students and university administrators of their power to prevent sexual violence.
“We’re saying that under Title IX, schools have a responsibility to bring justice to the victims and change the culture on campuses that make it clear that sexual assault is simply not tolerable,” Biden said.
In the letter on Monday, The Office for Civil Rights reminded any school receiving federal funding that sexual violence is a form of sexual harassment prohibited under Title IX of the Education Amendments of 1972, and thus requires specific university regulations to prevent it.
Gully said that Brandeis has a strong prevention system in place, but welcomes the guidance to review its regulations.
“The guidance offered by the Office for Civil Rights is a reminder of the importance of protecting students from sexual harassment and providing a safe learning environment at Brandeis University,” Gully said in a statement. “We feel our policies on sexual harassment and sexual assault are strong but look forward to reviewing the new guidance. We also applaud the vice president for his ongoing efforts to raise awareness of an issue that is vitally important on every college and university campus.”
Monday’s guidance said that schools must assist victims of sexual violence who file a complaint, even if the assault did not occur on school property, or during a school-sponsored event.
“Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of off-campus conduct when evaluating whether there is a hostile event on campus,” Ali wrote in the letter.
“Every school would like to believe it’s immune from sexual violence, but the facts suggest otherwise,” Secretary of Education Arne Duncan said at UNH on Monday. “We know that if children and young people aren’t safe, they can’t learn. It’s as simple and as fundamental a priority as that.”
Brandeis advises students to report cases of sexual assault to the Department of Public Safety. Students can choose to pursue criminal charges with local law enforcement offices, choose a referral to the student conduct process or choose to fill out an anonymous report with Public Safety.
Public Safety has six officers specifically trained to handle cases of sexual assault sensitively, who know they have the power to immediately create a “no contact” order against the alleged perpetrator.
According to Rights and Responsibilities, investigations into sexual misconduct can allow for emergency suspensions.
“Due to the seriousness of sexual misconduct accusations and accompanying issues that may impact the Brandeis community, any student accused of sexual misconduct may be placed on campus restriction or emergency suspension pending the outcome of any investigation or conduct process,” according to the handbook.
The Division of Student Affairs at Brandeis notifies students about a wide range of services available both on and off campus for dealing with sexual assaults, including the Counseling and Rape Crisis Hotline, Ofﬁce of Human Resources, Psychological Counseling Center and the Boston Area Rape Crisis Center.
Students can also choose to use services through the health center, local hospital care and the chaplaincy.
Reminding schools of a 2001 guidance, the letter stated that schools could be in violation of Title IX if “students are unaware of what kind of conduct constitutes sexual harassment….”
The Rights and Responsibilities Handbook at Brandeis specifically defines sexual misconduct for students.
“Students are prohibited from engaging in sexual misconduct. Sexual contact that occurs without the explicit consent of each student involved may be considered sexual misconduct. Consent must be clearly communicated, mutual, non-coercive, and given free of force or threat of force,” the handbook states. “A student who is physically or mentally incapacitated by drugs, alcohol, or other circumstances is not capable of giving consent.”
Under Title IX, schools must let all students and employees know the name, title and contact information for a specific coordinator who oversees the university’s compliance with Title IX. The guidance advises that the coordinator should not be a member of a disciplinary board or general counsel, in an effort to avoid conflicts of interest.
At Brandeis, Athletic Director Sheryl Sousa deals with athletic related policies of Title IX and Vice President for Human Resources Scott Bemis addresses administrative issues related to Title IX, leaving no conflicts of interest, Gully wrote.
The Office for Civil Rights also suggests that universities notify students that concern about safety is always the priority.
“OCR recommends that schools inform students that the schools’ primary concern is student safety, that any other rules violations will be addressed separately from the sexual violence allegation, and that use of alcohol or drugs never makes the victim at fault for sexual violence,” Ali wrote in the letter.
Yet in addition to the administration’s efforts to remind university officials about the requirements of Title IX, Biden also said that reducing and preventing sexual assault requires a new commitment from students.
Biden described America’s response to sexual violence as a way to label “how to improve the measure of our decency as a society.”
“The decency of a nation is more determined by how we tolerate or do not tolerate the abuse of women—the abuse of anyone who finds themselves in a situation where someone physically is more powerful,” Biden said.
He urged men in the audience to become responsible citizens by recognizing that there is never any excuse or justification for sexual assault.
“When it comes to sexual abuse, it’s quite simple. No means no,” Biden said. “No means no if you’re drunk or you’re sober. No means no if you’re on bed in a dorm or on the street. No means no even if you said yes at first and you changed your mind. No means no. And it’s a crime to disregard no.”
He said that universities need to remind students that the rules against sexual assault are clear and unquestionable. “Rape is rape is rape. And the sooner universities make that clear, the sooner we’ll begin to make progress on campuses.”
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