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School Administrators 

College administrators expressed deep reservations about the 2011 Dear College Letter policies and their implementation on campuses. These concerns include:

  • Limited capability of universities to assume functions traditionally handled by law enforcement agencies
  • Unfairness to the wrongfully accused
  • Financial impact
  • Liability exposure

LIMITED INSTITUTIONAL CAPABILITY

A Chronicle of Higher Education report revealed that many members of the National Association of College and University Attorneys were experiencing frustration over the “increasingly complex rules that sometimes go beyond their capacity.” The article concluded, “Beyond the issues of meeting the expanded federal requirements, college lawyers are asking if it’s appropriate, or even practical, for academic institutions to take on the role normally played by law enforcement agencies.”

The CHE article highlighted the concerns of Leslie Gomez, a partner with Pepper Hamilton and former Philadelphia special victim prosecutor. Gomez pointed out that law enforcement agencies have dedicated investigators, subpoena power, ability to analyze forensic evidence, and can decline prosecution without repercussions. Conversely, universities lack all these tools yet are mandated to review all complaints.

John McCardell, Vice Chancellor of the University of the South at Sewanee, Tennessee, has reflected on the irony of the OCR’s Dear Colleague Letter that has “imposed on entities ill-trained or equipped for the task, a quasi-judicial role, with the implication that ‘justice,’ however defined, can be satisfactorily rendered through processes that cannot possibly replicate a genuine legal proceeding.” (John McCardle, Threat of Litigation as a Constraint, Personal communication, 2017)

One of the strongest critics of the OCR-mandated regime is Janet Napolitano, president of the University of California system. In a lengthy analysis of her university’s experience with the OCR’s enforcement of the Dear Colleague Letter, she noted: “OCR investigations often take years to complete, leaving institutions under a cloud of suspicion and in limbo regarding the legal sufficiency of their policies and practices.”

One student affairs administrator characterized sexual assault cases as “enormously complex, full of truths, lies, reversals, angry parents, hungry lawyers and empowered supporters.” Evidencing clear frustration, the administrator announced, “All students are traumatized to some degree or another. Families are devastated. And the professionals who must coordinate this process are expected to operate with constraints on our judgment and strategies imposed by a group of people who don’t understand what we deal with every day.”

UNFAIRNESS TO THE WRONGFULLY ACCUSED

One student affairs employee claimed campus proceedings lack fundamental fairness:

A Title IX investigation is anything but equitable. A complainant is hand-held throughout the process — called a “victim” or “survivor” from the get-go, given on- and off-campus resources, academic accommodations, counseling, advocacy, etc.

On the other hand, the accused student has everything at stake from loss of educational opportunity, ruined reputation, compromised future, and sometimes criminal charges, and is in dire need of help. But that student does not have an advocacy center on campus, and does not receive any information about resources or academic accommodations. And the consequences, of course, are not the same. There are no sanctions for a wrongful accusation. (Communication with anonymous student affairs employee. April 2, 2017)

SEE: 40-50% of Campus Sexual Assault Allegations Are Unfounded, Revealing Need for Strong Protections of the Innocent

FINANCIAL IMPACT

As a result of the myriad of OCR sexual violence requirements, colleges are spending millions of dollars for a growing cadre of Title IX workers including lawyers, investigators, case workers, survivor advocates, peer counselors, workshop leaders, and consultants. At the University of California, Berkeley, Title IX spending has increased at least $2 million since 2013. Nearly 30 faculty and staff work in support of Title IX at Yale, while Harvard University employs 50 Title IX coordinators across its 13 schools.

The federal Campus SaVE Act mandated additional reporting requirements and recommended that each school hire a Clery Compliance officer. Compliance with these policies is projected to cost the University of North Carolina system approximately $1.52 million. UNC has created six new full-time positions solely for Title IX compliance, consisting of investigators, coordinators, and survivor advocates, which will cost the university upwards of $479,000 per year.

Reflecting on the aftermath of three burdensome investigations conducted within a period of two years, University of California president Janet Napolitano rued the fact that “Much of the time and effort looking backwards at years of data and information is time and effort lost to serving the ongoing needs of student survivors.”

LIABILITY EXPOSURE

United Educators (UE) insures about 1,400 schools across the nation. The company periodically releases reports on its sexual assault-related claims.

A 2015 United Educators’ report analyzed 305 claims reported from 104 universities during the period 2011-2013. The document revealed that 68% of the claims were filed by identified sexual assault victims, and the remaining 32% by accused students. The claims arose from:

  • Demand letter to the university: 44%
  • Office for Civil Rights investigation: 28%
  • Lawsuits:
    • By accused students: 17%
    • By alleged victim: 11%

In 2017, United Educators issued two reports:

  • The first report focused on losses arising from litigation by complainants: “[I]n a recent five-year period, UE received notice of approximately 1,000 incidents in which a student was allegedly a victim of campus sexual assault…some claims resulted in significant loses averaging nearly $350,000 each, with a few resulting in losses exceeding $1 million.”
  • In its second report, Review of Student-Perpetrator Sexual Assault Claims with Losses, UE acknowledged that “losses in [alleged] perpetrator claims were driven by defense costs, which accounted for 71 percent of losses.” The average defense costs per claim were reported to be $132,488.

A 2018 article in the Times Higher Education concluded that, “Universities in the US are dealing with an unprecedented number of sexual violence complaints and greater scrutiny of the legal processes that follow.”

SEE:

CONCLUSION

Reflecting on the moral panic that enveloped colleges and universities, one former Dean of Students commented,

“Eventually, I found myself thinking of a new variation on my title. I had become, I realized, the Dean of Sexual Assault. Every case became an all-out crisis, and the cases were coming more frequently as awareness grew. Some cases were clearly appropriate uses of the process, while others were not, but it didn’t matter. I had little time to do the other parts of a job that has many other parts. I was consumed by situations involving two or three or four students and had hardly any time left for the rest of those on my campus who needed and deserved my attention.”

University of the South Vice Chancellor John McCardell concludes:

“One might argue that setting forth such elaborate procedures for internal resolution of complaints might in fact reduce the constraint imposed by formal litigation. One would be wrong. The cost in time and effort required to comply with meeting these exacting standards in the case of every complaint brought forward is a genuine constraint. Nor does the search for internal resolution reduce either the threat or the eventual reality of litigation. Indeed, it often heightens both: the possibility that some internal procedural error might occur or some perceived unfairness in the conduct or tone of a hearing (which is of course recorded in its entirety) might be discerned at once creates the mistaken impression that what is taking place is in some sense a legal proceeding.” (Personal communication with SAVE, 2017)

SEE: Lee Burdette Williams: A Former Dean of Students Rethinks Sexual Assault Response