Highlights from the Senate Report on School Sexual Assault

image credit: U.S. Senate and the Office of Sen. Claire McCaskill

Recently, we published several blog posts relating to university responses to sexual violence , with specific attention to two recent stories. In our post about Jameis Winston, we referenced a recent congressional report which found that many educational institutions in the United States are “failing to comply with the law and best practices in how they handle sexual violence among students.”

In order to shed more light on the epidemic of institutional failure to address, prevent, and redress sexual assault on campus, we felt that it would be helpful to discuss a few other findings contained in this Senate Report and provide a brief overview of Title IX.

All public and private institutions receiving federal funds must comply with Title IX of the Education Amendments of 1972. Schools that violate the law may lose federal funding or be referred to the U.S. Department of Justice for further action.

Title IX prohibits discrimination on the basis of sex, which encompasses sexual harassment and/or sexual violence (including attempted or completed rape or sexual assault, stalking, voyeurism, exhibitionism, verbal or physical sexuality-based threats or abuse, and intimate partner violence). Schools must be proactive in ensuring that their campuses are free of sexual violence (or other sex discrimination). This means that if a school knows or reasonably should know of sexual violence relating to its students, it must take immediate steps to remedy any harm and prevent its recurrence.

Further, schools must have an established policies and procedures for handling complaints of sexual violence, and must perform a prompt investigation which results in some disciplinary measure for the person accused if the evidence is sufficient to meet the applicable burden of proof. This obligation to investigate is independent of any other investigation (i.e. law enforcement) that may cover the incident.

Under Title IX, institutions that receive claims of sexual assault must not only conduct an investigation to determine whether an assault occurred, but after such investigation, conduct an adjudication (or hearing) to reach a final determination. Whatever process is used must afford the complainant (i.e. the victim) “a prompt and equitable resolution.” Despite this requirement, analysis of data from the U.S. Department of Justice appears to indicate that only 13% to 30% (at most) of students found responsible for sexual assault were expelled.

As of October 2014, eighty-five (85) higher education institutions were under investigation by the Department of Education’s Office of Civil Rights (OCR) due to concerns about how those schools were handling sexual violence on campus (i.e. whether they are in violation of Title IX). The education department began publicly disclosing its OCR investigations in May of 2014 (when the total active investigations summed to fifty-five (55)). This provides the backdrop for the issuance of the Senate Report on school’s Title IX compliance.

The Congressional Report, Sexual Violence on Campus: How Too Many Institutions of Higher Education are Failing to Protect Students, was conducted by the United States Subcommittee on Financial and Contractual Oversight, and was led by subcommittee chair Claire McCaskill (D-Mo). The report was published on July 9, 2014. Its findings were based on a survey of 440 four-year higher education schools, including a national sample and separate samples of the nation’s largest public and private institutions.

The report contained many key findings. Some of these findings – and the data supporting them – are summarized below.

• Schools Do Not Understand the Scope of the Problem
  • According to the U.S. Department of Justice (DOJ), less than 5% of rape victims attending college report their attack to law enforcement.
  • Only 16% of the institutions surveyed reported administering anonymous “climate surveys” to students (to monitor behaviors that constitute or are associated with sexual assault).
• Schools Fail to Encourage Reporting of Sexual Violence
  • Only 51% of institutions surveyed had a 24-hour hotline for people to report incidents of sexual assault.
  • Only 44% of institutions provided the option to report sexual assaults online.
  • 8% of universities do not allow confidential reporting of sexual assault.
• Schools Fail to Provide Sexual Assault Response Training for Faculty and Staff
  • One in five (20%) universities failed to provide sexual assault response training for faculty and staff.
• Institutions Fail to Provide Adequate Sexual Assault Training for Students
  • Approximately one in three (31%) schools failed to provide any sexual assault training for students (including educating students about what constitutes sexual assault).
    • 77% of institutions with more than 10,000 students provided at least some training.
    • 53% of institutions with fewer than 1,000 students provided no training.
    • 72% of private, for-profit schools provided no training.
  • Schools also failed to provide targeted training for certain groups of students among whom sexual violence happens with greater frequency than the general population of students.
    • For example, only 22% of schools provided sexual violence training targeted at the Greek system (i.e. fraternities) and only 37% provided training targeted at student athletes.
  • Institutional Failure to Investigate Sexual Assault Reports
    • Colleges and universities receiving federal funding must comply with the mandates of Title IX. This includes the obligation to conduct an investigation if the school knows or reasonably should know about sexual violence.
      • However, more than 40% of the 440 colleges surveyed have not conducted a single investigation in the past five years.
      • More than 81% of private for-profit schools and 77% of institutions with fewer than 1,000 students have not conducted any investigations.
    • Under Title IX, universities must report data on campus sexual assaults to the Department of Education. When compared with this data, 9% of schools of the total number of schools surveyed conducted fewer investigations of sexual assault in the past five years than they reported to the Department of Education.
      • More than 20% of the nation’s largest private institutions conducted fewer investigations than the number of incidents they reported to the U.S. Department of Education.
        • Some colleges reported up to seven times more incidents of sexual violence than they had investigated.
      • Lack of Trained, Coordinated Law Enforcement
        • Law enforcement at 30% of institutions surveyed did not receive any training on how to respond to reports of sexual violence.
        • More than 70% of institutions surveyed do not have protocols in place regarding how the university should work with local police and law enforcement in responding to cases of sexual violence.
      • Schools Fail to Provide Adequate Services to Sexual Assault Survivors
        • Most schools surveyed (85%) reported using a Sexual Assault Response Team (SART) to respond to sexual violence.
          • However, many schools do not include representatives of services that could help the survivor.
            • 75% of schools with SART programs did not incorporate the local prosecutor’s office.
            • Although 90% of institutions state that sexual assault survivors have access to community victim assistance or advocacy programs, only 51% incorporated those services into their SART approach.
            • Only 15% of institutions had a Sexual Assault Nurse Examiner (SANE) available on campus.
          • Moreover, 48% of schools with SART programs had no written protocol for how its team should coordinate its response to sexual violence.
        • Institutional Adjudication Processes Fail to Comply with Requirements and Best Practices
          • Schools are required to conduct an investigation and then adjudicate (and issue a final determination) on the sexual assault complaint. However, many schools use adjudication processes that do not comply with best practices.
          • Approximately 13% of institutions fail to make information about the adjudication process available to students.
          • More than 20% of schools surveyed gave the athletic department oversight of sexual violence cases involving student athletes.
            • Approximately 20% of the largest public schools and 15% of the largest private schools allow their athletic departments to oversee cases involving student athletes.
          • Institutions are failing to acknowledge conflicts of interest and other relevant concerns.
            • More than 40% of the nation’s largest public schools allow students to participate/help adjudicate sexual assault cases, against recommendation by experts.
            • More than 30% of schools do not provide adequate training for the individuals who adjudicate sexual assault claims (i.e. training on what constitutes consent, what constitutes sexual assault, how trauma can impact a survivor’s memory and demeanor, etc.).
          • Institutions frequently afford alleged perpetrators more due process rights than they do to survivors.
            • 82% of schools allow alleged perpetrators to challenge hearing members regarding impartiality or conflicts of interests, while only 78% provide the same right to survivors.
            • 91% of institutions allow the alleged perpetrator the right to appeal the hearing determination, but only 85% provide the victim with the same right.
            • Of the 50 largest public institutions surveyed, 86% allowed alleged perpetrators to question and call witnesses, but only 79% provided the same right to the victim.
          • Many schools fail to use the appropriate standard of proof for their administrative adjudications of sexual assault claims: the appropriate standard is “preponderance of the evidence,” but only 85% of the institutions surveyed used this standard. The remaining 15% used a higher standard.
            • 63% of institutions surveyed permit the use of hearsay evidence in adjudication proceedings and 94% give the alleged perpetrator the presumption of innocence.
            • However, 42% prohibit application of the state’s rape shield law during the same proceedings.
          • Institutions are failing to use effective penalties to hold perpetrators accountable and ensure that their campuses are safe.
            • 19% of schools in the National sample reported that they do not impose orders that would require the perpetrator to avoid contact with the survivor of the assault.

Hopefully, this report will help Universities change their policies and procedures to better protect students and uphold the mandate of Title IX. Regardless, however, we will nonetheless continue to advocate for victims and ensure their health and safety, every step of the way.

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