Warning: This blog post discusses sexual violence and assault.
By Iris Zhang
Iris Zhang is a rising junior at University of Pennsylvania.
The statistic that 1 in 5 college-aged women has experienced rape and sexual assault is frustrating; and we’ve heard it over and over.  What’s even more frustrating is that 40% of these victims will never have the chance to seek justice – of every 100 rapes, 40 get reported to the police, 10 will lead to an arrest, 8 will get prosecuted, and only 3 will see the rapist serving time. 
The criminal justice system is ill-equipped to handle sexual assault, but universities are arguably even worse, with campus sexual assault slowly beginning to come under the nationwide spotlight. Just this past month, the New York Times has published numerous articles on the issue:  the Times picked up news around the country about students rising up against school administrators for mishandling allegations of rape.  In response, the Obama administration spearheaded a White House Task Force to oversee various enforcement actions undertaken by government legal agencies against offending schools. 
One of the ways to hold universities responsible for mishandling these delicate situations is bringing violation of Title IX and Clery Act claims to the Department of Education, which oversees these statutes. As of August 13, 2014, the Office for Civil Rights has announced a list of 76 colleges on which there are pending Title IX Sexual Violence investigations. 
Title IX of the Education Amendment Act was passed in 1972 with the intention of encouraging equal representation in education. In the same way that Title VI of the Civil Rights Act prohibits discriminatory conduct in all “programs and activities receiving federal assistance” , Title IX prohibits discriminatory conduct in any “educational programs and activities receiving federal assistance”.  Title IX covers ten key areas, ranging from athletics to sexual harassment. The majority of people are familiar with Title IX in the context of encouraging female representation in athletics, but the protection against sexual harassment as encompassed by Title IX is also critical for ensuring a safe and secure environment in which women can pursue education. 
The legal theory behind (the mishandling of) sexual assault on campus as a Title IX violation lies in the fact that sexual assault of women is a form of sex discrimination, the perpetration of which creates a hostile and unwelcoming environment that poses considerable barriers to women in education. This was the logic behind the landmark Alexander v. Yale  case that featured for the first time plaintiffs suing a party for sexual harassment under Title IX.  The claim that sexual harassment was also an issue of sex discrimination transformed campus sexual harassment and assault into a civil rights issue.
In response to the frequency of sexual assault on campus, the Department of Education Office for Civil Rights (OCR) circulated a letter to schools across the nation stipulating that schools, most of which receive federal assistance in some way, who fail to address allegations of campus sexual assault can be found responsible for Title IX violations.  Schools are obligated under Title IX to respond to sexual harassment and sexual violence by ensuring the victims are free from a hostile environment that would interfere with the victims’ ability to take full part in the school’s educational experience. A long list of procedural details includes the hiring of an experienced Title IX coordinator, fair and equitable inquiry (with the presence of trained personnel) independent of law enforcement investigation, and appropriate remedies to aid the victims’ success in completing their education. Among procedural details stands the most basic and fundamental of all the requirements: the obligation of schools to treat allegations of sexual violence seriously and to take all appropriate measures to aid the victim in preventing the incident from overtaking their education experience
Universities have shown time and time again that they are unable to meet this legal obligation. A recent deluge of high-profile stories has documented the failure of universities to properly discipline the perpetrator, to adopt measures to separate the perpetrator from the victim to protect the victim from reliving crippling trauma, and to aid the victim from getting back on track with their schoolwork. This failure perpetrates sex discrimination and hinders women from accessing education at the same level as their male peers. Such was the legal argument used by a group of 16 students who sued Yale University in 2011 for their failure in the handling of sexual assault causes.  The same logic can be used in any of the stories that have been circulating in the press, be it Hobart and William Smith’s failure,  or Florida State University,  or Occidental College.  This is the reason for OCR’s sweeping effort to investigate universities for Title IX inadequacies, and some strides have been made in the right direction.
OCR settled with Yale University by mandating that, among other things, the university must have a clearer grievance procedure and make the Title IX coordinator’s information widely accessible. Similar settlements were announced with Tufts University, Eastern Michigan University, and Notre Dame University, detailing that these schools’ responses to sexual harassment and assault allegations must comply with the procedures outlined in Title IX. With the opening of Title IX claims as a channel for aggrieved students to fight back against administration incompetence, some student groups are taking matters into their own hands. A group of 23 Columbia University students filed a Title IX complaint against the university for failing to appropriately remedy the hostile environment created by incidences of sexual assault (in an interesting turn of events, how a male student accused of sexual assault is alleging sex discrimination against him as a male student). 
The Clery Act is also often invoked in the prosecution of these cases, since it governs how schools should report incidents of sexual violence. Enacted in 1990, the Jeanne Clery Act requires universities receiving federal funding to annually report all incidents of crime on campus, the universities’ sexual assault awareness and prevention programs, policies and procedures regarding sexual assault (such as informing students of the importance of preserving evidence and criminal justice options), and consequences, under subsection F part 8 of 20 U.S. Code § 1092.  These requirements relevant to sexual assault contribute to an overlap between the Clery Act and Title IX, which is why these claims almost always appear in conjunction in complaints. 
Schools may be under-qualified to handle matters more relevant to law enforcement, but there is always more prevention work to be done. Apart from clarifying legal obligations, the OCR letter more importantly stresses the importance of having a robust education and prevention program.  In all of the settlements mentioned, the implementation of an education and prevention program is stressed. Just as employers are expected to conduct anti-harassment training for all employees under Title VII of the CRA as part of their responsibility to ensure prevention of these incidents, schools should be expected to conduct sexual assault prevention training and education programs. 
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 see 
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Photo Credit: Flickr user cathredfern