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Sexual Harassment Violates A Student's Civil Rights

The school must end the harassment, remedy the effects on the victim and prevent it from recurring.


Jim Long, JD

One of five women students on your campus will undergo rape or attempted rape during her time in college. So will about 6% of undergraduate men. Some 5.4 million college students say that they’ve faced sexual harassment.

This is serious stuff. Compared with other students, those who’ve been sexually assaulted are much more likely to have:

  • academic problems
  • depression
  • post-traumatic stress disorder
  • alcohol abuse
  • drug abuse and
  • thoughts of suicide.

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in any educational program or activity that receives federal funds. On April 4, 2011, the U.S. Department of Education issued a 19-page “Dear Colleague Letter” (DCL) to schools that would clarify the Title IX requirements.

Jim Long, senior attorney at the Department of Education’s Office for Civil Rights (OCR), spoke at the NASPA conference in Phoenix AZ in March 2012 about the letter and Title IX. He’s based in Denver CO, one of 12 OCR offices around the nation to enforce civil right laws and provide assistance and information.

Harassment and assault

Sexual violence is the most extreme form of sexual harassment, which in turn can be a form of sex discrimination forbidden by Title IX. Behavior is discriminatory sexual harassment if it meets three tests:

  • It is sexual in nature. This depends on the specific facts of the case. Sexual conduct includes but is not limited to criminal behavior such as rape, sexual assault and sexually motivated stalking. In 2009 colleges reported nearly 3,300 rapes on campus; many more went unreported.

Sexual behavior also includes unwelcome sexual advances, requests for sexual favors or sexual suggestive touching, gestures, facial expressions, sounds or comments. It includes comments about a person’s body, sexual behavior or sexual attractiveness and the display of sexually suggestive objects. Whether the action is sexual doesn’t depend on the sex of the harasser or victim.

“Harassment by someone of the same sex is still harassment,” Long said. In 1998 the U.S. Supreme Court determined that sex-related harassment of an oil rig worker by his male co-workers counted as sexual harassment under the law. While Title IX does not prohibit discrimination on the basis of sexual orientation, lesbian or gay students have the same legal protection from harassment as other students.

  • It is unwelcome. Some people mistakenly think assault is rape only if the victim protests or fights back. Not so! The student might be too intimidated to protest. She might have been knocked out by drugs or alcohol, including having the date-rape drug slipped into her drink.

  • It denies or limits a student’s participation in activities. Suppose a student who’s been attacked is afraid to go out at night, like to the library to study. “Is the conduct preventing students from learning?” he asked. If so, it’s civil rights discrimination under Title IX.

To decide whether conduct denies or limits benefits or services, ask: Is it serious enough to keep students from taking advantage of what’s available on campus? Is it persistent, severe or pervasive? What is the effect on the victim? A single rape can frighten a student for life, where a single flirtatious comment might not.

Constitutionally protected free speech is different from sexual comments designed to make women uncomfortable. Classroom debates and discussions outside the classroom are an important part of higher education. The purpose of Title IX is to protect students from discrimination, not to regulate the content of speech.

Another source of confusion is the relation between criminal law, a student code of conduct and civil rights requirements under Title IX. Campus administrators should establish good working relations with local police long before a case arises.

Rape, assault and stalking are criminal actions that can lead to arrest (by local police, not campus police) and trial. That doesn’t change the school’s responsibility to respond to all reports of sexual discrimination and harassment. Student codes, employee handbooks and so forth must provide policies and procedures against harassment on campus. Title IX is the law that defines this civil rights requirement.

Your school’s responsibilities

He said the axiom on rules for schools has three parts:

  1. There are rules.
  2. Rules are your friends.
  3. Follow the rules.

Universities have responsibility for any harassment on campus that is serious enough to limit the student’s ability to participate in or benefit from the school’s programs. If someone on faculty or staff harasses a student sexually in the course of carrying out their job, the university has clear responsibilities once it knows of the harassment. The school must end the harassment, remedy the effects on the victim and prevent it from recurring.

Student-to-student harassment is more complicated. Acquaintance rape accounts for 80% to 90% of campus rapes. Widespread conventional “wisdom” says that if you knew your attacker, it wasn’t really rape. You’ve heard the excuses: “Boys will be boys” or “Both of them were drunk.”

Alcohol is involved in 90% of campus sexual assaults, Young said. “Alcohol is a weapon of choice.” Even if many of us recall doing stupid things under the influence in our youth, liquor is no excuse. Brown University’s sexual misconduct policy has it right: “A charged person’s use of any drug, including alcohol, judged to be related to an offense will be considered an exacerbating rather than mitigating circumstance.”

Your school’s responsibility for third-party (non- employee) harassment kicks in as soon as it learns about it. Upon notification, the college must take prompt and effective action to stop the harassment and remedy its effects.

It must also prevent retaliation by an individual or group, which can magnify the effects of the assault. A freshman was raped by a football player, whose teammates then proceeded to harass her by Twitter and other social media. She killed herself.

Fear of retaliation is one reason why 60% of sexual assaults are not reported. Another reason is the fear of not being believed; lacking physical evidence, many cases are he-said-she-said. Or the victim feels responsible, too embarrassed and humiliated to complain. Students have a year to report offenses.

Two-thirds of rapists are repeat offenders, Young said. That makes it all the more important to make reporting as safe as possible. Getting a rapist out of circulation protects other women on campus besides the one who reported it.

Investigating a report

Once the college hears about an incident, it can’t ignore the situation. Even if the alleged harassment was reported by someone besides the victim, the school is obliged to respond. What constitutes a reasonable response can vary.

The investigator should have no involvement with the situation and no reason to favor either the accuser or the accused. Rape is real: 13% of men in the U.S. Navy selfreported being rapists. False reports are only 2% to 8% of the total. The frequency of repeat offenses simplifies investigation. Check his high school record; ask other girls he’s gone out with. Chances are the guy who does it once has done it before—and will do it again if he gets a chance.

Separation. Interim measures during the investigation must be prompt and equitable to both parties. The parties should be separated immediately, in both classes and dorms.

Confidentiality. Names and allegations should be kept confidential to the extent possible. If the student asks that her name not be used, the school should honor this as far as possible, consistent with its responsibility to respond to the harassment and prevent harassment of other students. The accused does have the right to know his accuser.

Standard of evidence. A criminal investigation by police may occur side by side with yours, but don’t confuse the two. Your campus investigation does not threaten the defendant with jail time, so “beyond a reasonable doubt” does not apply. Yours is a civil process; the standard of evidence is “preponderance of the evidence,” or 51%. Is it more likely that it happened than that it did not happen?

Impartial treatment. Both parties must be treated equally and be allowed to provide witnesses and evidence, and have a lawyer. There must be no conflicts of interest. No investigator can decide the punishment and/or be an advisor to the disciplinary board. Nobody involved in the decision can have a personal involvement in the case.

Appeals. Both sides are entitled to know the findings in writing. Both sides must be allowed to appeal the school’s decision within a reasonably prompt time frame.

Remedies and prevention

Title IX sets several procedural requirements. The university must adopt and publish a policy against sex discrimination. It must adopt grievance procedures providing for prompt and equitable resolution of any sex discrimination cases. And it must designate at least one staff member to coordinate and carry out its responsibilities under Title IX.

Of course you’d rather not have harassment in the first place. When it does occur, part of your obligation is to prevent it from happening again. Preventive measures, besides personal and/or academic remedies and counseling for the victim and counseling/ disciplining the harasser, include:

  • Developing new policies or procedures
  • Creating programs to address harassment
  • Developing a system to monitor future incidents.
  • Holding periodic training for students, faculty staff.

Young suggests hiring someone to do this who understands the psyche of victim and harasser. Training should include the nature of harassment as distinct from free speech, the damage harassment can do and where students can find help for themselves or their friends.

To oppose harassment systemically, require employees to report any harassment they see or hear about. Encourage students to notify the school of any harassment and do periodic surveys to assess the school climate.

Why does it matter to recognize that sexual harassment is a civil rights issue and not just a violation of the student code? Action against the offender for violating the code gives no rights to the victim. And it allows the school to blame the perpetrator while avoiding its collective responsibility.

As a civil rights matter, we all have a role to play. We can bring Greek life, athletics, counseling, residence life and the Title IX coordinator together to train students and limit alcohol use.

We can teach bystander intervention techniques and tell men that “only men can prevent rape.” We can change the atmosphere on campus to make college safer for women students.


 Grievance Procedures

Title IX requires colleges to have grievance procedures for prompt and equitable resolution of any sex discrimination cases. What’s prompt and equitable? The procedures should:

  • Inform students and employees about the procedures and where to file a complaint.
  • Apply to harassment by employees, students and others.
  • Provide for adequate, reliable and impartial investigation, including opportunities for both sides to present witnesses and evidence.
  • Have prompt timeframes for major stages of the process.
  • Provide written notice of the outcome to both parties.
  • Provide assurance that the school will act to prevent further harassment and to correct its effects if appropriate.

Contact
Jim Long at jim.long@ed.gov


Cook, Sarah Gibbard. (2012, June). Sexual Harassment Violates A Student’s Civil Rights. Women in Higher Education, 21(6), 15-16.

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