The Department of Education’s recently clarified Title IX regulations have prompted universities to review their sexual misconduct policies even beyond those outlined in the new guidelines.
The Department of Education’s Office for Civil Rights — the federal agency that issued the recommendations in a “Dear Colleague” letter last April — intended for the recommendations to target “student-on-student” sexual harassment issues, according to an OCR spokesman. But four higher education law experts said they thought the letter encouraged a broader review of sexual grievance procedures that did not necessarily address only student-specific interactions.
Deputy Provost Stephanie Spangler, who began overseeing the University’s Title IX compliance in November, said in a Wednesday email that administrators at Yale recognized that the letter focused on “student-on-student” sexual violence but reviewed its recommendations as part of a larger survey of Yale’s sexual grievance procedures.
“The University had initiated a review of its means for addressing complaints of sexual misconduct a number of months before the issuance of the Dear Colleague Letter,” she said. “One of the goals of that review was to evaluate and revise complaint procedures to assure fairness, effectiveness, and consistency of the procedures as they are applied to various constituencies.”
Spangler added that the creation of the University-Wide Committee on Sexual Misconduct (UWC) last July indicates the University’s common procedures for cases involving students and those involving faculty members. The UWC hears all complaints except those against staff members filed by faculty or staff members.
Still, Peter Lake, director for the Center for Excellence in Higher Education Law and Policy at Stetson University, said some schools may have “misinterpreted and overinterpreted” the letter, while others made the “very deliberate choice” to address sexual misconduct issues among staff members in conjunction with student affairs.
The OCR spokesman said in a Wednesday email that though the letter did not speak “expressly” to institutions regarding sexual harassment among employees, it recommended a “number of best practices” that OCR thought would help institutions better prevent and respond to sexual violence overall.
“Every institution handles its employment policies and procedures differently, and institutions are free to incorporate these best practices in the employment context, if they so choose,” he said.
He added that because the letter represents the first time the Department of Education has issued guidance specific to sexual violence, it was “not unexpected that the letter prompted schools to revisit their policies.” Still, he said the Equal Employment Opportunity Commission generally handles employment-related complaints, although Title IX does protect both employees and students from discrimination.
David Armstrong, vice president of development and general counsel at Notre Dame College of Ohio, said last month that he thought the letter not only applied to “student-on-student” issues, but also covered other cases of sexual misconduct on campuses. He added that he thinks OCR could make its expectations regarding Title IX issues more clear in general.
California-based Title IX lawyer Dan Siegel said it “follows logically” that university administrators would enhance sexual grievance procedures for staff members after receiving recommendations for improving student resources, especially since a university has a greater obligation to regulate the behavior of its staff than that of its students.
“Universities have a greater level of responsibility, at least traditionally, for controlling the actions of their employees,” Siegel said. “So if the Office for Civil Rights is saying, ‘In our opinion, universities need to raise the bar in terms of dealing with student-on-student sexual harassment’ … then I think [universities] would be smart to say [they] need to do at least as much as [they’re] doing about student behavior to control staff or faculty behavior.”
Erin Buzuvis, a professor at Western New England University Law School and founder of a Title IX blog, said the letter is not a “mandatory source of law in a technically binding sense” but instead offers advice on interpreting existing Title IX regulations. As a result, she said, the letter serves as a “little warning,” allowing universities some freedom in deciding how to implement the recommendations.
The OCR’s Title IX investigation into Yale’s sexual climate, which began last March, is still ongoing.