Federal Government Increases Focus and Issues Clarification on Schools’ Responsibilities Regarding Sexual Assault

April 30, 2014

On April 29, 2014, President Obama’s White House Task Force to Protect Students From Sexual Assault released its first report and launched a new website—NotAlone.gov—focused on increasing awareness of and abating sexual assault on college and university campuses nationwide. The report, which is one of several to follow in the coming months, was compiled over the last three months based on a national conversation involving thousands of interested parties. In the report, the task force outlined four key initiatives: (1) identifying the problem through campus climate surveys designed to gauge the prevalence of sexual assault on campus; (2) providing sexual assault prevention and awareness programs; (3) responding effectively when a student is assaulted—including having a confidentiality and reporting protocol, a comprehensive sexual misconduct policy, specialized training for school officials, investigative and adjudicative protocols, partnering with the community to provide support to victims, and working with school researchers to find new solutions; and (4) improving the transparency of government enforcement efforts.

The report and the new website again signal the federal government’s increased attention on issues of sexual violence and forecast a likely rise in the number of investigations by the United States Department of Education’s Office of Civil Rights (OCR), the government agency primarily responsible for overseeing enforcement actions under Title IX. Title IX requires colleges and universities receiving federal funding to take steps to respond to and prevent sexual harassment, including sexual violence. OCR has previously discussed schools’ responsibilities under Title IX in its guidance issued in 2001 and its 2011 “Dear Colleague Letter.” This week, in conjunction with the release of the task force report, OCR has now released a 52 point question and answer resource intended to further clarify the legal requirements and guidance previously issued.

Both the task force report and OCR’s new guidance provide important information that colleges and universities need to understand in order to ensure that they are in compliance with their duties and responsibilities under Title IX. Significantly, it is clear that—consistent with previous guidance—the federal government is firm that colleges and universities have a “broader responsibility” to provide a safe learning environment free from sexual violence and cannot rely exclusively on local law enforcement agencies to respond to allegations of sexual assault. To that effect, schools must be proactive in responding to and investigating claims of sexual violence. The recent additional information and clarification from the government is helpful in defining and mapping out a school’s obligations, such as, for example, providing more information regarding “responsible employees” for purposes of reporting and guidance on how to address requests for confidentiality. Nevertheless, there remain complex aspects of the challenges a school is faced with when handling a sexual violence claim—navigating confidentiality requests, properly investigating and adjudicating the allegations, and effectively interacting with local law enforcement—to name a few.

Measures outlined in the task force report make clear that the federal government is emphasizing the importance of schools accurately ascertaining the problem on campus—through the newly outlined campus climate surveys—as well as the importance of transparency about the conditions on individual campuses by providing easily accessible information including enforcement activity to the public through the new website. Thus, it is critical that colleges and universities know their Title IX obligations, have effective and comprehensive policies and procedures in place that comply with those obligations, and act in accordance with those obligations when an incident of sexual violence, or any form of sexual harassment, occurs.

If you have questions or for more information, please contact one of McGuireWoods’ higher education team members specializing in Title IX matters—Craig Wood, Melissa Nelson, Josh Whitlock, Meredith Green, Christina Egan, or Tyler Laughinghouse.