Published Online: April 4, 2011
Updated: March 24, 2012

Schools Get Federal Guidelines on Sexual Violence

Vice President Joe Biden and U.S. Secretary of Education Arne Duncan, seated, make an appearance earlier this month at the University of New Hampshire in Durham to call attention to sexual violence in schools and colleges.
—Cheryl Senter/AP

After the gang rape last fall of a 14-year-old girl in the stairwell of a District of Columbia high school during the school day, a teacher wrote to a newspaper, horrified at how the situation was handled.

It wasn’t handled at all, she said. At a staff meeting the Monday after the attack, she said, the school administration didn’t even bring it up.

“After the meeting, I had to go up to my classroom and pretend that nothing happened,” second-year teacher Jessica Lilly wrote in an email to The Washington Post. “For the rest of the day, I attempted to teach how to write an equation of a line in slope-intercept form in between student conversations about the attack.”

Now, the U.S. Department of Education’s Office of Civil Rights is looking into the way District of Columbia Public Schools addressed the situation, and it is using the power of Title IX, a law typically associated with gender equity. Schools have been repeatedly advised about how to handle those issues since the creation of Title IX in 1972, but they have never had formal federal guidance about how to deal with sexual violence under that law.

To fill in that gap, the U.S. Department of Education’s Office of Civil Rights on Monday sent school districts, colleges, and universities a 19-page “Dear Colleague” letterRequires Adobe Acrobat Reader with details about how they should work to prevent and respond to on-campus sexual violence, or acts that occur off campus but affect school, under Title IX’s provisions about sexual harassment.

“We just want to help everybody do the right thing. We just want to be very clear,” U.S. Secretary of Education Arne Duncan said Monday during a visit to the University of New Hampshire with Vice President Joe Biden, who as a senator sponsored the Violence Against Women Act in 1994. The university was selected for the announcement of the new guidance because of its approach to dealing with allegations of sexual assault and battery, including educational campaigns and comprehensive victim services, officials said.

“We need to raise awareness on this issue,” Mr. Duncan told reporters after the visit. “Sexual violence has no place in society and especially in our schools. Students across the country deserve the safest possible environment in which to learn.”

While sexual violence cases are often associated with college campuses, the scope of the problem in elementary and secondary schools and postsecondary institutions may be underestimated because of spotty data, said Lynn Rosenthal, the White House adviser on violence against women. Information from the Centers for Disease Control and Prevention shows that by the time girls graduate from high school, more than one in 10 will have been physically forced to have sexual intercourse in or out of school.

“There is a terrible and alarming trend in the country of sexual violence,” said Russlynn H. Ali, assistant secretary for civil rights for the Department of Education. “The problem, of course, is not limited to higher education.”

During the 2007-08 school yearRequires Adobe Acrobat Reader, there were 800 rapes on elementary, middle, and high school campuses and 3,800 cases of sexual battery aside from rape, according to the National Center for Education Statistics.

The letter offers advice for colleges and schools, including how to protect victims, when to begin investigations, and the standard of proof required to take action under federal civil rights laws in cases of rape, sexual assault, sexual battery, and sexual coercion.

For example, schools don’t have to wait for the conclusion of a criminal investigation before beginning a Title IX investigation. While that is in progress, schools can take interim steps, including making sure a victim and suspected aggressor aren’t in the same classes and providing medical and counseling services as needed. Once the investigation is complete, they can take action against a student or staff member if there is a preponderance of evidence that a violent sexual act occurred—a lesser standard than one needed in criminal court, Ms. Ali said.

In addition, just because an incident occurs off campus doesn’t mean a school doesn’t have to get involved, because it could create a hostile environment for the victim on campus. And, she said, “a single incidence of rape is sufficient to create a hostile environment ... for the entire school community. That is a huge point of clarification universities and schools have often struggled with.”

The guidance is welcome, said Francisco Negron, general counsel for the National School Boards Association.

“Offering districts guidance that's useful … can help them keep students safe,” he said. But it also raises some questions. “Our concerns are that the requirements of the law not be interpreted in an overly expansive way,” he said. “Do you treat every incident of sexual violence as inherently creating a hostile environment?”

Mr. Negron said districts also need more clarification on when an off-campus episode rises to the level of requiring school district action.

“Say the allegations haven't been proven,” he said. “It's not clear from the department's guidance what the district's responsibility would be. We don't want [school districts’] measured decisions chilled by fear of litigation.”

Ms. Ali said schools and universities also need to do more to educate students and staff about their Title IX rights and their ability to file complaints with the Office of Civil Rights—not just with law enforcement.

If schools and universities don’t handle cases correctly, Ms. Ali said, victims can be “further victimized by the process.” In some cases, she said, “the process goes on so long the accused withdraw from school. Or victims are punished for drinking alcohol or breaking laws leading up to the assault.”

In addition to investigations at several college campuses, her office has recently closed or is in the midst of resolving how districts handled sexual violence cases in a number of school districts. They are investigating how the West Contra Costa Unified School District in northern California handled the gang rape of a teenage girl after a homecoming dance in 2009. When she left to call her father for a ride home, she was lured into hanging out with others outside, where she got drunk, and was then beaten, stripped, robbed, and repeatedly raped by several men and teenage boys while others watched.

In May 2009, the Office of Civil Rights resolved a case in Chicago Public Schools, where there were allegations that an off-campus sexual assault led to harassing behavior on campus that rose to a level of a sexually hostile environment, she said. In Indianapolis Public Schools, the Office of Civil Rights stepped in when the school district didn’t address allegations of sexual harassment by a teacher of students.

Coincidentally, earlier this month, the Department received a 26-page complaint alleging Yale University was told of several incidents of sexual harassment and did not respond promptly or effectively. The complainants said the university’s inaction led to the denial of equal educational opportunities for many students, a violation of Title IX, among other charges.

“There are far too many incidences where victims are victimized by the process. Our guidance seeks to change that,” Ms. Ali said. “Our first goal is prevention through education. Where our office needs to be involved in an enforcement context, we will be involved.”

Vol. 30, Issue 28

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