Biden, Duncan highlight new federal guidance on campus sex assault probes

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The Obama administration took new steps yesterday to address one of the most common crimes on college campuses: sexual assault. Speaking at the University of New Hampshire, a school known for its proactive approach to combating sexual violence, Vice-President Joe Biden and Education Secretary Arne Duncan unveiled the first-ever explicit federal guidance on how colleges and universities must respond to student complaints of campus sexual assault.

In strongly worded remarks before a crowd of school administrators, victim advocates, and students, Duncan said he is troubled by the way some colleges and universities have been handling cases of sexual violence.

“The misplaced sense of values and priorities in some of these cases is staggering,” Duncan said. “As caring adults, as parents, and leaders we must deal with the brutal truth and the facts around these incidents can be shocking.” 

Schools have an obligation, under the federal law known as Title IX, to investigate student complaints of sexual assault, and to take prompt and effective action to end any harm. For years, college administrators have criticized the federal government for its lack of specific and consistent instruction on how to resolve student claims of campus rape; the confusion, critics say, has resulted in campus judicial processes that can leave student victims feeling further victimized. The failure of both schools and the Education Department was the subject of an award-winning investigative series published by the Center for Public Integrity last year. Some of the project’s main findings were highlighted on Monday by Duncan, who expressed concern over cases in which victims are not informed of their rights; instances in which investigations drag on until alleged perpetrators can graduate; and cases involving gag order for victims.

“We have to do better,” the Education Secretary added, “and we have to do better now.”

The new 19-page “dear colleague” guidance will be sent to all higher education institutions, as well as K-12 schools. Duncan said that the guidance marks the first time that they have received clear direction from the federal government on handling these cases.

Biden, who authored the landmark Violence Against Women Act of 1994, called on colleges and universities to be leaders in tackling the prevalence of sexual assaults on campuses.

“Rape is rape,” the vice president said, “and the sooner universities make that clear, the sooner we can make progresses on campus.”

Biden’s words come just days after news that Yale University students have urged the Education Department’s Office for Civil Rights, or OCR, to immediately investigate the university. Citing recent instances of alleged sexual misconduct at Yale, students filed a 26-page complaint, received by OCR on March 15, alleging that a “sexually hostile environment” exists on their campus. The complaint claims that Yale University has been on notice regarding the alleged incidents of harassment and has not responded promptly or effectively, among other claims. Yale officials had not yet seen the complaint, and thus declined to comment. But Yale College dean Mary Miller said in an e-mail message to the campus that the school “is notable…for the extraordinary number and range of initiatives…devoted to the advancement of women.”

Education Department officials confirmed details of the Yale complaint, and said the civil-rights office has opened an investigation against the university, but stressed that the administration’s regulatory guidance has been in the making for months.

Back in February 2010, the Center — in collaboration with NPR — reported that the OCR rarely investigates complaints like the one filed by Yale students. When cases have gone forward, the OCR rarely rules against schools, and virtually never issues sanctions against them. The investigation, published in the six-part series “Sexual Assault on Campus: A Frustrating Search for Justice,” also revealed that students found “responsible” for alleged sexual assaults on college campuses often face little or no punishment, while student victims face a depressing litany of barriers that often assure their silence or leave them feeling victimized a second time.

Following the Center series, Russlynn Ali, the department’s assistant secretary for civil rights, pledged a more aggressive approach to enforcement from her office, including what she now calls the “historic” guidance. The administration’s guidelines touch upon some key policy issues that have long caused controversy for colleges and universities. For instance, they make explicit that schools must afford both the alleged perpetrator and the alleged victim the same rights — access to lawyers, evidence, and character witnesses, as well as appeals processes — during college disciplinary hearings. And they specify that a criminal probe does not release schools from doing their own investigations, under the law. The guidelines also note that schools should rely in their inquiries on the more lenient evidence standard in these cases — known as the “preponderance of evidence” standard — and that informal proceedings, like mediations, are not appropriate in campus-rape cases, even on a voluntary basis.

Colby Bruno, a managing attorney at the Victim Rights Law Center, in Boston, praised the administration’s detailed guidance as “a big victory for victims and us their attorneys.” Bruno, who was featured in the Center series, said that some schools “went deeper into hiding, keeping more secrets so their wrongdoing couldn’t be exposed” in the wake of the investigative report. Now that the OCR is releasing this guidance, she added, it “sends a clear message to colleges and universities that they can no longer ignore rape and sexual assault on their campuses.”

One thing the guidelines do not address is the punishment that schools must mete out to students found responsible for sexual assault — an omission that students who attended the UNH event criticized. “I think the government should enforce strict punishment,” said Brenna McLaughlin, a UNH undergraduate.  “It shouldn’t be each university deciding the different punishments.” 

While the OCR has sent out its new guidance, victim advocates are gearing up for the re-introduction of the Campus Sexual Violence Elimination Act. The federal legislation, first filed on Capitol Hill last fall, would expand the programs that institutions must offer to include prevention awareness and bystander intervention education, meant to stop sexual assaults from occurring before they actually do. It would better protect the rights of victims by guaranteeing such support services as counseling, legal assistance, and medical care on campus, as well as other accommodations. Most importantly, the bill would set up minimum, national standards for all colleges and universities to follow in responding to allegations of sexual assault and sexual violence on their campuses.

Senator Robert Casey Jr., a Democrat from Pennsylvania, is expected to re-introduce the bill later this month.

Sarah Favot of the New England Center for Investigative Reporting contributed to this story.