Past investigations can offer clues in UNC-CH case

Associated PressMarch 16, 2013 

— As North Carolina’s flagship university faces a deadline to answer questions about how it handles reports of sexual assault, federal officials’ track record and past investigations can offer clues to the price the school may pay.

The University of North Carolina at Chapel Hill has until Thursday to respond to questions as part of an investigation by the U.S. Department of Education. Five women filed a complaint in January with the DOE’s Office for Civil Rights, and the OCR said this month that it would investigate.

The five – three students, one former student and a former assistant dean of students – alleged violations of Title IX, education’s gender-equity law, in the handling of sexual assault cases. They filed another federal complaint under the Clery Act, a law that often deals with the underreporting of on- and off-campus crimes. UNC-CH has denied underreporting crimes and said it’s cooperating with the OCR investigation.

The OCR has never wielded its biggest stick, withdrawal of federal funding – a certain death for almost any school. After taking a hard-nosed approach a few years ago, the agency seems to have a taken a less strident stance, preferring to work with campus administrators to fix the problems rather than issue punishments, said Peter Lake, law professor at Stetson University.

“It’s become pretty clear that the department wanted to start emphasizing voluntary compliance and collaborative audits and reviews,” said Lake, director of the Center for Excellence in Higher Education, Law and Policy at Stetson. “It doesn’t mean they won’t drop the hammer on people. But there’s a friendlier and more collaborative vibe coming from Washington on a lot of this.”

In 2010, the OCR came down hard on Eastern Michigan University and Notre Dame College in Ohio. EMU was fined more than $350,000 for Clery Act violations after a student was killed in her dorm room. Both schools had to revise, publish and review Title IX sexual harassment grievance procedures; designate Title IX coordinators to handle complaints; and provide training on Title IX.

In April 2011, the OCR published what’s known as the “Dear Colleague” letter, addressed to colleges and universities nationally. The DOE said it issued the letter to explain that Title IX covers sexual violence and “to remind schools of their responsibilities to take immediate and effective steps to respond to sexual violence in accordance with the requirements of Title IX.”

Standards set high

While Lake says OCR went from a “hang `em high mentality” to a mantra of working together, other education experts disagree.

“I’m not seeing them loosening up on schools at all,” said Saunie Schuster, a partner at the NCHERM Group LLC, a legal and consulting firm that addresses risk management issues on campuses, including sexual misconduct.

A compliance review agreement with Xavier University last year had similar language to that of agreements with Eastern Michigan and Notre Dame College, where Schuster was the legal counsel while it was investigated, she said. The Xavier agreement included a longer OCR oversight period than previous agreements, she added.

OCR might resort to funding withdrawal if a school refused to go along with its compliance requirements, she said. “But I’ve never seen a school do that,” she said. “I’ve also never seen OCR back down from rigid, specific requirements.”

Gina Smith, an expert on college sexual misconduct and a former prosecutor hired by UNC-CH after the women filed their complaints, said OCR seeks to “enforce the values that underlie Title IX.” She is tasked with reviewing university policies and talking with students and administrators about sexual violence. She has been on campus about a month and plans to finish her report by spring semester’s end.

OCR seeks “to provide a fair process,” she said. “They’re willing to work with schools.”

Lake said an OCR investigation can even turn into a positive, as it did at Yale University. An investigation of a Title IX complaint there ended with no finding of noncompliance. A Yale spokesman said the school “cooperated fully with the investigation, which was a thorough examination of all Yale does to prevent and discipline sexual misconduct.”

The OCR’s “Dear Colleague” letter and court decisions mean colleges can’t leave law enforcement as the only place where victims can report sexual assaults. Schools must follow detailed requirements on how to investigate charges themselves. They must train staff to help sexual assault victims, and remediate harm, by providing counseling and other methods.

UNC’s situation

In the UNC-CH case, neither complaint against the school has been released, but the OCR’s letter acknowledging the investigation provides insight about what it’s looking into. The letter alleges that UNC-CH failed to respond appropriately to concerns about sexual assault and that it didn’t provide impartial investigations. The complaint also alleges that the school didn’t have appropriate grievance procedures and didn’t provide appropriate training for residential life staff and others, the letter said.

In a March 8 letter to the university community, Chancellor Holden Thorp said the school is not only cooperating fully with the OCR investigation but welcoming it.

“Our response will show how the University has made significant changes in the past 18 months about how sexual assault complaints are handled,” he said.

As of March, the school also has hired two new employees to investigate sexual assault allegations and help survivors, said Thorp, who is leaving UNC-CH in June.

“Our system is still not perfect,” he said. “There is more work to be done, and we are committed to making additional changes that will improve the way sexual assault cases are handled at the university.”

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