What the Future Holds for the Federal Crackdown on Campus Sexual Assault

Campus sexual assault commands enough attention that both major political parties’ platforms take it on.

“Democrats will fight to bring an end to sexual assault — wherever it occurs, including on campuses — because everyone deserves a safe environment where they can learn and thrive, not live in fear,” that party proclaims. Its platform pledges support services for survivors, the term many victims use; a fair process for resolving cases; and greater prevention.

Republicans propose a different solution. Reported assaults “must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge,” they contend. The Obama administration’s “distortion of Title IX to micromanage the way colleges and universities deal with allegations of abuse,” they say, “contravenes our country’s legal traditions and must be halted.”

Indeed, President Obama and Vice President Joseph R. Biden Jr. made the issue such a priority that it has generated significant controversy. Their first assistant secretary for civil rights at the Education Department, Russlynn H. Ali, promised to step up enforcement, and in 2011 a now notorious “Dear Colleague” letter, introduced by Mr. Biden, exhorted colleges to respond to students’ reports of sexual assault and to protect them throughout the process.

Activists outraged with what they described as colleges’ incompetence or malfeasance found allies in the administration. In this era of enforcement, the federal government has conducted 310 investigations of colleges for possibly mishandling reports of sexual violence. So far, 50 have been resolved, and recent cases have grown longer, tougher, and more damning.

Some advocates praise the government for finally holding colleges accountable. But challenges to the civil-rights office’s authority have mounted, as lawmakers and lawsuits argue that its aggressive stance amounts to overreach and erodes due process. Its recent guidance, they say — particularly that colleges decide cases using a relatively low burden of proof, known as “preponderance of the evidence,” or more likely than not — should be thrown out.

The administration is in its waning months, but the civil-rights office is forging ahead, announcing new investigations by the week. A total of 260 remain open, as the current assistant secretary, Catherine E. Lhamon, fiercely defends the enforcement strategy. But its future is uncertain. A judge could deal a blow to the department’s efforts, or a new presidential administration — even a Democratic one — could shift priorities. Many observers now wonder if the pendulum will swing back, and how far.

Burgeoning Backlog

Three years ago, activists rallied outside the Education Department to demand stricter enforcement of Title IX. “Until the department is willing to enforce these laws, we’re left with little more than empty promises,” Alexandra Brodsky, a recent graduate of Yale University, said at the rally.

The advocacy group Know Your IX emerged to support victims, lobby government, and sustain the movement, through efforts like boot camps. “We’re trying to transfer the knowledge,” says Alyssa Peterson, a policy and advocacy coordinator. The group connects victims of sexual assault with lawyers to help file federal complaints, and a few organizers are becoming lawyers themselves. Ms. Brodsky just graduated from Yale Law School, and Ms. Peterson is one of two starting there this fall.

Meanwhile, the Title IX complaints they and other student-activists-turned-full-time-advocates are encouraging have prompted the civil-rights office to investigate. And thanks in part to their lobbying, the public knows which colleges are under review and what federal officials find there.

Releasing that information gives Ms. Lhamon a sense of accomplishment. “Making the fact of our investigations more transparent, making the results of our investigations more transparent, talking about the issue, taking the issue out of the shadows,” she says, “has been an important fulcrum for the national change that we’ve seen.”

Steadily more students have come forward, both to report assaults on campuses and to tell the Office for Civil Rights that their colleges mishandled those reports. In the 2012 fiscal year, the office received just 16 complaints against colleges involving alleged sexual violence. By 2015 there were 164. Many complaints are more complex now, some filed by large groups of students and alumni, describing not just isolated incidents but a pattern of misconduct that has allegedly created a hostile environment. At the same time, the office is trying to identify campuses where students may not be as aware of their civil-rights protections.

In the last 12 months, the office opened an investigation, on average, every 3.2 days. It has taken a more thorough approach than before, evaluating not just one incident, but often three years of data and practices across a university, says Ms. Lhamon. “One downside of being more comprehensive,” she says, “is that it is slower.”

In the same 12 months, the office resolved an investigation, on average, every 61 days (another was resolved in April by the Department of Justice).

The civil-rights office has tried to become more efficient, the assistant secretary says, by using an online complaint form, training staff members on best practices for conducting investigations, and imposing a 90-day limit on negotiations with an institution to resolve a case. But the office is not equipped for this volume of work. The Obama administration’s 2016 budget request, with an increase of $31 million, would have allowed for an additional 200 full-time employees, but the office ended up with only an additional $7 million.

Ms. Lhamon knows she has a burgeoning backlog and less than six months before the end of the administration. “I’d like to be able to close out as many investigations as I can,” she says. But across all areas of enforcement, each investigator has a “distressing caseload,” she says, of more than 20.

The students and alumni who called for the investigations welcome how many there are and how much tougher they’ve become. “Obviously this is much better than they’ve ever been,” says Ms. Peterson. But the activists aren’t satisfied. She identifies two goals of Title IX, systemic change on campuses and protection for individuals who have been harmed. For complainants, she says, an investigation does not offer effective protection.

Know Your IX worries about the students who still have to take classes with their alleged assailants, who file complaints against their colleges and watch the months and years go by. Maybe they graduate, or drop out. More-consistent communication between the civil-rights office and complainants would help, Ms. Peterson says. So would remedies at the onset of an investigation, she adds, and greater recognition of the financial costs victims may face, including medical expenses, lost tuition, and student-loan interest.

Enforcement may be more robust, advocates say, but to truly protect victims’ rights, it hasn’t gone far enough.

Legal Challenges

Others argue that enforcement has already gone too far. Many people — including senators, members of the U.S. Commission on Civil Rights, and a federal judge — have challenged the civil-rights office’s authority or accused it of executive overreach.

Kent D. Talbert, a general counsel at the Education Department under President George W. Bush, argues that the office lacks the authority to impose some of the common requirements in its settlements to resolve investigations. He takes issue with the monetary relief that a handful of resolution agreements have granted to complainants, to reimburse them for expenses like counseling. Others also object to the removal of students from campus disciplinary panels, a role some administrators strongly defend.

Meanwhile, the civil-rights office is taking heat from lawmakers in Washington and from accused students in the courts. Sen. James Lankford, Republican of Oklahoma, fought with Ms. Lhamon this year over whether her office’s guidance imposed new legal requirements on colleges. Former students at Colorado State University at Pueblo and the University of Virginia School of Law have sued the civil-rights office, as has a state lawmaker in Georgia.

“We wanted to attack the problem at the root,” says Justin Dillon, the lawyer representing the law student. He shares the civil-rights office’s goal, he says, but not its prescriptive approach. “I can’t tell you how many people in higher education, including general counsels of schools, are rooting for me and hope that we win,” he says. “But they can’t say so publicly.”

If you ask Ms. Lhamon, criticism comes with transparency: “In the past, it was hard for people to evaluate what patterns or practices were for us because they couldn’t see them.” But recent guidance matches the office’s practice for decades, she says. The “preponderance of the evidence” standard is used in civil-rights law, she points out, as it has been by most campuses for years.

“Since the dawn of Title IX, we have seen challenges to our ability to interpret what Title IX is, and consistently those challenges have lost,” the assistant secretary says. “It’s the same old, same old incorrect legal analysis that is continuing to rear its ugly head,” she says. “It’s a waste of time.”

Whether the guidance expands or just interprets existing law may be up to the courts. “There are some really fundamental questions of constitutional law and statutory authority and regulatory authority on the table,” says Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University.

In similar cases, the courts have decided both ways. Last year the U.S. Supreme Court ruled that government agencies have the authority to issue guidance. But in 2000 a federal appellate court held that guidance issued by the Environmental Protection Agency had, in effect, amended the law. “This it cannot legally do,” the court decided. “The guidance must be set aside.”

Level of Attention

So what will happen to all of those federal investigations?

Back in 1977, responding to a lawsuit from women’s groups, a federal court order set deadlines for the then Department of Health, Education, and Welfare to clear a backlog of Title IX complaints (at issue at the time were athletic participation and employment discrimination). But the department suspended investigations until it could review its controversial guidelines. The women’s groups tried to hold the department in contempt of court.

Perhaps in this era of enforcement there’s some kind of boilerplate solution, says Erin E. Buzuvis, a professor of law and director of the Center for Gender and Sexuality Studies at Western New England University. “At the end of the day, the things that they make universities do when they’re found in violation of Title IX are pretty similar,” she says: update policies, review prior cases, and expand training, among other requirements. “There might be some number of institutions willing to agree to them without the findings in place to force them into that situation.”

But findings are unique to each investigation, as is the monitoring period that typically follows. To help with that, some experts wonder if the Education Department’s Office for Civil Rights may work more closely with the Justice Department, which has investigated at least two cases already.

And if a legal ruling doesn’t change the regulatory landscape, a new federal law might. The Campus Accountability and Safety Act, which tries to establish more-effective prevention and response to campus sexual assault, would require the negotiated rule making that lets stakeholders air concerns and try to reach a compromise. Bipartisan coalitions introduced the bill in the House and Senate in February, and while it is unlikely to go anywhere this year, it may return in early 2017.

The Republican presidential nominee, Donald J. Trump, hasn’t taken a clear position on campus sexual assault, but the Democratic nominee, Hillary Clinton, has promised to end it (it’s one of 37 issues in “Hillary’s vision for America”). It would be unprecedented for an assistant secretary for civil rights to stay on in a new administration, but Ms. Lhamon says she would consider it: “This is the job of my lifetime,” she says, “here with these amazing colleagues getting to do this much justice.”

Meanwhile, the existence of the investigations may be more important than when or how they’re resolved. “We’re seeing the complaints as more of a media strategy,” says Ms. Peterson of Know Your IX. Students tell their stories of being mistreated by their colleges, apply public pressure, and make the institutions scramble to respond.

Even those not under investigation have expanded resources. “There are university administrators across the country in good faith trying to do better on this issue,” says Ms. Buzuvis, who also runs the Title IX Blog. There are more task forces, Title IX coordinators, and climate surveys. “They’re paying attention,” she says, “in a way they haven’t in the past.”

Federal enforcement is certainly influential on that front. But if it shifted or slowed, would that attention wane?

“Reform is a good idea, but there are elements of it that are a stampede,” says Gary M. Pavela, retired director of student judicial programs at the University of Maryland at College Park and a national expert on legal issues in higher education. “There is wisdom in giving general direction to colleges,” he says, to find the best solutions. “That would be much more productive over the long run.”

Sara Lipka edits coverage of campus life and other topics. Follow her on Twitter @chronsara, or email her at sara.lipka@chronicle.com.