In the spirit of aiding and informing public debate, the National Association of Scholars has compiled a short guide to the relevant federal agencies, statutes, publications, organizations, and policy statements bearing on the issues of sexual harassment and sexual assault on campus.
Sexual harassment and sexual assault on campus (often combined under the term “sexual misconduct”) have recently become the subject of renewed national attention. The White House has created a special ad hoc task force charged specifically with investigating collegiate “sexual misconduct,” and a Senate subcommittee has commenced a series of public roundtable discussions to examine the issue. The Office for Civil Rights in the Department of Education and the Justice Department have issued new regulations. Colleges and universities have adopted new policies. Numerous legal challenges to the application of those policies have been filed. And the academic and national news outlets have devoted considerable attention to the topic.
Sharply divergent views have arisen regarding the frequency of violent sexual assaults, the appropriate institutional policies for preventing them, the best ways for victims to report assaults, and how authorities should respond to allegations. Some see an epidemic and an emergency, and infer that many incidents go unreported. Others allege that a real problem has been exaggerated by ideologically-driven partisan assumptions, bogus crime statistics and institutional animus against the accused, usually men.
The current controversy renews an older debate within academe that began in the late 1980s, when colleges began to mint “sexual harassment” codes. In 1993, the NAS issued Sexual Harassment and Academic Freedom, expressing our concern about the frequently vague and elastic definitions of “harassment” found in many campus codes, the potential threats to academic freedom or freedom of speech that they posed, and the often arbitrary adjudication procedures which seemed weighted against the accused.
Our purposes in publishing this document are to help those who are new to the debate to follow its antecedents and to provide participants in the discussion a handy reference source. The following chronological list of links to the principal federal agencies, statutes, and publications is interspersed with articles, commentaries and statements we and others have published in response. The NAS will continue to follow this issue closely, and the list will be updated and expanded periodically as relevant new items appear.
- Government Agencies Dealing with Sexual Assault Policies
Office for Civil Rights in Education – a division within the US Department of Education, charged with enforcing civil rights laws in all colleges, universities and schools receiving funding from the DOE. OCR is authorized to withhold federal funds from institutions not in compliance with federal civil rights policies and statutes. Recently, the agency released a list of 55 colleges and universities under investigation for non-compliance.
White House Council on Women and Girls – established in March 2009 by presidential executive order. Members include the heads of every federal agency and major White House office, and are charged with taking into account “the needs of women and girls in the policies they draft, the programs they create, the legislation they support”
White House Task Force to Protect Students from Sexual Assault – an interagency committee established by presidential directive in January 2014, charged specifically with addressing rape and sexual assault on college and university campuses.
US Senate Subcommittee on Financial and Contracting Oversight – chaired by Senator Claire McCaskill (D, Missouri) recently convened a series of three Roundtables to focus on sexual assault on college and university campuses. McCaskill also recently sent a Survey of Campus Sexual Violence Policies and Procedures to 450 schools, asking that they respond to a lengthy questionnaire about their institutional procedures for reporting and processing sexual assault cases. The announcement of the survey aroused widespread wariness and criticism, and The American Council on Education responded by offering a private, online webinar to its member institutions, apparently to provide advice on the legal implications of participating in the survey. McCaskill was displeased, and asserted that the webinar may have damaged the integrity of her survey, by inducing participant institutions to decline response. In a letter to ACE president Molly Broad, she requested that ACE provide the names of its members participating in the webinar. Speaking through its general counsel, ACE declined and McCaskill repeated her request in a second letter. A few days later, ACE reversed its position and released the presentation without comment, although Inside Higher Education indicated that it had obtained the webinar materials through a public records request presented to the University of Florida.
US Senate Committee on Health, Education and Labor Pensions - chaired by Senator Tom Harkin (D. Iowa) conducted a formal hearing on June 26, "Sexual Assault on Campus: Working to Assure Student Safety." NAS submitted testimony in advance, indicating our concern over the erosion of due process and the presumption of innocence by campus tribunals charged with adjuducating complaints of sexual assault.
- Federal Statutes
The following laws relate directly or tangentially to sex discrimination, sexual harassment or sexual assault on college and university campuses.
Title IX Education Amendments, 1972 – the law prohibits discrimination on the basis of sex by higher educational institutions. The Office for Civil Rights (OCR) within the US Department of Education is charged with enforcing compliance, which includes withholding federal funding from institutions determined to be in violation. OCR has recently ruled that sexual assault is included within Title IX’s prohibition of “discrimination.” In April, the DOE issued a series of questions and answers intended to clarify the responsibilities of educational institutions in dealing with cases.
The Clery Act – enacted in 1990 as the Campus Security Act, the law was re-named in 1998 in memory of Jeanne Clery, who was brutally raped and murdered in her dormitory room at Lehigh University in 1986. The statue requires colleges and universities to provide annual crime statistics culled from their respective campuses and the immediate vicinity.
Campus Sexual Assault Victims’ Bill of Rights – a 1992 amendment to the Clery Act, the law mandates specific procedural and compensatory rights for victims of sexual assault, along with monetary penalties for institutions that fail to comply.
Violence Against Women Act – 1994, amended 2013 – although not specifically aimed at higher education institutions, the VAWA of 1994 offered a number of grant programs for the reduction and prevention of violence in which colleges and universities would be eligible to participate. The 2013 re-authorization of VAWA, however, contains a number of new provisions which extended directly to higher educational institutions, summarized in this publication by the American Council on Education.
Campus SAVE Act of 2013 – as an Amendment to the Clery Act, the new law imposes a number of new requirements with regard to processing and reporting cases of sexual assault, as well as expanded protections for victims of assault. Pursuant to these amendments, the Office of Postsecondary Education within the US Department of Education proposed specific new regulations reflective of the intention of Congress in the Federal Register, June 20, 2014. OPE invited public comments to be submitted by July 21.
- Significant Judicial Precedents
Meritor Savings Bank v. Vinson (1986) - US Supreme Court Decision defining the “hostile environment” standard for sexual harassment cases, actionable under title VII of the 1964 Civil Rights Act.
Davis v. Monroe County Board of Education (1999) - although the case was specifically concerned with whether educational institutions were liable under Title IX for cases involving student-on-student allegations of sexual harassment, the Court signifiacntly defined harassment as conduct which was "severe, pervasive and objectively offensive." This definition was endorsed by NAS and a number of other organizations, including FIRE.
DeJohn v. Temple University (2008) - a major ruling by the US Third Circuit Court of Appeals, which held that Temple University's sexual harassment code was unconstitutionally vague and overbroad.
- Federal Publications and Policy Statements
Sexual Harassment Guidance, March 1997 – OCR’s initial guidelines defining sexual harassment and setting the bounds of institutional accountability. The notice acknowledges receiving comments about the breadth and vagueness of terms and definitions, as well as fears of a potential negative impact on academic freedom and freedom of speech on college campuses.
Protecting Students from Harassment and Hate Crimes: A Guide for Schools – a joint publication of OCR and the National Association of Attorneys General issued in 1999. Although intended to encompass a much broader range of potential “harassment” (i.e., racial), the document also includes a section on sexual harassment.
Revised Sexual Harassment Guidelines – A follow-up and expansion of OCR’s initial guidelines of 1997, published in 2001. NAS, among other organizations, reiterated concerns about the nebulous definition of harassment and the potential dangers to free speech and academic freedom.
OCR “Dear Colleague” Letter of July, 2003 – a letter of guidance from then-assistant secretary for Civil Rights Gerald A. Reynolds declaring that OCR’s enforcement of Title IX regulations would be entirely consistent with First Amendment guarantees. The letter also attempted to define “harassment” with greater precision, stating that it should be associated with conduct that was “severe, persistent, and pervasive.”
Sexual Assault on Campus: What Colleges and Universities are Doing About It – a study published in December 2005 by the Institute of Justice, a research agency within the US Department of Justice. The report concluded that women on college campuses were at considerable risk of experiencing sexual assault, and found in addition that many schools were in only minimal compliance with federal laws, especially the Clery Act.
The Campus Sexual Assault Study, 2007 – an independent study funded, but not endorsed, by the US Department of Justice. The report’s methodology has been widely criticized, but it is often cited as an authoritative source of campus sexual assault data.
OCR “Dear Colleague” Letter, April 2011 –announced a set of mandatory new guidelines which depart significantly from those in the letter of 2003. In contrast with previous practice, OCR did not solicit input or testimony from external sources, and did not provide prior notice that new norms were forthcoming. The new guidelines made no mention of the 2003 letter’s First Amendment guarantees. Most controversial were new procedural standards which made it much easier, almost mandatory, for campus tribunals to reach guilty verdicts. OCR supplemented the 19-page letter with a short Background and Summary. NAS strongly criticized the new norms, as did the AAUP and FIRE.
Know Your Rights - also issued by OCR in April 2011, providing brief definitions of sexual violence and sexual assault, and explaining how to file complaints with the agency.
National Intimate Partner and Sexual Violence Survey, 2010 – a broad survey of sexual violence published in December 2011 by the Center for Disease Control and Prevention. The report, which cited widespread, unreported sexual violence nationwide, elicited both wide praise and strong criticism.
OCR/Justice Department Correspondence with University of Montana, 2013 – following the resolution of a series of incidents at the university. The agreement seemed to impose sweeping new standards for adjudicating sexual misconduct cases, which OCR indicated would serve as a “blueprint” for other institutions. But following widespread public criticism from NAS and other organizations, the agency retreated. The controversial “dear colleague” principles of 2011, however, remained unaffected.
Rape and Sexual Assault: A Renewed Call to Action – issued by the White Council on Women and Girls in January, 2014. Although addressed to sexual violence in general, the report notes that sexual assaults on college campuses were “a particular problem,” since one in five women experienced rape or sexual assault during her college years.
Not Alone – first report of the White House Task Force to Protect Students from Sexual Assault, April, 2014. This document assesses the prevalence of rape and sexual assault on college campuses, and reiterates the assumption that at least 20% of college women will be raped or assaulted during their college years. It calls for a major overhaul of campus procedures for reporting and adjudicating allegations of sexual violence and concludes that the problem is a “complicated, multi-dimensional problem with no easy or quick solutions.” In May, 2014, the administration announced the creation of the Not Alone web page to provide source materials, links to federal agencies dealing with sexial assault, and procedures for filing complaints.
Checklist for Campus Sexual Misconduct Policies - a document available at the Not Alone website offering guidelines for designing campus codes.
Questions and Answers on Title IX and Sexual Violence - issued in April 2014 by the Office for Civil Rights, described by the DOE as a "significant guidance document." It provides a 52- item list of guidelines for college policies in dealing with allegations of sexual misconduct. They include a description of the scope of Titile IX's protections, the responsibilities and authority of the campus's Title IX coordinator, and specific rules of procedure for disciplinary bodies processing complaints. Among the latter is the strong suggestion that parties to a complaint should not be permitted to cross-examine each other.
Indicators of School Crime and Safety: 2013 - a joint publication of the Department of Education and the Department of Justice's Office of Justice Statistics issued in June, 2014. The report surveys includes crime statistics from schools K-12, but also includes data on campus crime, such as sexual assault.
Sexual Violence on Campus - the results of a survey conducted by Senator Claire McCaskill (D. Mo.) following a series of hearings and Roundtables conducted by the Senate Subcommittee on Financial and Contracting Oversight. The report, which aroused controversy, concludes that sexual assault is widespread on college campuses, which in turn have been seriously inadequate in their response.
- Principal Organizations Favoring Stricter Sexual Misconduct Policies
Students Active For Ending Rape (SAFER) – student activist group founded in 2000 at Columbia University
- Principal Organizations Critical of the Emergent Sexual Misconduct Rules