Posted: September 5, 2013 Filed under: Uncategorized | Tags: Clery Act, ED, Ed Act Now, Title IX
Letter to the Department of Education from ED Act Now, 09/04/2013
The following letter is a response to a phone meeting with the Department and other administration members regarding the asks given during our in-person meeting following our rally on July 15, 2013.
To the United States Department of Education:
We are the organizers of ED Act Now, a campaign urging the Department of Education (ED) to do more to hold schools accountable for violations of Title IX of the Education Amendments of 1972. On July 15, 2013, we rallied outside the Department and presented our petition, which now has more than 170,000 signatures. Immediately following the rally, we met with representatives from your department, the Department of Justice (DOJ), and the White House, and presented the need for improved Title IX enforcement, as well as a series of specific, concrete asks. Finally, in an August 2, 2013 phone conversation, you provided us your responses to these asks. We appreciate your patience as we compiled this letter containing our responses to the August 2 conversation.
First, we would like to acknowledge some information you provided us during the phone conversation. You stated that about 4% of the approximately 8,000 annual complaints received by your office specifically involve sexual violence. These complaints may be few, but they are both urgent and increasingly frequent. We hope that the launch of Know Your IX, along with continued enforcement efforts by the Department, will ensure that more students file complaints, so that our nation may identify noncompliance and properly address campus sexual violence.
You also reminded us that the Department is tasked with resolving many other cases, some so severe that young people are entirely denied the opportunity to attend institutions of higher education. We would like to remind you that survivors of sexual violence are often denied such opportunities when they are forced by their college administrations to take time off, or are forcibly institutionalized, suspended, or expelled. We know that this Administration has prioritized the need to increase college graduation rates, and note that young people’s likelihood of graduating on time or at all is profoundly influenced by their exposure to violence and harassment in their educational environment.
With that preface, we would like to address your specific responses to our demands.
(1) Timely Investigations
We askedthat ED resolve investigations within a semester of a Title IX complaint being filed. While your office has repeatedly assured us that most Title IX complaints regarding sexual violence are routinely resolved within 180 days of receipt, you also acknowledged that some complaint resolutions have inexplicably been delayed for years. For example, Harvard Law School still has a complaint open from December 2010. A 2009 complaint filed against Tufts University went unresolved until 2013. Every month, semester, and year that ED delays investigating and resolving a complaint, survivors are forced to endure seeing their assailants in their dormitories, in class, on the playing field, at breakfast in the dining hall. Many forego educational opportunities as a result — some even dropping out of school in order to find basic safety. This is intolerable.
Lengthy investigations suggest to complainants that sexual violence is not important enough to warrant the Department’s prompt action, thereby diminishing survivors’ faith in the Department to protect their civil rights at all. Further, such drawn-out investigations send a clear message to offending schools that they will not receive swift consequences — if any at all.
We appreciate the Department’s willingness to improve the timeliness of investigations by establishing a new timeframe for the voluntary resolution of complaints. Still, we insist upon a specific proposal regarding any new time limit on voluntary resolutions, as well as details regarding when such a policy will take effect. We strongly urge you to resolve investigations within one semester of receiving a Title IX complaint — the same standard that you have set for universities in their own investigation and resolution processes. We suggest that you instate this time limit in Fall 2014, when the Campus SaVE Act will go into effect.
(2) Proactive Compliance Measures
We made three specific asks regarding proactive compliance measures:
(i) That ED conduct proactive Title IX investigations when it hears media reports of schools mishandling sexual violence cases rather than waiting for survivors’ complaints. Since our meeting you have opened an investigation at Dartmouth College. We are pleased by this action, as proactive investigations announce to the public — and to colleges and universities — that the Department will aggressively demand that schools comply with Title IX. We urge you to continue these proactive investigations so that they become routine practice.
(ii) That ED ensure national compliance with Title IX through annual school reviews. You have alerted us to the fact that the Department already conducts random annual audits and that 20% of your school reviews are Title IX-related. In real numbers, however, that is only two to four schools investigated per year. While we sympathize with your budget constraints, we believe that such a limited number of reviews is unacceptable, given the alarming frequency at which students suffer abuses on our nation’s campuses. We insist that you increase the number of random Title IX audits you conduct so that we may prevent the violence that too many of our young people are currently forced to endure in their pursuit of education.
(iii) That ED and DOJ work together to conduct retroactive audits of colleges and universities with repeated Title IX complaints to assess clear historical patterns of violation. Colleges and universities such as Tufts University and Harvard College, for example, have shirked their Title IX responsibilities for years and will continue to do so unless and until the federal government identifies and sanctions such behavior. In our August 2 conversation, you did not respond to this demand. We look forward to hearing your response. Please do not allow yet another generation of students to suffer the same abuses at these and other schools.
(3) Resolution Reforms
We had two specific demands regarding resolution reforms:
(i) That ED review any sexual violence complaint under both Title IX and the Clery Act to then appropriately use the intermediate sanctions authorized under the Campus SaVE Act when a violation is identified. Voluntary resolution agreements — the mechanism most commonly employed by the Department to conclude investigations — are fundamentally unsuccessful at ensuring Title IX compliance, as proven most recently at Yale College. We are unsatisfied with your excessive reliance on 20 U.S.C. § 1682, which requires only an initial effort to achieve voluntary compliance under Title IX, and thus does not excuse your responsibility to meaningfully enforce the law.
Another sanction available to the Department — removing all federal funding from non-compliant institutions — is similarly undesirable, as it will necessarily prove harmful to students and survivors who are working class, immigrant, survivors of color.
We therefore demand that ED utilize alternative, intermediate, forceful mechanisms to hold universities accountable — without placing further burden and blame on the shoulders of survivors. For instance, we suggest that ED publish public announcements of noncompliant universities and refer DOJ to investigate, sanction, and monitor schools that violate federal law.
Colleges and universities have had more than forty years to come into compliance with Title IX; it is long past time that these institutions be held accountable for their abuses, and that campuses become safe for all of their students.
(ii)That ED and DOJ work in partnership to investigate and monitor institutional compliance with voluntary resolution agreements. We appreciate your willingness to include more thorough site monitoring on noncompliant campuses since student feedback is essential in assessing compliance. Having federal officials available on campus for feedback will encourage a greater diversity of campus community members to come forward with vital information. We call for specifics regarding the frequency of site visitations both during and after investigations. We suggest at least two site visits per resolution agreement so that federal officials can conduct interviews with students, faculty, administrators, and staff who have signed up through a well-advertised and accessible public system.
ED must advertise the Title IX complaint process as well as publish filings, findings, and resolution letters. The Know Your IX campaign is a response by survivors to the lack of public, easily accessible information about the protections afforded to students by Title IX and ED. This campaign is no substitute for the Department undertaking its own efforts to make the public aware of their civil rights and the accompanying complaint process when those rights are violated.
Title IX complaints must be publicly available on the ED website. In our August 2 conversation, you explained that it would take time to locate and upload past and current complaints and their resolution letters to your website. We demand a clear timeline for the completion of this task.
In the meantime, we expect the Department to publicly post a list of schools that have been or are currently being investigated, as well as the status of these complaints and any resolution measures. As seen at schools like UVA and Tufts, current Title IX complainants are suffering the same abuses, often from the very same administrators, without knowledge of past or pending complaints. This is unacceptable. The public should be permitted to access this information so that prospective students and their families can make informed decisions about which schools to attend, especially in light of the substantial cost of higher education in our country. We ask that this very basic, minimal interim measure be completed by January 2014.
(5) Further Guidance
(i) ED must issue guidance to schools on handling LGBTQ and same-sex sexual violence to ensure adequate enforcement of Title IX. We were disappointed to have to remind you of this particular ask during our August 2 call, but were pleased that you subsequently invited specific members of our group to assist you in developing these materials. We also appreciate your plan to release an FAQ document including guidance on LGBTQ and same-sex violence. We call for a concrete timeline regarding the completion of this FAQ. We believe that this information must become available as soon as possible.
(ii) ED must provide training for its officers, regional departments, and campuses to ensure marginalized student populations are not unfairly burdened when exercising their rights under Title IX. We appreciate the additional meeting arranged to discuss how marginalized student groups face compounded difficulties when reporting sexual violence. For example, under current regulations, international students who wish to make academic accommodations because of a sexual assault must disclose specific medical and mental health evidence to schools and government officials who are often untrained in responding to sexual violence. Additionally, undocumented students face extraordinary difficulties when reporting sexual violence to schools and the Department. We insist that the Department provide proper training to officials to ensure these marginalized student groups do not face additional burdens when reporting sexual violence under Title IX. We call for a specific timeline to ensure these trainings are occurring so that we know all students are protected when exercising their rights under Title IX.
We are grateful for this Administration’s commitment to combating campus sexual violence, as articulated most strongly in the 2011 “Dear Colleague Letter,” and most recently in your presence at the ED Act Now rally. As the organizers of that rally, we hope that our responses herein continue to move us forward in a partnership to create safer and more just campuses — and, ultimately, to end sexual violence.
The Organizers of ED Act Now