A Brief Guide to Title IX Compliance for Study Abroad
Notes from Dr Ann Olivarius' Keynote Speech
Association of American Study Abroad Programs (UK) Meeting
10 October 2014
At the request of meeting attendees, McAllister Olivarius has prepared notes based on Dr Ann Olivarius' presentation on Title IX compliance issues for study abroad programs.
Title IX gained prominence originally as a way to ensure equal access for women to the athletic programs of schools and universities, and, indeed, has significantly improved female sports participation in the United States. According to the New York Times, the year before Title IX was enacted, there were about 310,000 girls and women playing high school and college sports; by 2012, that number had multiplied almost tenfold. However, the law has broad application, as its core provision makes clear:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
In the last 40 years, Title IX has radically expanded beyond athletics to promote equal access for women in all areas of education. Perhaps most significantly, Title IX has been expanded to cover sexual assault and harassment.
Title IX has become a hot-button issue thanks to campus activists and ground-breaking litigation. Today, it is more important than ever that universities make sure they are in compliance both at home and in their study abroad programs.
- An invisible epidemic that has existed for decades on campuses is starting to become more visible – according to current best estimates, one in six students will be a victim of rape or attempted rape, and the culture of silence is starting to fall apart.
- The regulatory environment is getting more serious. President Obama's task force spurred Congress to consider legislation to improve information-gathering, institute standardised reporting and disciplinary procedures, and financial penalties for violations.
- Right now over 55 universities are under investigation by the federal government for mishandling sexual assault cases.
In the current climate, the stakes are high - colleges can face press coverage, expensive litigation or time-consuming investigation if they fail to adequately deal with student complaints of sexual assault or harassment – and the standard of adequacy is set by the government.
What happens if you don’t do the job the government has set out for you?
- Financial penalties that can be significant and probably not covered by your insurance carrier
- Civil law suits
- Severe reputational damage
- Time and resources will have to be spent on time-consuming investigations if universities fail to adequately deal with student complaints of sexual assault or harassment.
Some recent high-profile stories:
- Emma Sulkowicz, a Columbia University student, is carrying her mattress around campus as a protest at the mishandling of her rape complaint. She has become a poster-woman for sexual violence activism in the US and her story has been picked up by almost every major news outlet, putting a great deal of pressure on the institution.
- Jameis Winston is the star quarterback at Florida State University, who allegedly sexually assaulted a student. The University allegedly ignored its obligations to investigate the complaint, and the police neglected to investigate for 9 months. The extreme uninterest of the University in pursuing charges against him became the subject of an expose in the New York Times and a national story. The student is now working with attorneys and looking at legal options to recover damages from both Winston & FSU, which could be millions of dollars.
TITLE IX AND STUDY ABROAD: AN OVERVIEW
Types of Title IX Cases
In Title IX litigation, we tend to see three types of behaviour: student-student, stranger-student and professor-student.
Student-student and stranger-student sexual violence
The dynamics of study abroad programs mean that student-student sexual assault may be curtailed by social constraints - they are often close-knit programs, and students are mostly going to be familiar with one another, so the costs of violent behaviour are higher to the perpetrator. On the other hand, they are away from familiar environs and on “an adventure” in a foreign country.
Risk factors for stranger-student violence include:
- The students are foreigners, not in familiar territory; they may not understand local social signals, how to get around safely at night, or where they can turn for advice and help. Also, drinking ages are lower in Europe than in the US.
Detailed Case Study - 2014 University of Connecticut Lawsuit
The University of Connecticut recently settled a case involving several plaintiffs for $1.3m. One of the plaintiffs had suffered sexual assault when she was on a study abroad programme.
The University of Connecticut recently settled a case involving several plaintiffs for $1.3m. One of the
plaintiffs had suffered sexual assault when she was on a study abroad programme.
The facts of the UConn case:
- The plaintiff was on a study abroad program with UConn in Grenada, Spain.
- The program was managed by UConn and students were charged UConn tuition.
- The plaintiff was hospitalised with an intestinal disease early in the programme.
- The Resident Director suggested that it was due to too much alcohol, even though the doctor did not concur with the diagnosis.
- At a school meeting, the Resident Director threatened to send people home if they got themselves into "bad situations".
- This made the plaintiff and others fearful of making sexual harassment complaints.
- The plaintiff then experienced two incidents of sexual assault:
- she was groped by a man on the street;
- She was groped a second time by a man in the elevator of her apartment building.
- When other students reported incidents to the Resident Director, she would brush them off.
- The students who reported assault and harassment organised an advocacy project when they returned to UConn, with the assistance of an administrator from the study abroad office.
Why was UConn vulnerable in this case?
- It provided no training for students on the risks of sexual assault and how to avoid it.
- It provided no training for the resident director in how to counsel victims or report.
- The Resident Director did not take action when other students reported incidents.
- The students disclosed their stories to the administrator who helped them set up the advocacy project. But the administrator didn't report any of the incidents up to the University’s Title IX Coordinator despite the fact that she was a “mandatory reporter” under the law.
For those managing study abroad programs, the risks and responsibilities connected with Title IX compliance are particularly acute. Women who are sexually assaulted abroad not only face the trauma associated with assault, but also face it in greater isolation, separated from most of their closest friends, mentors and family members. The practical result is that universities can expect study abroad students to want well-functioning systems of reporting and support.
Arguably more important than reporting or redressing is prevention. Study abroad students are at a much higher risk than their on-campus counterparts. For example, a 2013 study published in the journal Psychological Trauma: Theory, Research, Practice and Policy showed that female undergraduates experience a significantly increased risk of rape and other forms of sexual assault while studying abroad.1
- This article was based on a survey of 218 female undergraduates at a single institution.
- 27% of students reported at least one instance of unwanted touching while abroad; 6% reported an attempted sexual assault, and 5% reported rape.
- Researchers also calculated the "semester risk" - that is, the percentage of the sample that was likely to have an unwanted sexual experience during a given semester.
- The risk of rape was found to be five times higher during a semester abroad compared to a semester on campus
- The risk of attempted sexual assault was 3.2 times greater
- The risk of unwanted touching was 4.3 times greater.
Clearly, prevention of these incidents is better than having to deal with them, both for the student and the university.
What are the key things to consider when thinking about training, monitoring and mentoring participants in study abroad programs?
- Alcohol: rarely do you find a sexual assault case with college students where alcohol isn't involved.
- Host countries usually have a lower drinking age
- A sense of experimentation and living beyond normal constraints may be part of the attraction of study abroad programs.
- Lack of familiarity with culture and surroundings: generally, people are more vulnerable (and appear more vulnerable) in unfamiliar surroundings. Repeat perpetrators of sexual violence will be able to recognise this vulnerability.
Sexual harassment by faculty of students -- which in many cases begins with some kind of consensual relationship - constitutes a substantial proportion of Title IX cases. These may also be more prevalent in study abroad programs, because:
- most non-US countries don't have frameworks similar to Title IX, and faculty may not have the same concerns or training about teacher-student relationships;
- foreign universities, from which faculty may be drawn, may not have policies on the subject or very different ones from US universities.
WHAT ARE THE REGULATIONS REGARDING TITLE IX?
The law is not settled in this area.
Prudent administrators would do well to assume that all federal laws and regulations that apply to college and university programs in the US will continue to apply abroad.
- Title IX specifically applies to "any program or activity receiving federal financial assistance", courts have interpreted the statute to include universities' overseas programs (King v. Bd of Control, 221 F.Supp 2d 783). This is the only reported case to address whether Title IX's operates outside US territory to American students at US institutions. Subsequent cases have found it does not apply to foreign universities despite American ties, and the Supreme Court has generally been restricting the “extraterritorial” application of US law abroad. Congress did not explicitly state that Title IX applies abroad, which is usually required for a law to be given extraterritorial application. However, the fact that study abroad programs are extensions of a US university experience, with tuition (usually) paid as usual to the home university, academic credit being awarded, and staff reporting back to the home university, give these programs a high likelihood of being subject to Title IX. It is prudent for legal, financial and reputational reasons to assume that it will apply, and in so doing the study abroad program may also protect students against painful experiences and protect the university’s reputation.
Requirements under Title IX for college administrators:
- Identify the scope of the problem through campus climate surveys, which assess the prevalence of sexual violence and attitudes about it
- Work towards preventing sexual violence
- Respond effectively when a student is sexually assaulted/harassed
- Provide a safe learning environment for all its students.
1. Reporting obligations
- University employees are obliged to report incidents of sexual violence to school officials (a Title IX coordinator must be appointed in every university receiving federal funds).
- The University must identify and publicize the names of certain “responsible employees” -- those who have been given the authority to take action to redress sexual violence, or given the duty to report, or whom a student could reasonably believe might have this authority or duty.
- Responsible employees are obliged to report the names of the people involved in any incidents reported to him/her, and any relevant details of the incidents, to the Title IX
- Before a student reveals information that they may wish to keep confidential, the staff member should notify the student that certain details may have to be reported to others.
It's important to make clear who the "responsible employees" are in your study abroad program are.
This category should include at least the program director, but it's good practice to have a number of responsible employees, so that there aren't any gaps.
2. Conducting Investigations
The Department of Education’s 'Dear Colleague Letter', which provides formal guidance on Title IX compliance, says that an investigation into an incident should normally be completed within 60 days.
- This includes the entirety of the investigation namely,
- holding a hearing or another decision-making process, and
- imposing discipline and organizing relief for the victim, if appropriate.
- Complainant must be apprised of the status of the investigation and disciplinary process if applicable.
- Complainant must be notified of case outcomes.
Courts have confirmed the right that colleges have to discipline students for behaviour that occurs on or away from the main campus. In Title IX cases, punishments can include:
- no-contact orders (to separate complainant from perpetrator)
- expulsion and other sanctions.
How to manage this process?
- HAVE A POLICY!
- Have some form of written procedure and follow it.
- This permits the University to explain its actions to students who may find the experience traumatic and be upset at whatever outcome the process reaches
- Make sure the procedure reflects due process considerations –
- the need to have sufficient opportunity to respond to allegations.2
- This does not always involve a formal hearing, but if one is held, both the complainant and alleged perpetrator may be assisted by others, including attorneys
- In some cases, a simple meeting with an administrator can be OK.
- Staff must be trained how to administer the policy.
4. Interim measures and remedies to protect the student
What do you do to support a student who has experienced sexual violence?
- There is no mandated system under the law, but experience demonstrates a number of things you can and should be doing
- Medical care
- Assuring day-to-day safety
- Organizing escorts
- Ensuring that they can be kept separate from the perpetrator
- Arranging alternative accommodations
- Paying to return a student to the US or for parents to come and visit.
Note: The UK police has 'Specially Trained Officers' who are trained to interview survivors of sexual violence; they are a free resource.
Note that Title IX procedures may operate in parallel to local law, including police investigation, arrest and criminal charges.
The White House Task Force recommendations include a new provision: Schools will be prohibited from punishing a student who admits to another rule violation (like underage drinking) as they report their assault.
5. Clery Act responsibilities
Study abroad programs may have reporting responsibilities under the Clery Act, so it should have someone trained in Clery.
The revised Clery Act requires universities to report to the US government the following acts that occur “on campus” (which has a complex definition):
- Sex crimes
- Aggravated assault
- Arrests or referrals for campus disciplinary action for liquor and drug law violations
- Certain hate crimes
- Illegal weapon possession
- Motor vehicle thefts
This information must be made public in an Annual Safety Review. The definition of 'on campus' depends on each university's policies, so it is a good idea to have your own procedures for reporting this information.
Previously, the Clery Act covered only sexual assault.
Recently, Section 304 of the Violence Against Women Reauthorization Act of 2013 added the mandatory reporting by universities of:
- domestic violence
- dating violence
Clery Act violations can result in fines of up to $35,000 for each violation. Students cannot sue a university for violating the Clery Act, but penalties are going up.
THREE KEY QUESTIONS TO EVALUATE YOUR PROGRAM
1. What are you doing to prepare staff?
Staff are often the area of greatest risk to a university, because their failures are attributed to the institution. Educating students in prevention is important, but educating staff is vital.
- Administrators are often unaware of their obligations to the students & university under the law –
- what do administrators have to report to the university,
- what do administrators have to tell the students?
2. What are you doing to prepare students?
The Violence Against Women Reauthorization Act places obligations on colleges to train incoming students in the following areas:
- rape, acquaintance rape, domestic violence, dating violence, sexual assault & stalking, definitions of consent, and the sanctions or protective measures that are available to them.
- Also, the 2014 guidance from the OCR states that the school should provide training on Title IX and sexual violence, including what constitutes sexual violence, what the reporting options are, and any confidential reporting options.
All of this should have been covered already in the students' initial freshman orientation, but study abroad programs would be prudent to conduct further orientation covering three key areas:
Very rare that an incident of sexual violence happens without alcohol involved.
- Students must understand that under law, If she is drunk, she cannot consent. It is a crime to have sex when a woman cannot consent.
b) Previous sexual relationship
- Does not itself imply consent or preclude a finding of sexual violence
- Make sure that the students know what to do if anything happens to them - who they should talk to, what will happen if they report, what kinds of remedies they will have available to them if they complain.
- A criminal investigation does not relieve a school of its duty to itself investigate and respond
- The school is obliged to protect complainants from reprisals
Orientation should NOT stop once the student has arrived at the study abroad program.
3. Are you conducting evaluation?
Another area of best practice - ongoing evaluation
- Make sure you ask your students what they have experienced, and what your program can do to improve their experience in the future. Use confidential questionnaires so that there is honest reporting of events.
- The State University of New York system has developed a “federal” approach to problems of sexual violence, creating solutions based on the problems arising on each campus.
- after receiving notice of two assaults abroad, SUNY Purchase took action to provide extra training for study abroad students
- SUNY Delhi reported that it was adopting 'healthy breakups training' after it noticed a trend involving ex-boyfriends and ex-girlfriends.
The moral of this story: collect your own research, and take initiative to find the correct solutions.
1 Study abroad increases risk for sexual assault in female undergraduates: A preliminary report. Kimble, Matthew; Flack Jr., William F.; Burbridge, Emily Psychological Trauma: Theory, Research, Practice, and Policy, Vol 5(5), Sep 2013, 426-430.
2 Goss v. Lopez, 419 U.S. 565