Historic OCR Determination Involving Wesley College of Delaware SAVE November 11, 2016 In the past, the federal Office for Civil Rights (OCR) has been known for its aggressive policy-making and enforcement activities that served to attenuate the due process rights of students accused of sexual assault. In Fall 2016, the OCR seemingly changed course, issuing a Determination Letter37F and Resolution Agreement38F that revealed Wesley had committed a series of investigational and adjudicative blunders. The OCR investigation arose from a Wesley College student who was accused of livestreaming a sexual encounter among several students (the sexual encounter was consensual, the live-streaming was not). The student s expulsion without a meaningful opportunity to present his version of events resulted in a complaint to the Office for Civil Rights. Writing in an unusually blunt manner, the OCR Determination Letter concluded (pages 23-24): OCR determined that the accused Student was entitled to procedural protections that the College did not afford him. In processing the complaint against the accused Student, the College did not satisfy Title IX, the College did not comply with its own procedures and, in fact, the College acted in direct contradiction of its procedures and as a result the resolution of the complaint was not equitable. The College s failure to interview the accused Student impacted the College s investigation and resolution of the accused Student s case. Without any information regarding the accused Student s responses to the allegations, the College was limited in its ability to obtain all potential relevant evidence, which, in turn, made the decisions it undertook potentially based on insufficient information. Likewise, the College s failure to share information with the accused Student, as well as the College s provision of misinformation (the incorrect policy) to the accused Student, limited his ability to fully participate in the process. Finally, the College s deviation from its own process, as well as from process that would be consistent with Title IX, in the conduct of the hearing itself prevented the accused Student from receiving equitable treatment as required by Title IX. Specifically, OCR s investigation disclosed evidence that the resolution of the complaint was not equitable in several ways: The accused Student was not given an opportunity to share his version of events and to benefit from an investigation of the accuracy of that version of 1
events. Because the College skipped the step in its policy providing for an educational conference at which accused students could be interviewed, the College could not have investigated and did not investigate facts the accused Student may have presented. In addition, because this step in the process never took place (coupled with the failure, discussed below, to share the incident report with the accused Student), the accused Student did not benefit from notice, in advance of the hearing, of the scope of issues under investigation and the information he could rebut if he so chose. The Washington Post summarized the case this way:39f1 [F]ew, if any, of the alleged violations of a student s rights compare in egregiousness to what happened at Wesley College in Delaware, as described in findings by the U.S. Department of Education s Office of Civil Rights (OCR) made public Wednesday.In this case, the OCR found virtually everything wrong and, therefore, a violation of Title IX s protections against discrimination. Because of the broader significance of this OCR action, SAVE has summarized the key points of the 29-page Determination Letter and 18-page Resolution Agreement, below. Determination Letter 2 Recitation of the timeline of events: March 20-22, 2015: Incident allegedly occurred sometime during this weekend March 31, 2015: Complainant reported the incident to the school April 1: School notified student he was charged with violating policy April 7: School Judicial Board expelled student On May 14, 2015 the accused student filed an OCR complaint against school. The complaint alleged that the accused student didn t participate in the planning or implementation of the live streaming. After being notified of the complaint, the student was told to attend what he understood was an educational conference, during which he would be given the opportunity to explain his version of the events. 1 Fred Barbash, College Expels Student for Sex Misconduct without Bothering to Interview Him, Draws Sharp Government Rebuke, WASHINGTON POST, Oct. 13, 2016, available at https://www.washingtonpost.com/news/morning-mix/wp/2016/10/13/egregious-unfairness-to-student-insexual-misconduct-case-brings-unusual-government-rebuke/. 2 OFFICE FOR CIVIL RIGHTS LETTER TO ROBERT E. CLARK, Oct. 12, 2016, available at: http://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/03152329-a.pdf 2
Instead, in violation of Wesley College s own procedures, the meeting turned out to be the formal hearing. As a result, the accused student was not prepared to defend himself, nor did he bring any witnesses to testify on his behalf. The complaint alleged the College violated Title IX by failing to conduct an equitable investigation and resolution of the allegation. During its subsequent investigation, OCR reviewed documentation provided by the Complainant and the College, including relevant policies and procedures; reviewed case files relating to 12 previous allegations of sexual harassment and sexual violence from August 2013 through April 2015; conducted an on-site visit to the College; and conducted interviews with the accused student, other students, and staff. OCR found that the College failed to provide for adequate, reliable, and impartial investigations and resolutions of complaints: The imposition of the interim suspension before interviewing the accused student violated Title IX, as well as the college s own procedures (Pages 24 and 27) In six of the 12 previous incidents, interim suspensions were imposed the same day as the initial allegation was made to the school, with no evidence of a determination as to whether the suspensions were warranted (Page 26) The college s expedited investigation in the present case may not have provided sufficient time for the student to effectively participate in the disciplinary process (Page 26) In seven of 12 previous incidents, there was no evidence that the complainant was provided with counseling or academic services, as required by Title IX (Page 27) In none of the 12 incidents was documentation provided to substantiate the assertion that the complainants received notice of the outcomes of their complaints (Page 27) The OCR also expressed concerns with: The school s Notice of Non-Discrimination did not comply with Title IX because it failed to identify the individual at the College responsible for investigating and resolving Title IX complaints, and because the Notice wasn t widely publicized (Page 3) Wesley College s failure to maintain the hearing recording or transcript, which inhibited both OCR s review as well as the college s own reassessment of the fairness of its procedures (Pages 18-19) The college s failure to share evidence and written findings with the accused student (Page 24) 3
Resolution Agreement 3 The highly detailed Resolution Agreement is organized into 12 sections, lettered A to L, which delineate many dozens of requirements. The precise number of requirements is difficult to ascertain because in some sections, the requirements are numbered, while in other sections they are embedded within narrative paragraphs. The most important requirements are highlighted below. A. Sexual Misconduct/Title IX Grievance Procedures Wide distribution of adequate notice to students and employees of Title IX procedures, including where and with whom complaints may be filed, examples of sexual misconduct, available resources for both parties, and reporting options including law enforcement. (Requirement numbers 1, 2, 3, 4, 17, and 18) Explanation of confidentiality policies, when it might be necessary for the disclosure of certain information, what types of documents are confidential, which employees may protect confidentiality, and that Title IX may require the school to proceed with an investigation even though the complainant has asked not to proceed. (Numbers 5, 10, 23, and 33) Provisions providing for an adequate, reliable and impartial investigation of all complaints prior to a hearing, which will include interviews with the victim and the accused, and any relevant witnesses, and a review of any other relevant evidence, an equal opportunity for the parties to present witnesses and other evidence and equal access to information being considered in the grievance process (consistent with FERPA) (Numbers 7 and 8) An explicit statement that the College will consider the effects of off-campus conduct when evaluating whether there is a hostile environment on campus (Number 9) A provision that the parties must be notified of the available informal resolution options, and their descriptions, including mediation, resolution without a hearing, and formal hearing, as well as an explanation that mediation is not available when the allegations include sexual violence. (Numbers 11 and 12) Descriptions of investigation and hearing procedures, including: Prohibitions on cross examination by the parties (Number 13) Use of the preponderance of evidence standard (Number 14) Excluding students serving on hearing panels unless they are adequately trained (Number 15) 3 OFFICE FOR CIVIL RIGHTS RESOLUTION AGREEMENT WITH WESLEY COLLEGE, Sept. 30, 2016, available at: http://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/03152329-b.pdf 4
Reasonable timeframes (Number 16) Notice of available no contact orders and interim measures (such as counseling, housing assistance, academic adjustment or other academic assistance, and stay away orders), how to obtain them, and that they will not disproportionately impact the complainant. (Numbers 19, 20, 21, and 26) Compliance with law enforcement requests for cooperation which may require the College to temporarily suspend the fact-finding aspect of a Title IX investigation until it is notified by the law enforcement agency that it has completed the evidence gathering process. (Number 22) Parties are not restricted from discussing and sharing information related to their complaints with others that may support or assist them in presenting their case (Number 24) Written notice of outcomes (Number 25) Equal opportunities to an appeal conducted by a trained, impartial decisionmaker (Number 27) Examples of the range of possible disciplinary sanctions and the types of remedies (Number 29) Ensuring the sufficient level of inquiry in determining the appropriateness of interim suspensions (Number 30) Interplay between other disciplinary infractions (such as underage drinking) and sexual misconduct determinations. (Number 31) Provisions about the relevance of sexual history between the parties when consent is an issue (Number 32) Prohibition on retaliation (Number 34) B. Nondiscrimination Statement Revisions to and broad publication of the notice of non-discrimination to state that the College does not discriminate on the basis of sex, including the name, title, office address, telephone number, and email address of the Title IX Coordinator(s). C. Policy Review The College will review and revise, its procedures to ensure that they are consistent with Title IX. D. Title IX Coordinator The College will review and revise the responsibilities of its Title IX Coordinator and Deputy Coordinators to ensure that their responsibilities are consistent with Title IX and develop a description of corresponding mandatory training requirements for its Title IX Coordinators. E. Sexual Misconduct/Title IX Training 5
1. Training for Employees Responsible for Recognizing and Reporting Sexual Misconduct The College will provide training to all staff responsible for recognizing and reporting incidents of sexual harassment including resident advisors, campus police, faculty, administrators, counselors, general counsels, athletic coaches, health personnel, and any other responsible employees, who are not confidential resources under policy or applicable law. (Lists training requirements) 2. Training for College Community Members Involved in Grievance Procedures The College will provide its Title IX Coordinators and any other College officials/students directly involved in any aspect of the process (Lists training requirements) 3. Hearing Panel Training All Board Hearing panel members appointed by the College must receive training before they can participate in the review of a case. The College will develop and provide training to all Board Hearing panel members. (Lists training requirements) 4. Training for Students The Resolution Agreement included seven additional sections: F. Dissemination of Information Regarding Sexual Misconduct G. Campus-Based Committee H. Climate Checks I. Complaint Reviews J. Tracking of Complaints K. Recordkeeping L. Monitoring 6