INTRODUCTION
Numerous studies indicate that the prevalence of sexual assault among college women is alarmingly high, with estimates suggesting that up to 25% will experience sexual assault or rape during their academic journey.
A national study by Fisher et al (2000) found that on a college campus with around 10,000 women, approximately 350 rapes or attempted rapes occur annually, highlighting the alarming prevalence of sexual misconduct in higher education institutions.
Colleges and universities must adhere to Title IX of the Education Amendments of 1972, a federal law that prohibits sex-based discrimination in federally funded education programs Discrimination involves unfair treatment of individuals based on characteristics like gender, exemplified by disparities in scholarships and athletic budgets between female and male athletes Additionally, Title IX addresses issues of sexual violence, encompassing sexual coercion, harassment, assault, and rape.
In May 2014, the U.S Department of Education’s Office for Civil Rights (OCR) identified 55 higher education institutions under investigation for potential Title IX violations related to sexual violence complaints By May 2016, the number of institutions on this list significantly increased, highlighting the growing challenges colleges and universities face in implementing Title IX effectively Many institutions have voiced frustrations over the unclear guidance provided by OCR, which may contribute to their noncompliance Consequently, this study examines the content of OCR’s letters of findings (LOFs) to analyze how OCR defines Title IX noncompliance.
The 2011 Dear Colleague Letter (DCL) serves as a crucial guidance document emphasizing the responsibilities of higher education institutions in addressing sexual harassment and sexual assault Ultimately, this study delineates the Office for Civil Rights' (OCR) expectations regarding Title IX compliance for college and university administrators.
Title IX of the Education Amendments of 1972 is a federal law that ensures equal opportunity in education by prohibiting sex-based discrimination in programs receiving federal funding (20 U.S.C § 1681) While often associated with athletics, Title IX encompasses a broader scope, including the prohibition of sexual misconduct, such as harassment and assault (U.S Department of Education, 2016) Educational institutions are mandated to take immediate action upon learning of any incidents of sexual harassment or assault to prevent recurrence (Koss, Wilgus, & Williamsen, 2014) The Office for Civil Rights (OCR) enforces Title IX, allowing students and employees to file complaints for investigations or pursue private lawsuits for damages (Rammell, 2014).
Prevalence of Sexual Assault and Mishandling Allegations
Sexual assault is alarmingly prevalent on college and university campuses in the United States, with studies indicating that around 20-25% of college women will experience sexual assault during their undergraduate years.
Sexual assault remains a significant issue on college campuses, with research indicating that only 20-25% of victims report their experiences, suggesting the actual number of victims may be much higher (Fisher et al., 2010; Sloan, Fisher, & Cullen, 1997) This troubling trend spans various types of institutions, including private, religious, two-year, and for-profit colleges and universities, highlighting the pervasive nature of sexual misconduct in higher education (Karjane, Fisher, & Cullen, 2002).
Some may argue these statistics are archaic However, recent studies show results that are similar to previous research In a study conducted by the Bureau of Justice
Statistics show that 21% of college women have experienced sexual assault since starting college, yet many victims do not report these incidents Research identifies several barriers to reporting, including feelings of shame, the context of the assault, fear of negative reactions, and a lack of awareness about available resources Additionally, students have expressed concerns that higher education institutions often cover up sexual assault allegations, which further discourages reporting Sexual assault is not just a campus issue; it is a serious crime and a national concern, prompting legal requirements for educational institutions to take action Mishandling or failing to address these cases can lead to severe consequences.
What Happens when HEIs Mishandle Sexual Misconduct?
The Penn State-Jerry Sandusky scandal highlights the severe repercussions institutions face when they neglect to address sexual misconduct on their campuses Jerry Sandusky, a former assistant football coach, abused children on university grounds, and the subsequent Freeh Report revealed that senior officials, including the head football coach and university president, failed to act despite being aware of the abuse This inaction fostered an environment that allowed the abuse to persist As a result, key administrators, including President Spanier, were ousted from their roles and faced criminal charges, including perjury and obstruction of justice.
In 2014, Jerry Sandusky was convicted of 45 counts of child sexual abuse and is now serving a prison sentence of 30 to 60 years This conviction led to significant negative publicity for the university, resulting in a financial fallout that included millions spent on court fees and settlements.
The Penn State scandal and the 2011 Dear Colleague Letter (DCL) prompted higher education institutions to reassess their policies to prevent sexual violence on campuses However, incidents continue to occur, as evidenced by the cases at Baylor University and the University of Tennessee In 2015, Baylor faced allegations from six women against football players, revealing that university officials not only failed to respond but also discouraged victims from reporting Similarly, the University of Tennessee was sued by women who claimed that administrators neglected to take action against accused students, highlighting ongoing challenges in addressing sexual assault in higher education.
Statement of the Problem While scholars have studied and discussed Title IX compliance in regard to gender equity and intercollegiate athletics (Anderson, Cheslock & Ehrenberg, 2006;
While there is substantial research on sexual harassment and assault regarding disclosure, reporting, prevention, and education, there is a notable lack of literature specifically addressing Title IX's application to sexual misconduct Few studies focus on institutional sexual assault policies for federal compliance, and existing data on Title IX noncompliance primarily comes from media reports and the Office for Civil Rights (OCR), rather than academic sources The rising number of federal complaints and Title IX investigations highlights the significant challenges colleges and universities face in adhering to these requirements To effectively tackle Title IX noncompliance related to sexual misconduct in higher education, it is crucial for researchers, administrators, and the public to deepen their understanding of this pressing issue.
This study aims to explore the Office for Civil Rights' (OCR) interpretation of Title IX noncompliance and its expectations for Higher Education Institutions (HEIs) By analyzing current trends in Title IX noncompliance, the research investigates how HEIs address reports of sexual assault Additionally, the study seeks to extract valuable insights for future policy and practice by learning from the noncompliance issues faced by various institutions.
Colleges and universities are struggling to comply with Title IX effectively, as highlighted by Erin Buzavis, Director of the Center for Gender & Sexuality Studies at Western New England University She suggests that these compliance failures stem from administrators' misconceptions about integrating Title IX with law enforcement Additionally, some argue that the complexity of the law and the Department of Education's mandates contribute to the confusion Higher education institutions express frustration over the guidance provided for Title IX compliance, indicating a lack of clarity in how to meet these requirements.
IX based on OCR’s guidance (New, 2015) These frustrations demonstrate HEIs misunderstanding about OCR’s Title IX requirements
LITERATURE REVIEW
S Department of Education’s Office for Civil Rights Title IX Guidance
Title IX is administered by the Office for Civil Rights (OCR), one of several offices within the U.S Department of Education (Kaplin & Lee, 2007; U.S Department of Education, 1997) The U.S Department of Education distributes federal tax dollars to educational institutions for different educational programs OCR is responsible for enforcing laws requiring nondiscrimination by institutions receiving federal dollars Therefore, OCR has the legal authority to enforce and interpret Title IX (U.S Department of Education, 2011) So, not only can HEIs end up in an expensive battle because of a
Title IX civil lawsuit, but the law also allows for the possibility of the removal of federal dollars OCR’s main headquarters is located in Washington, D.C, but there are 11 enforcement offices located in major cities across the country, such as Dallas and
In Philadelphia, each enforcement office is tasked with conducting investigations, compliance reviews, and providing technical assistance within its designated area The headquarters office supervises all enforcement activities and is responsible for publishing policies and regulatory guidance to assist educational institutions, referred to as recipients, in understanding their obligations under Title IX.
These documents have been relatively noncontroversial, with the exception of the
The 2011 Dear Colleague Letter, issued by the Office for Civil Rights (OCR) without the typical notice and comment rulemaking process, reflects the evolution of Title IX influenced by societal and political factors, aligning with social constructionist views Following landmark court rulings and increasing public concern over sexual harassment in schools, OCR released guidance documents in 1997 and 2001 that outlined Title IX requirements regarding sexual harassment and violence The 2011 guidance emphasized strict enforcement of Title IX obligations under the Obama Administration, while subsequent guidance in 2014 and 2015 addressed higher education institutions' frustrations and misunderstandings related to Title IX compliance in sexual violence cases.
Incorporating the criteria set in Franklin v Gwinnet County Public Schools, OCR published their first guidance document, “Sexual Harassment Guidance: Harassment of
The U.S Department of Education's 1997 guidance document on sexual harassment in schools, developed through extensive consultations with educators, students, and researchers, clearly defines sexual harassment and outlines the applicability of Title IX It specifies the conditions under which schools may be held liable for such incidents, emphasizes the importance of having effective grievance procedures, and addresses the critical issue of confidentiality.
Sexual harassment encompasses two main types: quid pro quo and hostile environment harassment Quid pro quo harassment occurs when a school employee conditions educational decisions or participation in programs on a student's submission to sexual favors or advances In contrast, hostile environment harassment involves severe, persistent, or pervasive sexually harassing behavior from employees, students, or third parties that significantly hinders a student's ability to engage in educational activities, creating an abusive atmosphere.
Title IX, as outlined in the 1997 guidance, applies to all public and private educational institutions receiving federal funds, covering elementary, secondary, and higher education The guidance highlights that institutions may be held liable for sexual harassment if a reasonable employee, with the authority to address the issue, is made aware of the harassment through actual or constructive notice Constructive notice is established when a school should have known about the harassment based on reasonable inquiry.
The Office for Civil Rights (OCR) emphasized the necessity of implementing grievance procedures for students to report sexual harassment effectively Institutions must ensure these procedures are prompt and equitable by providing clear information on how to file complaints, establishing reasonable timelines for the complaint process, and notifying relevant parties of the outcomes OCR highlighted that these procedures should be accessible, easy to understand, and impartial Additionally, the 1997 guidance document addressed confidentiality concerns, acknowledging that complainants may request confidentiality, which could limit institutional responses OCR advised institutions to communicate confidentiality standards and the prohibition against retaliation under Title IX, reassuring students that measures will be taken to prevent retaliation and respond swiftly if it occurs However, OCR also urged institutions to carefully consider confidentiality requests, as they still bear the responsibility to maintain a safe environment for all students.
Not only was OCR influenced to provide Title IX guidance to institutions because of the ruling that was made five years earlier (Franklin v Gwinett County Public School,
In the early 1990s, public concern over sexual harassment in educational institutions intensified, revealing that Title IX had largely failed to address the sexual victimization of women Initially designed to prohibit sex discrimination, Title IX had evolved into a law focused primarily on equal opportunities in athletics since the 1970s As a result, the Office for Civil Rights (OCR) needed to emphasize that sexual harassment constitutes a form of sex discrimination and is therefore prohibited under Title IX.
In 2001, the Office for Civil Rights (OCR) updated its guidance on sexual harassment following key Supreme Court rulings in Gebser v Lago Vista Independent School District (1998) and Davis v Monroe County Board of Education These decisions clarified the responsibilities of educational institutions under Title IX regarding student harassment.
Monroe County Board of Education (1999) The Revised Sexual Harassment Guidance:
The guidance document on the harassment of students by school employees, peers, or third parties reiterates the compliance standards for investigations and administrative enforcement, while clarifying the distinction between an institution's Title IX responsibilities and the criteria established by Supreme Court cases for private litigation seeking monetary damages.
Before the 2001 revision, the Secretary of Education communicated to school superintendents and college presidents that the Supreme Court's ruling in Gebser v Lago Vista Independent School District did not alter a recipient's obligations.
(school/college/university) responsibilities to take reasonable steps to prevent and eliminate sexually harassing behavior Unlike the ruling in Gebser (1998) and Davis
In 1999, the Office for Civil Rights (OCR) established that recipients of Title IX did not require "actual notice" of sexual harassment, as they were still accountable under "constructive notice." Following recent Supreme Court rulings, OCR recognized the need for further clarification of Title IX responsibilities In November 2000, OCR published proposed revisions to the 2001 guidance in the Federal Register, inviting public comments in accordance with standard rulemaking procedures Eleven commenters provided suggestions for enhancing the clarity of the revised guidance, which OCR incorporated into the final version released on January 19, 2001.
In the 2001 revision of sexual harassment guidance, the definition shifted to encompass any unwelcome sexual conduct that restricted a student's ability to engage in educational activities and fostered a hostile environment (U.S Department of Education, 2001) The Office for Civil Rights (OCR) established criteria for determining the presence of a hostile environment, considering factors such as the impact of harassment on the student, the nature and frequency of the conduct, the demographics of those involved, and the context of the incidents A significant change from the 1997 guidance was the emphasis on "notice," indicating that schools violate Title IX if they are aware of a sexually hostile environment and do not take immediate and effective action Additionally, the 2001 revision clarified the definition of a responsible employee, identifying them as individuals who not only have the authority to address and report sexual harassment but also those whom students reasonably believe possess such authority.
On April 4, 2011, the OCR released a 19-page Dear Colleague Letter (DCL) to remind educational institutions of their Title IX obligations regarding sexual harassment This document, while reflecting earlier guidance, introduced notable changes, emphasizing the importance of publishing non-discrimination notices, implementing appropriate grievance procedures, and appointing a Title IX Coordinator as preventive measures against harassment Notably, for the first time, the OCR defined sexual violence—encompassing sexual assault, sexual battery, sexual coercion, and rape—as a form of sexual harassment prohibited under Title IX.
METHODOLOGY
This chapter outlines the research methodology employed in this study following the completion of a Title IX investigation by OCR It begins with a concise statement of the study's purpose and research questions, followed by an in-depth description of the data collection and analysis methods utilized, as well as the strategies implemented to ensure the trustworthiness of the findings.
This study aims to explore Title IX noncompliance in higher education institutions (HEIs) regarding their handling of sexual misconduct Utilizing a social constructionist approach, the research analyzes the Office for Civil Rights' (OCR) Letters of Findings (LOFs) to identify themes related to noncompliance Social constructionism, a sociological theory posited by Burr (2005), emphasizes how individuals shape their understanding of social issues through experiences and interactions, rather than directly explaining sexual misconduct or organizational compliance By applying this framework to thematic analysis, the study seeks to uncover the underlying factors that define Title IX noncompliance The research questions focus on identifying these themes within the context of HEIs' responses to sexual misconduct.
1 What discernable trends are identified in OCR’s published LOFs since the issuing of the 2011 Dear Colleague Letter (DCL)?
2 How does OCR respond to HEIs regarding how sexual misconduct complaints are handled under Title IX?
3 How does the information found in letters of findings (LOFs) between April
2011 and September 2016 overlap with or add to previous guidance documents provided by OCR?
Document analysis is a qualitative research method that serves as a primary data collection approach, often utilized for triangulation alongside other methods but also effective as a stand-alone technique (Bowen, 2009) This method is particularly suitable in contexts like historical, legal, or hermeneutic research (Merriam, 2009) In this study, which aimed to explore Title IX noncompliance, documents detailing the Office for Civil Rights' (OCR) interpretation of Title IX violations were identified as the most credible data source Consequently, the OCR's Letters of Findings (LOFs), released following the 2011 Dear Colleague Letter (DCL), were employed as the main data source for the analysis.
LOFs were collected via the Freedom of Information Act (FOIA), a federal act which allows the public to access federal agency records (U.S Department of Education,
In 2016, heightened scrutiny on Title IX violations led to many Letters of Findings (LOFs) being made available on the U.S Department of Education's website This study did not necessitate approval from The University of Southern Mississippi’s Institutional Review Board, as it did not involve interviews with human participants Approval was obtained from the Department of Education for the study's procedures.
In September 2016, the Educational and Research Administration's department chair initiated data analysis, revealing that the Office for Civil Rights (OCR) resolved 55 cases of Title IX violations, leading to 30 Letters of Findings (LOFs) This study obtained permission and a fee waiver from OCR to utilize these LOFs for research purposes, with a complete list of the LOFs used provided in Appendix C.
The letters of findings (LOFs) from the OCR's enforcement offices serve to outline Title IX investigations and their conclusions Through thematic analysis, these LOFs were examined to uncover themes related to OCR's interpretation of Title IX noncompliance The subsequent sections provide a more detailed account of the data analysis process and the origins of the OCR's letters of findings.
Before initiating an investigation, the Office for Civil Rights (OCR) assesses all incoming complaints to confirm their legal authority to proceed Complaints may be dismissed if similar allegations are already being addressed in courts or by other agencies If an investigation is warranted, OCR notifies both the complainant and the recipient of its decision The investigation involves gathering and analyzing pertinent evidence through interviews, document reviews, and on-site visits Ultimately, OCR reaches one of two conclusions: either insufficient evidence exists to support a violation of Title IX, or the evidence indicates a failure to comply with the law A detailed Letter of Findings (LOF) is then provided to the recipient outlining the results of the investigation.
The Office for Civil Rights (OCR) is mandated to conduct periodic compliance reviews to evaluate recipients' adherence to regulations, in addition to addressing incoming complaints (U.S Department of Education, 2015) These reviews involve investigations that utilize statistical data, news reports, and insights from advocacy groups, rather than focusing solely on specific complaints The purpose of compliance reviews is to provide a broad assessment of Title IX compliance, rather than investigating individual incidents (Kingkade, 2014) Consequently, a Letter of Findings (LOF) is issued whenever OCR concludes a Title IX investigation or compliance review.
In 2011, the Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) aimed at guiding higher education institutions (HEIs) in fulfilling Title IX obligations, but it inadvertently caused frustration and confusion among administrators regarding compliance (Grasgreen, 2011; New, 2016) Consequently, only Letters of Findings (LOFs) sent to HEIs after April 2011 were included in the data analysis, as these investigations adhered to a more stringent standard.
OCR’s Letters of Findings (LOFs) typically range from 20 to 40 pages in length Qualitative data analysis methods prioritize quality over quantity, utilizing fewer participants and text documents, as the analysis process is labor-intensive (Bowen, 2009) Consequently, the LOFs released between April 2011 and October 2016 provide an adequate basis for thorough thematic analysis and interpretation.
Document Analysis Before analyzing OCR’s LOFs, I engaged in a detailed planning process In qualitative research, the researcher is the instrument (Merriam, 1998; Merriam & Tisdell,
Recognizing biases and understanding preconceived notions before data analysis is essential for achieving reliable outcomes It is important to document assumptions, biases, and reactions both before and during the research process to maintain integrity in the analysis (O’Leary, 2004).
Positionality refers to a researcher's worldview and their accepted position within a study, encompassing ontological, epistemological, and human nature assumptions shaped by personal background and beliefs, including political affiliation, race, gender, and religion Acknowledging one's positionality is essential, as it necessitates recognizing and situating personal views and experiences in relation to the research process This practice, known as reflexivity, involves continuous self-assessment of how these factors may impact data analysis and interpretation.
Although I personally did not experience rape during college, I was assaulted by someone I trusted prior to my enrollment This incident, not falling under Title IX since I was not yet a student, went unreported Nonetheless, I recognized that acquaintance rape is prevalent among college students, which made me aware that some individuals might share similar experiences during investigations Additionally, I faced sexual exploitation shortly after starting graduate school Currently, I work as a graduate assistant in my university's Title IX Office, where I focus on outreach and education to enhance awareness of Title IX resources and the resolution process within the campus community.
Acknowledging my personal biases was essential in my research process, prompting me to implement strategies for maintaining objectivity I engaged in reflexivity by journaling my thoughts and reactions, which helped me understand the impact of my experiences on the study Additionally, I held weekly peer check-ins with my dissertation chair and methodologist to discuss my progress To further ensure the validity of my findings, my methodologist reviewed my analyses, confirming that my codes, themes, and overall conclusions were coherent and well-supported.
In my analysis, I examined various facets of the data set, including the style, tone, type, and purpose of the Letters of Findings (LOFs) O'Leary (2004) outlines essential pre-content analysis processes, which involve collecting relevant text documents, creating an organizational scheme, making copies for annotation, verifying document authenticity, investigating the documents' agendas and background, posing questions about the documents, and ultimately delving into the content itself.
I completed these eight steps prior to exploring and analyzing the content in the LOFs
ANALYSIS AND FINDINGS
The constructionist approach to thematic analysis was utilized to identify patterns and themes in Letters of Findings (LOFs), supported by OCR's resolution agreements, which outline the necessary actions for Higher Education Institutions (HEIs) post-Title IX investigations The research uncovered nine themes highlighting HEIs' noncompliance with Title IX requirements: (1) unclear grievance procedures, (2) overlooking responsibilities, (3) investigative inadequacy, (4) limited documentation, (5) failure to notify, (6) insufficient measures and remedies, (7) students' perceptions, (8) Title IX noncompliance as a continuum, and (9) the nature of relationships within the institution These themes were analyzed through a social constructionist lens to reveal underlying patterns and narratives The study’s findings, along with ancillary insights, are organized according to these themes, with further discussion and implications provided in Chapter V, where the researcher addresses the research questions and offers recommendations for future research.
When a Title IX investigation concludes, the Office for Civil Rights (OCR) sends a Letter of Findings (LOF) to the institution's central administrator, typically the president or chancellor This LOF details OCR's investigative outcomes and confirms the higher education institution's (HEI) agreement to resolve identified areas of noncompliance HEIs only receive OCR's written findings after agreeing to address Title IX violations Since the 2011 Dear Colleague Letter (DCL), OCR has completed 55 investigations, with 30 resulting in LOFs For this study, 21 LOFs were selected based on their relevance to the research questions and availability, focusing solely on cases involving sexual harassment or assault, while excluding those related to sex discrimination in intercollegiate athletics.
Table 1 details each Letter of Findings (LOF), including the year of issuance, the enforcement office responsible for the investigation, and whether it stemmed from a filed complaint or compliance review All 21 letters followed a consistent format, beginning with an introduction from the Office for Civil Rights (OCR), outlining their investigative approach, legal standards, a summary and analysis of the investigation, and concluding remarks Of the 21 LOFs, OCR investigated 11 private colleges and universities, which included three Ivy League institutions, alongside 10 public institutions Additional information about the selected LOFs is provided below.
Description of Letters of Findings
2012 Yale University Boston Office Complaint
The United States (DOJ and OCR)
2014 Tufts University Boston Office Complaint
2015 Carthage College Chicago Office Complaint
2016 Occidental College California Office Complaint
By analyzing the Letters of Findings (LOFs) through the framework of social constructionism, the researcher identified nine key themes that highlight the importance of social interactions, context, and language in understanding Title IX noncompliance This approach reveals that Title IX compliance is an evolving process where higher education institution (HEI) administrators continuously refine their knowledge through interactions with the Office for Civil Rights (OCR) and their campus environment The first seven themes illustrate the reasons behind HEIs' failures to comply with Title IX, focusing on communication challenges and social context considerations Theme 8 posits that Title IX noncompliance is a social construct, as evidenced by OCR's varied accounts of noncompliance Finally, Theme 9 and additional findings underscore the role of social influences, such as media and campus advocacy, in shaping these dynamics.
Theme One: Unclear Grievance Procedures
To meet Title IX requirements, educational institutions, including schools, colleges, and universities, must establish and publicly share policies and procedures addressing sex discrimination complaints involving students, employees, and third parties, as mandated by the U.S Department of Education.
In 2011, the Office for Civil Rights (OCR) identified inconsistent and confusing grievance procedures across numerous Letters of Findings (LOFs) Most higher education institutions (HEIs) maintained multiple policies and procedures to tackle different forms of sexual misconduct.
Before the OCR investigation, the University of Montana had eight policies and procedures specifically addressing sexual harassment and sexual assault Similarly, other higher education institutions, like Southern Virginia University, had policies in place, but these did not clearly pertain to sexual harassment and sexual assault.
In the 2011 DCL, OCR mandated that higher education institutions (HEIs) make grievance procedures accessible to the campus community (U.S Department of Education, 2011) However, this push for increased policy availability led to Title IX violations due to a lack of consolidation and consistency The OCR LOF Compliance Review of the University of Montana (2013) highlighted the institution's efforts to include sexual harassment in its policies, but noted that the absence of clear cross-references among eight different policies created confusion regarding which policy to use for reporting sexual harassment or assault This ambiguity was deemed problematic by OCR, which found HEIs noncompliant for having confusing policies that could hinder student reporting Similarly, in the LOF to Notre Dame, OCR expressed concerns about the clarity of reporting mechanisms.
The university's sexual harassment and nondiscrimination policies are outlined in various documents, including those referenced in du Lac, leading to confusion among stakeholders The lack of consolidation and inconsistencies in these policies, especially regarding the identification of appropriate complaint recipients, contribute to the overall ambiguity.
Compliance Review —University of Notre Dame, 2011, p.5)
The Office for Civil Rights (OCR) highlighted that Frostburg State University’s five policies and procedures were inconsistent and not unified They pointed out that the previous Title IX policies often created confusion and contradictions for complainants, accused students, university community members, and third parties.
The Office for Civil Rights (OCR) highlighted the necessity for Harvard Law School to clarify its procedures and processes in its report, emphasizing the importance of clear communication with the campus community Rather than identifying inconsistencies due to multiple policies, OCR focused on the presentation of the Law School’s policies and procedures The review aimed to identify any conflicting language that could lead to confusion or misinterpretation Consequently, OCR provided recommendations to Harvard Law School to enhance the clarity of its policies and procedures.
Universities have a responsibility to address incidents of sexual harassment that they are aware of, even if no formal complaint has been made They must respond to all known complaints and reports of sexual harassment, ensuring a safe and supportive environment for all students.
No school or unit-based policy, procedure, or press can change or override any factual findings, remedies, or decisions made by the University’s Title IX Coordinator, as stated in the OCR LOF Complaint (Harvard Law School, 2014, p 14).
In the context of the Title IX review and appeal process, it is essential to ensure that both parties are granted equal opportunities to participate, as highlighted in the OCR LOF Complaint involving Harvard Law School.
OCR's letter to Harvard Law School did not suggest that the institution failed to implement the recommended actions Nonetheless, OCR concluded that additional clarification was necessary to ensure the campus community fully understands the Law School's Title IX obligations.
DISCUSSION
The study examined noncompliance by higher education institutions (HEIs) in addressing sexual harassment and assault complaints through the lens of social constructionism Key findings included unclear grievance procedures, a tendency to overlook responsibilities, inadequate investigations, limited documentation, and failures in communication Additionally, the research identified insufficient measures and remedies, varying student perceptions, and a continuum of Title IX noncompliance The relationship dynamics between students and staff were also explored, alongside the impact of social influences Thematic analysis revealed that HEIs' failure to comply with Title IX reflects broader social interactions and contextual factors, aligning with the research questions posed.
1 What discernable trends of Title IX noncompliance are identified in OCR’s published LOFs since the issuing of the 2011 Dear Colleague Letter?
2 How does OCR respond to HEIs regarding how sexual misconduct complaints are handled under Title IX?
3 How does the information found in letters of findings (LOFs) between April
2011 and September 2016 overlap with or add to previous guidance documents provided by OCR?
In this chapter, the researcher will use the aforementioned themes to answer the study’s research questions, discuss implications, and areas of future research
What discernable trends of Title IX noncompliance are identified in OCR’s published LOFs since the issuing of the 2011 Dear Colleague Letter?
Title IX enforcement is evolving, as evidenced by the differing approaches of the Office for Civil Rights (OCR) in compliance reviews and complaint investigations Compliance reviews resulted in four Letters of Findings (LOFs), while 17 LOFs stemmed from OCR's investigations into specific complaints According to the OCR’s Case Processing Manual, compliance reviews are broader and less focused on specific incidents of sexual harassment or assault, allowing for a comprehensive review of documents and procedures In contrast, complaint investigations utilize various fact-finding techniques to assess allegations of noncompliance with Title IX Despite these differences, the study indicates minimal variation between the two processes, with complaint investigations being less thorough While OCR examines how higher education institutions (HEIs) handled original complaints, they also review additional case files, policies, and training procedures, leading to determinations of noncompliance that may include information beyond the initial complaint.
The Office for Civil Rights (OCR) has adopted a more comprehensive investigative approach in handling complaints, aligning its methods with compliance reviews Each investigation, regardless of whether it stems from a filed complaint or a compliance review, thoroughly examines how higher education institutions (HEIs) fulfill their Title IX obligations This process includes a detailed review of relevant policies, procedures, and case files related to sexual harassment and sex discrimination within a specified timeframe Additionally, OCR conducts interviews with both students and HEI administrators to gain insights into their perceptions and the context of each case This approach reflects the principles of social constructionism, suggesting that OCR's understanding of compliance is shaped through social interactions.
In 1994, the Office for Civil Rights (OCR) took a comprehensive approach to assess compliance with Title IX by not only examining documents but also engaging directly with higher education institution (HEI) administrators and allowing students to share their experiences This interaction provided valuable insights that enriched the context of the cases reviewed Furthermore, OCR stayed informed about media coverage and advocacy initiatives, integrating this information into their Title IX investigations.
Of the nine discovered themes, the first six themes: unclear grievance procedures, overlooking responsibilities, investigative inadequacy, limited documentation, communication: failing to notify, and insufficient measures and remedies, highlighted
HEIs need for improvement According to the 2011 DCL, to comply with Title IX HEIs must:
To ensure compliance with Title IX, institutions must disseminate a nondiscrimination notice, appoint at least one employee to oversee these efforts, and establish grievance procedures that allow for the prompt and equitable resolution of complaints related to sex discrimination for both students and employees (U.S Department of Education, 2011, p 6).
Many higher education institutions (HEIs) have implemented the procedural requirements of Title IX; however, the Office for Civil Rights (OCR) found that these institutions were still noncompliant due to insufficient actions taken OCR emphasized that HEIs needed to enhance their efforts beyond existing measures to meet Title IX standards Importantly, the findings did not indicate that HEIs intentionally concealed incidents of sexual harassment and assault Instead, the mismanagement of investigations by HEI administrators, including inadequate prevention of broader harassment and improper forwarding of cases to other departments, contributed to the noncompliance with Title IX.
The IX Coordinators lacked comprehensive administrative oversight over all sexual harassment and assault complaints, revealing a significant misunderstanding of their role in preventing such incidents Additionally, the findings highlighted the importance of identifying trends and tracking complaints effectively According to social constructionist scholars, misinterpretations of definitions can lead to increased misunderstandings (Andrews, 2012).
A social constructionist perspective posits that knowledge is collaboratively created through interpersonal interactions, rather than being an inherent possession (Burr, 2005; Philips & Hardy, 2002) This understanding is reflected in the findings related to Title IX, highlighting the importance of collective engagement in shaping knowledge.
Title IX Coordinators often lack a clear understanding of their responsibilities, leading to failures in fulfilling their roles effectively This misunderstanding highlights potential shortcomings in the collaboration between the Office for Civil Rights (OCR) and Higher Education Institutions (HEIs) before a Title IX investigation begins Furthermore, this gap in understanding may explain the issuance of the 2015 Dear Colleague Letter (DCL), which specifically addressed the importance of Title IX Coordinators' roles.
IX Coordinators and the need for this individual to have full authority over all Title IX complaints (U.S Department of Education, 2015)
How does OCR respond to HEIs regarding how sexual misconduct complaints are handled under Title IX?
Recent findings reveal that the OCR's response to higher education institutions (HEIs) regarding Title IX noncompliance has evolved over time Between 2013 and 2016, OCR provided more detailed findings and utilized clearer terminology when addressing Title IX violations In contrast to earlier letters of findings (LOFs) that referred to "compliance concerns" without thorough explanations, the latest LOFs reflect OCR's commitment to transparency and accountability The use of explicit terms like "failed" and "violated" underscores the seriousness of HEIs' handling of sexual harassment and assault complaints in relation to Title IX requirements.
Despite the Office for Civil Rights (OCR) issuing a Letter of Findings (LOF) to San Diego State University in 2016, the language used was notably vague, employing terms like "concerns" rather than directly stating that the university violated Title IX regulations regarding sexual harassment allegations This pattern of indirect language was also reflected in OCR's LOF to Occidental College.
The College's use of the phrase "compliance concerns" in its conclusion, despite the OCR's finding of a Title IX violation, indicates potential inconsistencies in how different OCR enforcement offices interpret higher education institutions' (HEIs) management of sexual harassment and assault allegations This raises questions about what constitutes a concern versus a failure or violation under Title IX.
Every Letter of Findings (LOF) was addressed by the Office for Civil Rights (OCR) through resolution agreements, regardless of the terminology used by Higher Education Institutions (HEIs) in managing Title IX complaints OCR concluded Title IX investigations with these agreements, which HEIs were obligated to sign and implement to ensure compliance.
Higher Education Institutions (HEIs) face significant challenges in fully complying with Title IX requirements, as highlighted by resolution agreements from the Office for Civil Rights (OCR) These agreements necessitate changes in grievance procedures, communication notices, the role of the Title IX Coordinator, interim measures, record-keeping, investigations, and training Additionally, HEIs must submit documentation by a specified deadline to demonstrate compliance with these changes While OCR indicates that HEIs enter into these agreements voluntarily and that such agreements do not imply an admission of noncompliance, the scrutiny faced by institutions like the University of Virginia and Tufts underscores the importance of accountability in Title IX compliance.
University, the HEIs that did not enter a voluntary resolution agreement within a certain timeframe, indicate that resolution agreements are perhaps not completely voluntary agreements
The Office for Civil Rights (OCR) collaborates with higher education institutions (HEIs) that are committed to improvement, particularly in the context of Title IX compliance Viewing Title IX through a social constructionist lens, it becomes evident that compliance issues arise from the lack of interaction and communication between HEIs and OCR before investigations occur Noncompliance is not due to a reluctance to adhere to the law but stems from misunderstandings that could have been addressed collaboratively The U.S Department of Education reports that OCR offers technical assistance to HEIs to help them comply with Title IX, aiming to prevent violations In fiscal year 2015, OCR provided approximately 130 instances of technical assistance to various educational entities However, the extent to which HEIs proactively seek assistance from OCR prior to a complaint remains unclear Nonetheless, once HEIs enter into resolution agreements, they typically engage in a collaborative monitoring phase with OCR.
How does the information found in LOFs between April 2011 and September 2016 overlap with or add to previous guidance documents provided by OCR?