By Dee Spagnuolo and Olabisi L. Okubadejo
The White House Task Force To Protect Students from Sexual Assault has released its first report, which contains a series of recommendations focused on identifying the scope of sexual assault on college and university campuses. The task force, created by President Obama in January 2014, endorses the use of climate surveys to gauge the extent and awareness of sexual assault at colleges and universities.
A “toolkit” is provided to help schools develop effective surveys, and the task force asks schools to conduct surveys voluntarily next year while it explores options for mandating surveys in 2016. The report also focuses on increasing awareness around bystander intervention, including by male students, as a method of preventing sexual assaults on campus.
In conjunction with the U.S. Department of Education’s Office for Civil Rights (OCR), the task force attempts to clarify questions about confidential reporting sources on campus that have percolated since OCR’s release of the Dear Colleague Letter in 2011. In a shift in the way many colleges and universities have interpreted the Dear Colleague Letter, OCR now clarifies that nonprofessional on-campus counselors and advocates (e.g., volunteers in on-campus sexual assault centers and women centers) generally may talk with victims in confidence, though these communications do not have the same confidentiality provisions granted to licensed counselors and pastoral staff.
The task force provides a “sample reporting and confidentiality protocol” recommending that schools identify the confidential sources on campus and explain when victims’ requests for confidentiality will not be honored. In addition, the task force provides a checklist for developing sexual misconduct policies and promises to provide sample language in the future. Training of school officials and investigators on the unique aspects of sexual violence also is cited as important.
Along with the release of the task force report, OCR today issued long-awaited answers to frequently asked questions about the 2011 Dear Colleague Letter. In addition to confidentiality, the FAQs address the use of a complainant’s sexual history and prior consensual relations with the accused in campus judicial proceedings, cross-examination of parties in disciplinary hearings, the role of the Title IX coordinator, coordination with law enforcement, and how investigations should be conducted.
OCR also has signaled an increased focus on enforcement, instituting a 90-day time limit on negotiations of resolution agreements where it has found an institution in violation of Title IX. The report indicates that OCR and the Federal Student Aid Office, which enforces the Clery Act, have entered into an agreement to facilitate information sharing among the sub-agencies, a shift that has become apparent to many schools.
Attorneys in Ballard Spahr’s Higher Education Group regularly advise educational institutions on compliance with Title IX and the Clery Act. Please contact Olabisi “Bisi” Okubadejo at 410.528.5532 or firstname.lastname@example.org, or Dee Spagnuolo at 215.864.8312 or email@example.com with any questions.
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