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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Understanding Title IX Investigations: What they are and what they aren’t

Reactions to the recent investigation of 10 suspended University of Minnesota football players revealed widespread misunderstanding of the differences between a criminal investigation/prosecution and the campus adjudication process dictated by Title IX statutes and regulations. This article seeks to clarify key points of law regarding Title IX investigations.

0217-footballfieldIn recent years, campus sexual assault has received considerable attention. Statistics show one in five women and one in 16 men report a sexual assault while in college.1 This is hardly a new problem. But the push for greater institutional accountability relating to student safety, on and off campus, has led to changes in approach as well as greater visibility.

The issue hit close to home during the final weeks of 2016 when 10 student athletes from the University of Minnesota football team were suspended from playing for their involvement in an alleged sexual assault.2 The suspensions were announced by Athletics Director Mark Coyle and University President Eric Kaler after a lengthy investigation by the University’s Equal Opportunity and Affirmative Action (EOAA) office produced an 80-page report linking player actions to various violations of the Student Conduct Code.3

The players had been suspended for three games earlier in the season, pending the outcome of a Minneapolis Police Department (MPD) criminal investigation.4 Subsequent to her report to the University of Minnesota EOAA and MPD, the alleged victim sought a protective order against several of the alleged perpetrators. The matter was settled with an agreement that the student athletes involved stay 20 feet away from her.5

The EOAA report was not publicly released due to student confidentiality protections under the Family Educational Rights and Privacy Act,6 in addition to other federal campus related laws described below. However, KSTP-TV published a redacted version on its website, along with the MPD’s investigation report. The report was published online one day after the entire Gopher football team announced a boycott of their upcoming Holiday Bowl appearance.

The detailed EOAA report incited public outrage. It described a lengthy sexual encounter with consensual and nonconsensual aspects, partially filmed, involving a female student athlete and several male student athletes as well as a high school recruit. The boycott ended following an all-night meeting between campus administration and student
athletes. The University refused the team’s request to lift the suspensions prior to the final outcome of the campus adjudication process.

It was not until the press conference announcing the end of the boycott that the team players and Coach Tracy Claeys (who had tweeted support for the players’ boycott) stated concern about the problem of sexual violence. Many viewed this acknowledgement as too little too late, fueling conversation about a pervasive rape culture on campus.7

Two weeks later the university terminated Claeys. Athletic Director Mark Coyle cited a need for better leadership, adding that the current events underscored his preexisting concerns about the football program’s direction on and off the field.8

Key misperceptions

Reactions to the suspensions, boycott, and termination revealed a significant lack of understanding on the part of student-athletes and coaches about their various code of conduct obligations.9 Members of the general public likewise expressed confusion.

Of particular note, the team and much of the public appeared to believe that the Hennepin County Attorney’s Office decision not to file criminal charges against the student-athletes meant that the university could not hold them accountable for code of conduct violations. This belief reflected a pervasive misunderstanding of the campus investigation and adjudication process, which is completely independent from the criminal justice system. One significant distinction between the campus adjudication process and the criminal justice system involves burden of proof.

Criminal prosecution

The burden of proof in a criminal prosecution is “beyond a reasonable doubt.” It is the highest burden of proof in our legal system, because a criminal prosecution involves the potential deprivation of an individual’s fundamental right to liberty. Beyond a reasonable doubt is the same standard used in criminal cases across the United States. It is an intentionally high standard because a defendant’s constitutional rights are at stake.

There are many reasons why a prosecutor may decide not to charge an alleged perpetrator. But a lack of criminal charges does not mean a sexual assault did not occur. It simply means that after reviewing the evidence provided by law enforcement, a prosecutor determined they could not prove the case beyond a reasonable doubt.

Criminal sexual conduct is often difficult to prove; it not uncommon for prosecutors to decline charges.10 While promising practices such as the Forensic Experiential Trauma Interview can improve the collection of information during law enforcement investigations, public skepticism toward victims remains pervasive.11 Gender bias in policing remains an issue.12 The myth of rampant false reporting persists, though in reality the range is only 2 to 8 percent of all cases.13 Other misperceptions held by jury members can also affect the success of a prosecution.

Campus adjudication process

The campus adjudication process operates under a “preponderance of evidence” standard; this is the same standard used for civil litigation in discrimination cases under Title VII of the Civil Rights Act of 1964.14 Preponderance of evidence means the conduct is more likely than not to have occurred. While access to higher education is important, enrollment comes with a requirement to abide by the code of conduct. If a violation is significant enough, a school may warn, suspend, or expel a student, among other possibilities. Students are afforded due process throughout a campus adjudication process.

According to the White House Task Force to Protect Students from Sexual Assault, “A balanced and fair process that provides the same opportunities for both parties will lead to sound and reasonable decisions. Schools must strike the correct balance between the rights of the accused and the rights of everyone else on campus, including the complainant and every other student who might be at risk of harm.”15

Application of laws on campus

A campus sexual assault investigation is complex due to several layers of law and policy. In turn these influence—and operate alongside—internal school policies as well as the various requirements that higher education institutions must meet for compliance. These include the various codes of conduct for students, athletes, and employees, which overlap in many ways.

Title IX compliance

The campus adjudication process operates under Title IX of the Education Amendments of 1972 and its implementing regulations.16 Title IX, which applies to school districts, colleges and universities, prohibits discrimination on the basis of sex in education programs and related activities that benefit from federal financial assistance. Schools that fail to comply are subject to investigation by the Office of Civil Rights (OCR) of the United States Department of Education in coordination with the Justice Department. Sexual harassment of students, employees, or other qualifying parties, as interpreted under the law, includes sexual violence (rape, sexual assault, sexual battery, sexual coercion) and is considered a form of sex discrimination under Title IX.17

All institutions receiving federal financial assistance must appoint at least one employee to ensure compliance with Title IX and carry out all related responsibilities (often referred to as a Title IX coordinator).18 In addition, they must establish a grievance procedure to ensure “a prompt, fair and impartial” resolution for complaints under Title IX that are consistent with guidance from the OCR and the Campus Sexual Violence Elimination Act (Campus SaVE Act).19 The Campus SaVE Act is an amendment to the Clery Act.20 The Clery Act requires campuses to report statistics annually about crimes, including sexual assault, that occurred on or immediately adjacent to campus that were reported to campus authorities and local law enforcement.21

Due process

The Campus SaVE Act lays out the due process requirements for a campus investigation. It codifies much of the “Dear Colleague Letter” sent by the OCR to higher education institutions in 2011.22 This includes:

  • training requirements for campus officials engaged in the proceedings;
  • an equal opportunity for both parties to be present during the disciplinary proceeding;
  • equitable communication and participation;
  • confidentiality requirements;
  • notice of possible sanctions;
  • access to supportive services;
  • and accommodations for the reporting student regarding changes in academic, housing, transportation, and work situations if necessary.23

A student who disagrees with the initial decision may request a formal review and hearing of the case through the adjudication process set up on the campus. This includes a hearing and de novo appeal before a panel that may be composed of faculty, staff, and students, as well as the right to appeal the outcome of the formal hearing for either party.24 The outcome is a finding of responsibility or no responsibility. Sanctions include a warning, suspension, or expulsion, among others.25

Minnesota law

As of August 1, 2016, a new state law went into effect directing the response to campus sexual assault for Minnesota State Colleges and Universities (MNSCU) and private postsecondary institutions. (A private postsecondary institution is one that is located in the state, offers in-person courses, and is licensed by the Office of Higher Education (OHE).) The new state law incorporates some aspects of federal law and creates additional requirements particular to Minnesota.26 It does not, however, change the Title IX investigation obligations described above.

The University of Minnesota is “requested to comply” with the law, which it has done through offering information about policies during registration, posting campus policies, and participating in annual data collection and reporting to OHE (as noted below), among other requirements.27

Some notable aspects of the Minnesota law include requirements that higher education institutions:

  • create a Victim’s Bill of Rights;
  • implement confidentiality and data privacy protections;
  • develop guidance for evidence collection;
  • provide assistance with protective orders;
  • allow for anonymous reporting online;
  • give amnesty for drug or alcohol violations by the reporting student at the time of the sexual assault;
  • develop comprehensive training for campus officials engaged in the investigation and adjudicative process;
  • and promote multidisciplinary protocol team coordination with local law enforcement.28

The law also requires annual data collection and reporting to OHE.29 The first data report was issued in December 2016 and showed 294 reports of sexual assault on Minnesota campuses during 2015.30

University of Minnesota policies

The University of Minnesota in the Twin Cities reported 47 cases in the OHE report.31 Because sexual assault is an underreported crime, it is likely that there were far more instances than the statistics show.32 For example, the Aurora Center for Advocacy and Education, which provides supportive services to victims of sexual assault at the University of Minnesota, reported 462 clients during a one-year period.33 As campuses work to improve their sexual assault-related procedures, victims will likely gain trust in the institutional response, and the number of victims who disclose in a way that causes them to be counted in the OHE report may go up.

The University defines “sexual assault” as “actual, attempted or threatened sexual contact with another person without that person’s affirmative consent.” The school further defines “affirmative consent” as “informed, freely and affirmatively communicated willingness to participate in sexual activity that is expressed by clear and unambiguous words and actions.” This definition of consent does not vary based upon a person’s sex, sexual orientation, gender identity, or gender expression.34

The EOAA office investigates all Title IX conduct violations and sends its findings to the Office for Student Conduct and Academic Integrity (OSCAI), which then notifies the students about the findings.35 The OSCAI investigates any other conduct code violations beyond Title IX.

In addition, the Student-Athlete Code of Conduct applies to students who participate in any of the University’s athletics programs:

Student-athletes at the University of Minnesota are expected to represent themselves, their team and the University with honesty, integrity, and character whether it be academically, athletically or socially. Participation on an intercollegiate team is a privilege and should be treated as such. It has many benefits and brings with it a responsibility to be positive and effective members of the team, department, campus and broader communities.36

Sexual violence violations by student athletes are considered particularly serious and can result in immediate suspension from team activity pending further investigation.37 The Athletics Department holds the final decision on whether a student is dismissed from a team.38

Conclusion

Sadly, the University of Minnesota case has demonstrated that many misperceptions about sexual assault persist in the public. The credibility of sexual assault victims is challenged in ways that other crime victims rarely experience, especially in high-profile situations such as this one. Some people will never believe that a violation occurred unless there is a criminal conviction, even though sexual assaults are among the least-prosecuted crimes. As noted above, the cases are often difficult to prove beyond a reasonable doubt, especially to a potential jury pool that remains reluctant to believe the victim (especially when the defendant is an acquaintance or intimate partner, or some of the sexual contact was consensual).39

Due process is fundamental and should always be available to any person. The laws that are in place, and were followed by the University of Minnesota, afforded due process to the student athletes involved regarding their continued education. They will continue to have access to this process for as long as they have procedural options to pursue; as of publication, the accused players have requested formal hearings.40 They may also avail themselves of civil remedies in the courts.

The key concern for the University of Minnesota, and other schools engaged in Title IX investigations, is code of conduct violations. Participation on sports teams is a privilege, not a right. Likewise, access to education at a higher educational institution is subject to accord with a code of conduct that applies to every student equally. Protecting these codes is a rational and legal duty of an educational institution charged with ensuring both the safety and fair treatment of all its students.


CAROLINE S. PALMER is the public and legal affairs manager at the Minnesota Coalition Against Sexual Assault, a statewide organization representing 60 sexual assault victim services programs. She is also an adjunct legal writing professor at Mitchell Hamline School of Law.

LINDSAY J. BRICE is a staff attorney at Standpoint (previously known as the Battered Women’s Legal Advocacy Project), a statewide organization whose mission is to promote justice for victims of domestic and sexual violence. She is a former prosecutor and victims’ advocate who has worked in the field for over 20 years.


NOTES

[1] National Sexual Violence Resource Center, Info & Stats for Journalists, Statistics About Sexual Violence, http://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_media-packet_statistics-about-sexual-violence_0.pdf (hereinafter referred to as NSVRC) citing Christopher Krebs, Christine Lindquist, Tara Warner, Bonnie Fisher, Sandra Martin, The Campus Sexual Assault (CSA) study: Final Report (2007), http://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf.

2 “U of M Fires Football Coach Tracy Claeys,” KSTP-TV, 1/24/2017, http://kstp.com/sports/claeys-university-of-minnesota-football-coach-fired-/4360929/.

3 “KSTP Exclusive: 80 Page Report Outlines U of M Investigation into Gophers Football Players,” KSTP-TV, 12/17/2016 http://kstp.com/sports/university-of-minnesota-eoaa-investigative-report-gophers-football-players/4347059/. The University of Minnesota Student Conduct Code is located at http://regents.umn.edu/sites/regents.umn.edu/files/policies/Student_Conduct_Code.pdf. The procedures and processes related to the code are located at https://policy.umn.edu/education/studentconductcode-proc01.

4 Mike Hendrickson, “What You Need to Know About the Gophers Boycott,” Minnesota Daily, 12/16/2016, http://www.mndaily.com/article/2016/12/football-boycott-explainer.

5 Id.

6 20 U.S.C. § 1232g; 34 CFR Part 99.

7 Sami Rahamim, “The Real Issue is Culture of Toxic Masculinity,” Star Tribune (12/20/2016), http://www.startribune.com/the-real-issue-is-culture-of-toxic-masculinity/407671696/. “Rape culture” is a term describing the normalization of sexual violence in society as evidenced through blaming the victim for the crime, trivialization of sexual violence (“locker room talk” or “boys will be boys”) and promoting gender roles of male aggression and female submission. See Zerlina Maxwell, “Rape Culture is Real,” Time (Mar. 27, 2014), http://time.com/40110/rape-culture-is-real/ .

8 Andy Greder. “Gophers Fire Coach Claeys in Effort to Change Football Program’s Culture,” Pioneer Press (1/3/2017), http://www.twincities.com/2017/01/03/gophers-fire-football-coach-tracy-claeys/.

9 All University of Minnesota employees must comply with an Employee Code of Conduct which outlines their own obligations. http://regents.umn.edu/sites/regents.umn.edu/files/policies/Code_of_Conduct.pdf.

10 See State v. Obeta, 796 NW 2d 282 (Minn. 2011).

11 End Violence Against Women International, “FAQs: FETI,” http://www.evawintl.org/PAGEID24/Best-Practices/FAQs/FETI/.

12 United States Department of Justice, Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence (12/15/2016), https://www.justice.gov/opa/pr/justice-department-issues-guidance-identifying-and-preventing-gender-bias-law-enforcement.

13 See Kimberly Lonsway, Joanne Archambault, David Lisak, False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault, 2, The Voice, http://www.evawintl.org/Library/DocumentLibraryHandler.ashx?id=22 (hereinafter referred to as False Reports).

14 United States Department of Education, Office for Civil Rights, Dear Colleague Letter, 10 (4/4/2011) https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html (hereinafter referred to as Dear Colleague Letter).

15 The Second Report of the White House Task Force to Protect Students from Sexual Assault, 16 (1/5/2017) (hereinafter referred to as White House Task Force) https://www.whitehouse.gov/sites/whitehouse.gov/files/images/Documents/1.4.17.VAW%20Event.TF%20Report.PDF.

16 20 U.S.C. §§1681 et seq.; 34 C.F.R. Part 106.

17 Dear Colleague Letter, supra note 14, at 1-2. In addition,

Under Title IX, colleges and universities must process all complaints of sexual assault, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity. For example, off-campus education programs and activities include activities that take place at houses of fraternities or sororities recognized by the school, athletic team travel; and events for school clubs that occur off campus. Further, because students often experience the continuing effects of off-campus sexual assault in the educational setting, institutions must consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus or in an off-campus program or activity.

White House Task Force, supra note 15, at 16, fn. 7.

18 34 C.F.R. §106.8(a).

19 Pub. L. No. 113-4, § 304, 127 Stat. 89 (2013).

20 20 U.S.C. §1092(f).

21 Id.

22 Dear Colleague Letter, supra note 14.

23 See supra note 18.

24 Id. Students involved in the disciplinary proceeding may be accompanied by an advisor of their choice, who may be an attorney.

25 Id.

26 Minn. Stat. §135A.15 subd. 1.

27 Id.

28 §135A.15 subds. 2-5, 8.

29 §135A.15 subd. 6.

30 Minnesota Office of Higher Education, Sexual Assault Data Report, (Dec. 1, 2016) https://www.ohe.state.mn.us/sPages/SADR.cfm.

31 Id.

32 NSVRC, supra note 1, citing Rennison, C. A. (2002). Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, https://www.bjs.gov/content/pub/pdf/rsarp00.pdf.

33 See The Aurora Center for Advocacy and Education, Annual Report FY 2015, 10, http://aurora.umn.edu/pdf/Annual%20Report%202015.pdf.

34 University of Minnesota, “Sexual Assault, Stalking and Relationship Violence,” https://policy.umn.edu/operations/sexualassault. See also Student-Athlete Code of Conduct, http://www.gophersports.com/sports/student-affairs/spec-rel/code-of-conduct.html (hereinafter referred to as “Student-Athlete Code”).

35 See https://oscai.umn.edu/title-ix-process.

36 “Student-Athlete Code,” supra note 34.

37 Id.

38 Id.

39 See False Reports, supra note 13.

40 Andy Greder, “Gophers Football Players Request Formal Hearing on Suspensions,” Pioneer Press (12/14/2016), http://www.twincities.com/2016/12/14/gophers-football-players-request-formal-hearing-on-suspensions/.

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