As I have recently written about Michigan State University and University of Virginia having entered into Resolution Agreements with the Office for Civil Rights to settle Title IX sexual assault investigations. In these agreements both MSU and UVA agreed to undertake numerous remedial actions pertaining to their Title IX sexual assault policies and procedures.
Although many of the agreed to actions can be interpreted as not noteworthy, some of the items should give pause for thought by the higher education community. One particular item pertains to the level of oversight and monitoring that OCR is assuming over MSU’s and UVA’s handling of sexual assault complaints.
During the ongoing monitoring periods specified in the Resolution Agreements (the next three years) both MSU and UVA are required to submit to OCR copies of all grievances filed, and all related documentation and actions taken, that allege sexual or gender based harassment assault or violence. Most significantly these grievances and related documentation are required to be submitted to OCR for their review and approval.
I have read both of the Resolution Agreements and I can not find anything that provides clarity as to what it is that OCR will be approving. Does this mean that findings and/or sanctions determined through MSU’s or UVA’s disciplinary process are now subject to change by OCR based upon its review of a case? If so, should UVA’s and MSU’s disciplinary process include reference to the role that OCR is playing in the handling of disciplinary complaints? Further, should their discipline policies and procedures provide notice to the campus community that during the monitoring period that copies of all documentation (including witness statements/interviews, investigator notes, evidence submitted by the parties, etc.) will be turned over the OCR as a part of the institution’s monitoring reporting obligations?
Without greater information and clarity on what is being approved, it can be questioned whether this portion of the Resolution Agreements could represent an incursion into the traditional deference that has been given to institutions of higher education in the handling of campus discipline. I do find it a bit surprising that the Resolution Agreements do not address this fundamental issue, that is what exactly is OCR’s approval authority?
Lastly, it is going to be interesting to see if the specter of this obligation (and potentially the other aspects of the Resolution Agreements) will be used by attorneys to allege that these institutions felt pressure to find students responsible for sexual harassment/assault based on OCR’s review/approval power. As I noted in an earlier post, a Federal District Court is allowing a case to proceed where an argument was presented that the plaintiff was being discriminated against on the basis of gender due to pressures being exerted to find male students responsible for campus sexual assault.
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