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2012 May 14 - 12:00 am

Title IX Transforming How Colleges Respond to Sexual Assault Cases

For months after Kristina Ponischil was raped at a party in her off-campus apartment, her life at Western Washington University was hell.

Police wouldn’t act, as often happens in college towns with “he said, she said” accounts of alcohol-influenced student encounters behind closed doors. Despite a restraining order, she kept running into her assailant on campus, prompting panic attacks.

Once, the man who’d raped her brushed up against Ponischil in the bookstore, then smirked.

“I was just constantly worried that I would run into him again,” Ponischil said.

But if the criminal justice system let Ponischil down, Western Washington did not. When she finally told an administrator what happened, the school sprang to action, offering her the support she needed. Perhaps most importantly, the campus judicial system, using a lower standard of proof than criminal courts, suspended her assailant, removing him from campus until she graduated in 2009.

“I was able to start healing,” she said. “When I was constantly afraid, there was no healing. It was just constant fear.”

The college’s response wasn’t just a moral obligation; it was also a legal one.

June marks the 40th anniversary of Title IX, the federal gender-equity law that has made headlines mostly on the sports pages. But over the last decade or so, through a series of court rulings and more recently controversial guidance published by Obama administration, Title IX has shifted onto a different patch of contentious terrain — sexual assault on college campuses. It is transforming how colleges must respond to allegations of sexual violence.

The reasoning: Title IX’s key language, running barely 30 words, forbids sex-based discrimination that denies access to educational opportunity. It’s long established that sexual discrimination and harassment can create an atmosphere that denies women their right to education. What’s newer is applying the logic to even a single episode of sexual assault.

Typically, colleges enjoy wide leeway in responding to student misconduct, whether that means using a disciplinary board to enforce their own rules or simply punting the matter to law enforcement. But as Title IX is now interpreted, colleges must respond if a sexual assault is reported, even if prosecutors refuse to get involved. Moreover, they face often precise instructions from the government for conducting their investigations and proceedings, and even the standard of proof to use.

Victims’ advocates welcome what they call an overdue push for colleges to take seriously a problem they’ve long swept under the rug. The latest Title IX guidance also requires colleges to train staff, and develop and publicize policies to help sexual assault victims, or risk large legal judgments. And they must remediate the harm to victims, for instance by providing counseling.

More broadly, these advocates contend Title IX is also reframing the entire discussion about sexual violence on campus, away from blaming victims and toward the big issue at stake: their right to an education.

But Title IX’s expanding role in campus sexual assault cases has proved contentious, on a variety of fronts, even among victims’ advocates.

Some argue channeling sexual assaults to campus proceedings lets the criminal justice system off the hook. Others argue the problem is colleges can’t or won’t hand down tough punishments. Still others oppose some of what the government now requires of colleges. For instance, schools may be required to pursue a case even if the victim wants to drop it, and they cannot offer absolute promises victims’ anonymity will be protected.

Virtually all college administrators agree it would be wrong to ignore sexual assault reports, but some feel unequipped to handle such cases. Regardless, they face suits from both sides — under Title IX for failing to act forcefully enough to ensure their campuses are safe for women, and by accused assailants claiming they were treated unfairly.

But the most vigorous criticism has come from civil libertarians, who argue the Obama administration’s guidance undermines the rights of the accused. They’ve focused on the requirement that colleges use a “preponderance of evidence” standard in such cases — essentially a belief guilt is more likely than not, and a much lower standard than defendants enjoy in criminal court.

Illustrating the dangers, they say, are cases like that of a former North Dakota college student who was found responsible for sexually assaulting a fellow student by a campus disciplinary board. Later, police investigating the incident cleared him and brought false-reporting charges against his accuser. Still, he struggled to clear his name and has yet to return to school.

Title IX, these critics claim, is a blunt legal weapon for addressing sexual assault on campus. They too see a threat to access to education — but for the accused.

Last April, the Department of Education’s Office for Civil Rights (OCR) sent colleges a “Dear Colleague” letter, explaining its interpretation of Title IX and outlining the steps it believes colleges must take in response to sexual assault on campus.

The letter reminds colleges they must provide “due process” for the accused, such as giving both complainant and accused timely access to relevant information. But the focus is protections for the accuser. Schools must act promptly to investigate, not waiting for a criminal case to proceed. If necessary, they must take interim steps to protect the complainant before a verdict is reached, such as separating the accused and accuser in classes and dorms. In such cases, the burden of inconvenience should fall on the accused.

They also must offer immediate support to victims, and ensure cases are resolved before perpetrators graduate. Historically, some advocates say, colleges trying to avoid messy cases have simply “run out the clock.” That’s no longer an option.

The case for these strong measures lies with women like 24-year-old Ally Clendineng, who contends she was driven away from Northern Iowa Area Community College by a 2006 rape and the college’s inadequate response. Clendineng was fumbling for her keys after an evening out with friends when a guy she vaguely knew let her into a dormitory. He’d been drinking, and she brushed him off, but he followed her to her door. For reasons she says she can’t explain, she agreed to hang out with him in his room for a few minutes. She sat on his bed, and soon he lay down beside her and pulled her toward him.

“He kept me pinned,” Clendineng recalled. Eventually, “I just stopped trying to stop it because I couldn’t stop it,” she said.

A resident adviser took her to the hospital, but when she talked to police she couldn’t remember the order of events. Police filed preliminary charges, but they were dropped.

On campus, she says, a dean told her the assailant had rights, too. He was told to stay away from her, but she encountered him almost daily.

“It made me unable to focus, to concentrate on anything other than making sure nothing like that ever happened again,” she said.

Clendineng began abusing painkillers and her schoolwork fell apart. Eventually, she dropped out. She’s now trying to finish a degree online.

“I should have been able to finish school long before now,” she said. She believes she could have “had there been more support from the school, had they done more to tell him to stay away, had the dean not essentially blamed me for it happening.”

****

Caleb Warner has seen the flip side of Title IX enforcement.

Warner, too, was enmeshed in a “he said, she said” encounter. During finals week in 2009, he says, a fellow University of North Dakota student with whom he’d hooked up before, and been texting with ever since, invited herself over.

They had sex — consensual, he insists — a second time, then again the next morning, after she spent the night. He liked her, but she stopped responding to his calls and texts. He went home for the holidays and let it drop.

But when Warner returned to school, an administrator pulled him from class. He’d been accused of rape, and he would have to face charges in the campus disciplinary system —within 10 days.

What followed, as Warner and his mother describe it, was a “kangaroo court”’ campus trial where a hostile administrator attacked Warner’s witnesses as just standing up for a fraternity brother. He was found guilty and kicked off campus, and banned from any state school, for at least three years.

Then his case took an unusual twist. After his quick campus trial, a Grand Forks police detective began investigating possible criminal charges against Warner. According to a police report, the detective caught Warner’s accuser in a series of lies about the incident and her previous communications with Warner. Multiple witnesses contradicted her story.

Eventually the police brought charges — against her.

For months UND refused to reconsider Warner’s case, arguing the results of the police investigation did not amount to “substantial new information.”

It wasn’t until last October, after a campaign led by Warner’s mother was starting to inspire critical letters from alumni, that the university relented and overturned Warner’s sanctions. A UND official wrote the original decision should stand but the process for allowing him to report new information fell short of the “minimum demands of fundamental fairness.”

Not that Warner has no plans to return to the school. He is driving a delivery truck for a national shipping company, trying to pay back legal bills to his family, and unsure if he’ll ever return to college.

Warner’s accuser has since left the state; a warrant is open for her arrest.

Russlynn Ali, the assistant secretary of education for civil rights, who signed the “Dear Colleague” letter, emphasized OCR’s guidance is intended to protect victims and clarify college administrators’ responsibilities toward them. “It is not intended to trump the rights of the accused,” she said.

But there are some who worry that Title IX rules could force a rush to judgment. Schools must act immediately to protect alleged victims even while the case for discipline takes its course.

Daniel Swinton, director of student conduct and academic integrity at Vanderbilt, says the requirement colleges take interim steps “makes us nervous because you’re starting to sanction or hold someone accountable, at least temporarily, based on an accusation.”

Most controversially, OCR said colleges must judge Title IX cases under a standard of “preponderance of evidence.” That standard, common in civil law cases, means schools must conclude only that there is a 50.1 percent chance the accused is guilty to find him responsible.

Until recently, roughly 20-30 percent of colleges, including most elite institutions, maintained a higher burden of proof. Typically they required “clear and convincing” evidence to convict, a standard they felt better protected the rights of the accused.

The OCR letter prompted virtually all such colleges to scrap that standard and change to preponderance. Civil liberties groups, as well as the AAUP, the country’s main faculty union, are alarmed at what they consider a quasi-criminal proceeding that lacks constitutional protections.

Other than a college campus, “there is no other place in America where a body can determine you’re guilty of rape, particularly a body that is run by the government, based on a more-likely-than-not standard,” said Robert Shibley, an attorney with FIRE, the Foundation for Individual Rights in Education.

Hans Bader, an attorney who worked at OCR under the Bush administration, says OCR’s guidelines “stack the deck against the accused.” He and other critics contend that OCR is misreading the law. They argue preponderance is an appropriate standard for determining if a college has violated Title IX. But for an individual student, a higher standard should be required.

“You’re talking about effectively convicting somebody and saying they’re a rapist,” said Shibley, who notes such a charge is potentially life-altering now that colleges, reluctant to pass problem students on to other schools, are increasingly affixing disciplinary notes to the transcripts of students they expel, rather than simply letting them walk away. “You take a really huge stigma with you your entire life.”

The preponderance standard amounts “to a 50-50 guess on credibility,” he said. “There’s a reason we don’t run our real courts that way, because you can do so much damage to somebody.”

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