Dispute Resolution Magazine - Winter 2019

Sexual Misconduct On Campus

Setting a course for handling cases properly — and changing the culture

Brian A. Pappas

The #MeToo movement has shown us not only that sexual misconduct is pervasive but that attempts to handle it properly have essentially failed. This problem is particularly acute at US colleges and universities: According to a 2014-2015 study of 27 universities, one-third of undergraduate female seniors reported experiencing nonconsensual sexual contact at least once during college. Yet according to the same survey by the American Association of American Universities, only about one-fourth – 28% or fewer – of the most serious incidents are reported. Many victims of sexual assault are hesitant to file official reports, perhaps worried that they will not be believed, concerned about the investigative and hearing processes, and fearful about scrutiny, stigma, and possible retaliation, but college-age females historically are even less likely than non-students to report rape and sexual assault to the police.

Although media reports might help encourage people to report wrongdoing, the recent confirmation process for Justice Brett Kavanaugh highlights the need for well-designed processes for handling allegations of sexual misconduct. Because no one-size-fits-all approach will work for every complaint, universities must have multiple avenues for reporting and handling complaints. This article describes the available dispute resolution procedures for incidences of campus sexual misconduct and recommends several best practices for implementing them in ways that will enhance chances of success. 

Last fall, about 10 months after President Trump’s election, the Department of Education’s Office of Civil Rights, the agency responsible for compliance with Title IX, which prohibits discrimination based on sex by any education program that receives federal funds, withdrew the existing 2011 “Dear Colleague” Letter and 2014 explanatory information. At the same time, the Office of Civil Rights issued new interim guidelines for school districts, colleges, and universities to meet their Title IX obligations and investigate, adjudicate, and resolve allegations of sexual misconduct.

Contradicting the previous guidelines, the interim guidelines allow colleges to use mediation, restorative justice, and other informal processes to help parties to reach a voluntary resolution – even in cases of alleged sexual assault. A Notice of Proposed Rulemaking, released by the Office of Civil Rights in November 2018, formalizes these changes. Proponents of the new guidance see these informal processes as interventions that can help alleged perpetrators admit responsibility, truly understand the harm they have caused, and make amends without being expelled or suspended. They also view these informal approaches as a way to reduce the number of investigations, save money, and be fairer to the accused. Critics, however, worry that these informal processes will lessen the consequences and repercussions of misconduct, make complaint-handling less transparent, and perhaps cause administrators who are concerned about liability to pressure students to bypass formal investigations and hearing procedures.

My research and my work as a Title IX coordinator at Michigan State University’s College of Law, responsible for coordinating the school’s responses to complaints involving possible sex discrimination, demonstrate how both formal and informal systems are necessary for properly addressing campus sexual misconduct.7 Formal investigations and hearings have been the de facto method for handling campus sexual misconduct, and the Notice of Proposed Rulemaking expands the formal requirements by requiring a live hearing that allows for cross-examination. In order for mediation, restorative justice, or other informal mechanisms to be used in sexual misconduct disputes, certain safeguards must be in place. The goal of using informal procedures is to provide self-determination and control to survivors in the appropriate situations, not to avoid liability, provide traditional justice, or minimize the use of the formal procedures. Toward this end, the Title IX coordinator should review each situation and sign off on any use of informal mechanisms, with guidelines instituted regarding the factors and means of screening complaints to determine the appropriateness of informal options.

As the statistics about the under-reporting of sexual assault and rape show, universities and colleges must do more to encourage people to come forward and know that their concerns will be taken seriously. Universities cannot remedy issues of misconduct they do not know about. Multiple reporting avenues are needed so survivors, students, faculty, and staff can all make informed decisions about reporting. Mandatory reporting, the system under which anyone in the university community deemed to have the authority and responsibility to take action to remedy misconduct, requires individuals such as faculty, administrators, and residence-life staff to relay reports of wrongdoing to officials. Mandatory reporting is a partial answer, but this also limits where and whom a survivor can turn to for advice and support. The campus counseling center is typically the only place on campus where students can have a fully confidential conversation without engaging  staff or faculty who are mandated to report to the school. Dispute resolution mechanisms, however, can also be used to encourage survivors to make complaints. And organizational ombuds, which provide universities with a reporting safety net and students with a confidential place to discuss concerns, can be an invaluable channel for those who have experienced sexual misconduct to receive support. 

Sitting outside the formal administrative structure, ombuds have the impartiality and independence to help victims who may need assistance understanding the maze of reporting options and procedures and talking through whether to make a report to the school. As many students may not be willing to go to counseling, an ombuds office is a useful alternative that provides similar (though not the same) levels of confidentiality. Ombuds also provide the added benefit of aggregating individuals’ complaints while ensuring anonymity, enabling the institution to pursue systemic solutions such as adding trainings or improving processes and procedures. In order to be a viable alternative, ombuds must comply with the International Ombuds Association Standards of Practice to be exempt from mandatory reporting requirements and provide the confidentiality, impartiality, and independence that will help survivors make informed and self-determined choices.

Ombuds typically are very familiar with informal dispute mechanisms such as mediation and restorative justice and can help a survivor think through the benefits and drawbacks of those options. Ombuds can also protect the anonymity of their visitors while seeking important information from the Title IX coordinator about the prospect of using an informal versus a formal process.   

Creating the informal options themselves requires collaboration between campus stakeholders. Key university or college offices such as Human Resources, Title IX, Diversity Services, Equal Opportunity, General Counsel, and Student Affairs all have information and expertise – and often are the first to hear of a complaint. As a result, they should be collaborating to share information and ensure the system improves as new issues emerge. Faculty and staff also experience sexual misconduct, so any resolution systems should be available for everyone on campus.

Those responsible for designing and implementing options would do well to engage their communities to identify service providers; using mediators and restorative justice facilitators from the college or university and the external community will further the perception of impartiality and provide participants with even more choices than campus resources alone can offer. The local community mediation center (if one exists) can be a valuable source of expertise and support, as can local, state, and national bar associations. The neutrals must, of course, be well-trained in trauma-informed practices and should employ a method that seeks to increase mutual understanding rather than pressure participants to reach an agreement. Any informal process should be completely voluntary, with the confidentiality boundaries understood and agreed to by all the participants beforehand. And because each situation is different, any informal process used should be customizable to both side’s needs. Including advocates in the process itself, using feedback forms, or other forms of monitoring can further protect the participants. 

The existence of informal systems, properly designed and executed, strengthens rather than weakens the formal procedures by encouraging complaints and providing a meaningful avenue for communication and healing. Schools such as the University of Michigan, which has robust student conflict systems firmly rooted in restorative justice, provide a valuable model. Their adaptable pathways provide a range of options that includes conflict coaching, facilitated dialogue, mediation, restorative justice circles, and shuttle negotiation. Rooted in their values of building trust, promoting justice, and teaching peace, the Michigan office seeks to include restorative justice principles of repairing harm and reintegrating offenders into the community.

Dispute resolution options, when responsibly executed, hold the promise of strengthening and improving organizational complaint-handling around the sexual misconduct so prevalent on campuses today. By making reporting opportunities widely available and training campus and community members to be neutrals in a variety of conflict situations, a university can do more than merely settle disputes; it can build capacity that will help change the campus culture.

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