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Deep Dive
The Ed Dept is leaning on mediation to clear backlog of sexual violence cases, sources say
Its push comes as the laws and regulations around Title IX shift, creating a complicated oversight landscape.
Jeremy Bauer-Wolf
March 5, 2020
Editor's note: The names of sexual assault survivors and students
alleged of misconduct have been changed in this story to protect their
identities due to the sensitive and confidential nature of mediation.
Jennifer was enrolled at a large private college in 2014 when she began
an intimate relationship with another student. Soon after they got
together, the situation became troubled. He spent months stalking and
harassing Jennifer, and threatened to make explicit photos of her
public.
While she reported the situation to her university, she felt
administrators were mishandling her case. The office that addresses
complaints under Title IX, the federal sex discrimination law, didn't
help her in a timely fashion, nor did it provide her typical
protections granted to victims, such as making sure she didn't have to
attend the same classes as her abuser.
Jennifer decided the university hadn't done enough. In 2015, she
formally filed a complaint detailing the failings she perceived with
the university's processes to the U.S. Department of Education's Office
for Civil Rights (OCR). OCR is the division of the agency that
evaluates whether institutions of higher education are compliant with
Title IX.
OCR acknowledged Jennifer's report.
And then she didn't hear anything from officials there for more than four years.
About three months ago, she received a call from an OCR representative,
asking if she was interested in moving her complaint against the
university into mediation. The process would work like this: Jennifer,
along with her lawyer, would sit down with university administrators
and negotiate remedies, such as a tuition refund, for the period of
time she was in distress.
If she agreed to mediation, OCR would close her case, in lieu of
potentially launching an investigation into the university, which can
be intensive and last years.
The offer, however, jarred Jennifer, who told Education Dive she had
moved away from the area where she attended college and hadn't thought
about the harassment in years. It was "jolting," she said, to have to
dredge up her notes on the experience and relive it.
Jennifer's case is not the only one the Education Department is
attempting to resolve through this process. Recently, OCR has turned to
mediation in an apparent effort to clear a backlog of hundreds of
discrimination complaints it has fielded over the years, some of which,
like Jennifer's, have remained dormant.
Through interviews with sexual assault survivors, their advocates and
lawyers that specialize in sexual violence cases nationwide, Education
Dive has learned the department is emphasizing mediation as a way to
quickly resolve Title IX complaints from victims of sexual violence as
well as those accused of it.
The impetus behind the department's actions, which Education Dive
confirmed through multiple sources close to the matter, is unclear. But
the flurry of activity coincides with the imminent release of the
agency's final rules dictating how institutions should investigate and
adjudicate sexual misconduct under Title IX.
Bottom of Form
Mediation is confidential. Those who enter into it sign an agreement
that they will not share details of the process. But it can result in
financial compensation for the person who filed the complaint or
changes to an institution's sexual violence policies.
With the legal and regulatory landscape around Title IX deeply in flux,
college and university administrators may be loathe to initiate
negotiations.
One survivor told Education Dive that she had received word her
institution was unwilling to change its sexual misconduct rules given
the imminent release of the final Title IX regulations.
Those who complain to OCR can be left without resolution for 18 months
to two years. Often these cases are "stale" by the time OCR finally
addresses them, said Kevin Kruger, president of NASPA — Student Affairs
Administrators in Higher Education, because institutions have altered
their policies in the intervening years.
For campuses, "the timing couldn't be worse as they prepare for the
Title IX regs," Kruger said. "If the mediation requires a lot of
significant lift from the institution, it will put a burden on many."
In a statement emailed to Education Dive, the department rejected the
idea that it is pushing to settle complaints through mediation, noting
that only 11% of cases resolved through this method in the 2019 fiscal
year were related to sexual harassment.
That year, 71 Title IX cases were settled through mediation. OCR had
302 open postsecondary sexual harassment cases, which also encompass
sexual violence, as of Monday.
"To suggest there is a concerted push to close cases in this way
ignores how aggressively OCR has been investigating Title IX cases,"
the statement reads in part.
Scaling back enforcement
Victim advocates have derided the department's draft rules as a
breakdown of essential protections for sexual assault survivors. They
replace Title IX guidance the Obama administration proffered in 2011,
which was largely credited with catapulting the issue of campus sexual
assault into the national spotlight.
Critics claimed the Obama-era policies deprived accused students of
constitutional due process rights. Institutions, they argued, were
under the threat of having their federal funding yanked for not
following the Obama rules and were incentivized to punish potential
sexual violence, even in cases with little or weak evidence.
Throughout Obama's time in office, OCR took on hundreds of new Title IX
investigations, leading to criticism from Republicans at the time that
the office was overstepping its bounds. Only 55 colleges and
universities were included on a public list of institutions facing
investigations that the Obama administration released in May 2014. By
the time he left the White House, OCR had launched 304 investigations.
"The fact is that OCR opened far more cases than they could ever
resolve properly," said S. Daniel Carter, president of Safety Advisors
for Educational Campuses, which consults with universities on campus
crime and Title IX. "It has been an issue for the last four years. … I
don't believe that was fair to the people who filed Title IX
complaints."
By using the less-intensive mediation process, the department is likely
trying to close many of those cases ahead of the new Title IX
regulations, said Adele Kimmel, senior attorney at nonprofit law group
Public Justice, in an interview. It also fits with the pattern of the
Education Department generally scaling back OCR enforcement, she said.
In an internal department memo circulated in 2017, then-acting head of
OCR Candice Jackson directed officials to stop trying to identify
systemic issues at colleges and universities when they were looking
into Title IX reports, unless students or others identified them in
their complaint. The deeper inquiries took more time but were a key
element of the Obama administration's investigative measures.
Though U.S. Education Secretary Betsy DeVos has long maintained OCR was
overburdened, she has slashed staff there. News reports document the
department offering buyouts and generally cutting down on the number of
OCR employees.
Investigations, meanwhile, can run for years and require significant time and effort from OCR.
As one of the most in-depth investigations OCR has ever conducted, the
nearly two-year probe of the University of Southern California (USC)
illustrates the lengths to which the office sometimes must go when
investigating.
USC failed to address multiple reports of sexual abuse by an on-campus
gynecologist, OCR found. To make that case, OCR interviewed nearly 100
witnesses, reviewed thousands of pages of documents and conducted
multiple campus visits.
The investigation resulted in a written agreement between USC and the
federal government that the university would fix its Title IX
procedures. It also includes a provision that an institution must
submit to federal monitoring for a period of time — in USC's case,
three years.
In the case of mediation, the department does not track the resulting
deal between a college and an individual who files a complaint with
OCR. It merely acts as an impartial facilitator between the two
parties, according to a 2018 manual on how OCR cases are processed.
Having to monitor fewer agreements stemming from formal investigations would lessen OCR's workload, Kimmel said.
The mediation process
Yet the mediation process can leave survivors dissatisfied if they feel justice has not been served in their cases.
The handful of survivors Education Dive spoke with said that although
the mediation process is voluntary, they felt Education Department
officials were pressuring them into it — presenting it as the best, and
in some ways only, option to settle their cases.
Robin filed a complaint with OCR in 2016 after she was sexually
assaulted while studying abroad. To her knowledge, her college did not
open a formal investigation after she reported the incident.
She didn't hear anything from OCR for years. That was, until early this
year, when an official reached out to tell her the case was a candidate
for mediation.
Shaken after not getting updates for years, Robin needed to mull over
the offer and so she did not respond to OCR immediately, she said in an
interview.
Robin ultimately made contact, but found OCR difficult to work with. On
multiple occasions, Robin said the official encouraged her to take
advantage of mediation, telling her she would have more freedom with
the process.
The official's behavior, she said, "seemed very pushy."
The department declined to answer Education Dive's question of whether
people who filed complaints were being pressured into accepting
mediation, as well as whether the pending Title IX regulations played a
role in its use of the process. The Office of Management and Budget has
meetings scheduled to review the rules through March 19, which is the
last step before they are finalized.
Andrea, who graduated college last year, said she felt some of the same
pressures from OCR when dealing with her complaint — which detailed
concerns about how her university handled her report of sexual advances
and assault by a professor — though ultimately her interactions with
the office have been positive.
She was unhappy with the university's response when she reported the
professor, particularly since he was still employed there after the
institution's investigation concluded. OCR was "responsive" when she
filed her complaint and offered her the chance to go mediation, she
said.
But, like the others, Andrea thought the way OCR framed mediation was
biased, presenting it as a way for her to ask for more than she would
through an investigation.
"It was almost like, 'Look at this bright, flashy option,'" Andrea said.
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