OCR Enters a Resolution Agreement with the University of Virginia

On September 21, 2015, the U.S. Department of Education announced that its Office for Civil Rights entered into a resolution agreement with University of Virginia ("UVA" or "University") to ensure that the University complies with the requirements of Title IX of the Education Amendments of 1972 ("Title IX"), which prohibits discrimination on the basis of sex in education programs and activities operated by recipients of Federal financial aid. The resolution agreement came to fruition after an OCR investigation determined that between 2008 and 2014, UVA had a "mixed record" of Title IX compliance.

OCR issued a Letter of Finding on September 21, 2015, determining that UVA violated Title IX because:

The University's Sexual Misconduct Policy (SMP) failed to provide a "reasonably prompt timeframe for the major stages of the complaint process" including a timeframe for completing an investigation, initiating a hearing, and resolving appeals.

The University's informal resolution process was structurally flawed and inequitable because if, during the course of the informal resolution process, the accused admitted to wrongdoing, the University would proceed with sanction recommendations without first conducting an independent investigation into the complainant's allegations. Such a process was inequitable as to both the alleged victim and perpetrator because it allowed for the "imposition of sanctions that the University has not determined to have occurred."

On at least two occasions during the formal resolution process, the University failed to provide for prompt and equitable resolution when it, among other things: (1) took five months to schedule a hearing after completion of an investigation in a particular case and (2) allowed a student accused of sexual assault to file a late cross-claim against the complainant without conducting an independent investigation into the accused's allegations and without giving the original complainant adequate time to prepare to defend against the cross-complaint. The University's decision to allow the accused to file a late cross-claim that would be addressed at the already scheduled hearing without a separate investigation in the validity of the cross-claim was inequitable.

The University implemented a practice by which the Associate Dean of Students served both as the Deputy Title IX Coordinator for Student Sexual Misconduct and as the Chair of the Sexual Misconduct Board (SMB). These dual roles created the appearance of a conflict of interest because the Deputy Title IX Coordinator was responsible for receiving complaints, implementing interim measures and selecting the SMB panel for the hearing, but as the Chair was responsible for facilitating the hearing, guiding the panel in its questioning of witnesses, and issuing the first draft of the panel's decision.

The University relied too heavily on the parties to identify relevant evidence by requiring the parties to submit a list of witnesses and relevant evidence they wished to present at hearing. Under Title IX, UVA had the responsibility to make an informed and independent judgment of what evidence the SMB panel needed to use in adjudicating the complaint. By relying on the parties' evidence and witness list without independently determining what evidence was necessary to make an informed decision, this process undercut the SMB's ability to meet its responsibility to conduct an adequate, reliable, and impartial investigation and determination.

The University failed to take appropriate action in 22 of 50 reports made by students between 2008 and 2012. In nine reports, there were no records that UVA ever conducted investigations. An additional four were referred to local police, but were not independently investigated by the University. The other nine reports were made by complainants requesting confidentiality or that no investigations occur, but UVA appeared to make no effort to even evaluate such requests "in the context of its responsibility to provide a safe and nondiscriminatory environment for all students." (In the words of OCR.) OCR noted that between 2012 and 2014, the University continually failed to evaluate its responsibility to provide a safe and nondiscriminatory environment when evaluating confidentiality requests.

The Title IX Coordinator did not adequately coordinate and oversee all Title IX complaints. For example, in practice, complaints were handled within academic departments by department staff who were not properly trained. Department staff often failed to report complaints to the Director of Equal Opportunity Program (EOP), who also served as the Title IX Coordinator. Furthermore, even when reported to EOP, the Director of EOP had only limited involvement and oversight over the departments' responses to student complaints.

The University did not include a compliant notice of nondiscrimination in locations other than the EOP website. This nondiscrimination notice was only directed to employees and failed to address how the University's policies regarding nondiscrimination applied to students in the University's broader programs and activities.

Ultimately, OCR determined that UVA actions, or inactions, created a sexually hostile environment when it failed to take prompt and equitable action in responding to formal and informal complaints and reports and when it neglected to assess whether a hostile environment existed or take steps to prevent its reoccurrence. As a result of OCR's findings, on September 17, 2015, UVA and OCR entered into a Resolution Agreement whereby UVA agreed to, among other provisions:

Continue to follow its revised Title IX grievance procedure, which the OCR has deemed to be fully compliant;

Ensure that agreements with student organizations clearly state that sexual harassment, sexual violence, and retaliation are prohibited and that the organizations are required to comply with the University's Title IX policies;

Regularly train students, faculty, administrators and other staff on issues related to sexual harassment and violence, including University policies and procedures;

Widely disseminate its notice of nondiscrimination;

Improve outreach to and feedback from students through focus groups and annual climate assessments;

Develop and implement a system for tracking and reviewing all reports, investigations, interim measures, and resolutions;

Review all complaints from the 2011-12; 2012-13, and 2013-14 academic years to determine that each complaint was handled properly and take action to address any deficiencies; and

Submit to OCR for review all complaints filed by students for the 2014-15 and 2015-16 academic years.

Note:

This month, Michigan State University also entered into a resolution agreement with OCR in response to an OCR investigation revealing several Title IX violations between 2009 and 2014. Through its investigations, OCR has made it abundantly clear that it will prioritize ensuring that schools that receive federal funding do not deprive students of access to education on the basis of sex, including sexual harassment and violence. Consulting with California legal counsel can help schools and post-secondary institutions comply with Title IX requirements as well as overlapping state law mandates.