Higher Education Compliance and the Scourge of Campus Sexual Assaults
Chief Compliance Officers who lament the challenges of their jobs should be thankful they are not in charge of compliance for higher education institutions. The culture of compliance has extended into many high-risk areas but one area where compliance is catching up is higher education.
Universities and colleges face a myriad of regulatory requirements, many of which are imposed by federal and state governments in exchange for financial support or assistance to students. In addition to these specific requirements, universities and colleges face common risks relating to FCPA compliance, health and safety, healthcare (especially for university medical schools and hospitals).
One significant area of challenge is the issue of sexual assaults. One in five women are sexually assaulted in college. Usually, the victim knows the perpetrator, and the victim decides not to report the crime. Less frequently, men are victims of sexual assaults in college.
Universities and colleges face a number of federal requirements relating to campus sexual abuse:
- Title IX of the Education Amendments of 1972, requires schools that receive federal financial assistance to take necessary steps to prevent sexual assault on their campuses, and to respond promptly and effectively when an assault is reported.
- Title IV of the 1964 Civil Rights Act also requires public schools to respond to sexual assaults committed against their students.
- The Clery Act (known as the Campus Security Act) requires colleges and universities that participate in federal financial aid programs to report annual statistics on crime, including sexual assault and rape, on or near their campuses, and to develop and disseminate prevention policies.
The Department of Education’s Office for Civil Rights (OCR) is charged with administrative enforcement of Title IX in schools receiving financial assistance from the Department. OCR may initiate an investigation either proactively or in response to a formal complaint. If OCR finds a Title IX violation, the school can lose its federal funding.
The Department of Education’s Federal Student Aid (FSA) office is responsible for enforcing the Clery Act, and conducts on-site reviews to ensure compliance. If a school is found to have violated Clery, FSA directs it to take steps to comply and can impose fines for violations.
The Justice Department is responsible for coordinating enforcement of Title IX across all federal agencies. DOJ shares authority with OCR for enforcing Title IX, and may initiate an investigation or compliance review of schools receiving DOJ financial assistance. DOJ can initiate litigation, including upon referral from other federal agencies, or seek to terminate DOJ funds. DOJ is also responsible for enforcing Title IV. DOJ can use its authority under Title IV, Title IX, and other federal civil rights statutes to bring all facets of a school, including its campus police, and local police departments into compliance with the law.
One significant area for reform is the manner in which sexual abuse cases are investigated. Strangely, many sexual abuse cases are no referred for criminal prosecution to local law enforcement. Some are referred and handled like traditional criminal cases.
Sometimes the school and the local police run parallel investigations. A local criminal prosecution, however, does not mean that the school does not have to investigate the case – the school has an independent obligation to address the case.
Universities and colleges are considering new models for investigating claims of sexual abuse, resolving factual issues, imposing discipline and providing some means to appeal a decision. Traditionally, universities and colleges have used judicial boards or college judicial counsels to resolve these cases.
One idea for improvement is to create a single, professional investigator. Obviously, the investigator would have to be independent from the university or college administration.
Whatever model is ultimately adopted, the important principle to maintain, as in other contexts, is investigator independence. Like any internal investigation, the credibility of any investigation depends on an objective review and resolution of the facts.