Buckling under enormous federal pressure, colleges nationwide have begun to impose newly sharpened sexual assault policies.
At the University of Minnesota, the number of sexual misconduct cases has also ticked up in recent years — though at its peak the school only investigated a dozen in 2014.
Offenders at the University have also faced stiffer discipline starting in 2011, the year the U.S. Department of Education started to threaten funding for schools that fail to adequately address sexual violence. Still, in almost 28 percent of cases, alleged offenders have been cleared of wrongdoing |after going through the University’s investigative and disciplinary processes, according to data obtained from the Office of Student Conduct and Academic Integrity.
The rate of students found responsible has sporadically jumped up from 50 percent in 2009 to about 67 percent in 2015. That means about one in four alleged offenders were not found culpable across the 43 reports of sexual assault, harassment or exploitation since 2009.
“Are more students being held accountable?” said W. Scott Lewis, an attorney and partner with the NCHERM Group, which advises educational institutions on risk management and best practices in areas like Title IX compliance.
“That statistic we do know has gone up nationally — but there’s also been more reporting,” he said. “What I’ve heard from some of the campuses we work with is because they’ve gotten better at investigating, more accountability is in place.”
For students found responsible of committing a sexual offense, University discipline has been inconsistent, the data shows. In sexual assault cases — which constitute a majority of cases at the University since 2009 — punishment almost always ranges between probation, suspension and expulsion. In the last seven years, one sexual assault offender received a “warning and admonition,” while three others were expelled for the same type of violation.
The University is not alone in those findings. Colleges nationwide accompany the school in grappling with campus sexual misconduct and face regular outcry from lawyers, victim advocates, faculty members and students.Federal requirements stipulate schools must investigate any claim of sexual misconduct, but those institutional investigation processes have drawn diverse criticism. Some say the process tramples accused students’ due process rights. Others argue that colleges and universities don’t take sex offense claims seriously or are too lenient on perpetrators.
Critics have also condemned schools for not being transparent about how they handle such reports. For its part, the University has been inconsistent and incomplete in disclosing information.
More than a month passed before the University responded to initial requests for public sexual misconduct data. The school’s incomplete response left out four cases in a five-year tally and also excluded other public information about the offenders’ identities. Nearly five months after the original request — in response to remaining questions about its accuracy — the University sent revised data showing 43 cases between 2009 and 2015.
Amid the rising number of sexual misconduct reports and investigations, the University is preparing to institute — most likely by the next school year — its newest round of changes for handling those cases.
Concerns over the school’s existing policies surfaced in July when the Board of Regents and University President Eric Kaler delayed a new affirmative consent policy. The “yes means yes” procedure, which has since been implemented, requires all parties involved in sexual activity to communicate willing participation with “clear and unambiguous words or actions.” Before its implementation, critics outside the University and some regents raised questions about how the proposed policy would affect due process and instances of ambiguous consent.
Since the federal government began directing schools to clamp down on sexual misconduct, dozens of students have sued their schools, alleging they were denied fair sexual assault adjudications. In some of those cases, courts have pointed out flaws in institutional adjudication — including the University of California, San Diego — whose policies closely resemble the University of Minnesota’s.
“There’s a school of thought that says universities ought to not be in this business … and it’s not a terrible argument,” said Regent Darrin Rosha. “But if we are going to have a process within the institution itself … we need to make sure that everyone’s interests are taken into account.”
National pressure builds up for colleges and universities
The heated issue of campus sexual assault came to a boil when the Department of Education declared in 2011 that, under Title IX, sexual violence constitutes sexual discrimination. In its “Dear Colleague” letter sent to college officials, the department — backed by President Barack Obama — shared “deeply troubling” statistics showing one in five women are sexually assaulted while in college. Suddenly, universities that failed to investigate and adjudicate such cases could lose millions in federal funding.
Other federal regulations established since then, like the Campus Sexual Violence Elimination Act, have put more heat on campuses to spur them into action.
“The Department of Education is saying, ‘You either crack down on this problem, or we’re not going to give you your federal money,’” said Michael Allen, a Cincinnati-based attorney who has represented several students who have been accused of sexual misconduct. “It’s all about Title IX; it’s all about federal money.”
Higher education institutions, including the University of Minnesota, have responded by revising their sexual misconduct procedures. Unlike criminal proceedings, which require evidence proving guilt “beyond a reasonable doubt,” schools were required to take action based on “a preponderance of the evidence” — in other words, when “it is more likely than not that sexual harassment or violence occurred.”
Those who have lauded the new rigor call it long overdue. They say it is a step up from a court system that affords victims less privacy and subjects them to long, probing police investigations and, sometimes, traumatic court appearances. Even if they are flawed, investigations and sanctions executed by school administrators provide a better opportunity for justice, they say.
Still, critics say the problem has yet to boil over: Many survivors don’t report sex crimes, and police often lack training in ways to work with trauma victims, said Adaku Onyeka-Crawford, an attorney with the National Women’s Law Center. “So victim-blaming and unfair questioning happens all the time.”
Some of the loudest criticisms have come from faculty and school leaders. University of Minnesota Regents have joined the likes of law professors hailing from the University of Pennsylvania and Yale University in expressing worries about the legality of potentially unjust decisions.
“My concern is we’re going to be on the hook for millions of dollars … by creating a policy that could create liability,” said Regent Michael Hsu, who first raised concerns about the school’s affirmative consent policy before its implementation.
Law professors at Harvard University were less equivocal.
“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and in no way are required by Title IX law or regulation,” 28 professors wrote in a 2014 Boston Globe opinion piece.
The White House has been joined in its efforts to address sexual assault on campus by several bills introduced in Congress aimed at standardizing college disciplinary proceedings. One bill, which has faced fierce opposition from victim advocates and others, would allow the standard of proof to be raised and would require schools to first refer cases to law enforcement before it could proceed.
The “dynamic process” of correcting procedures
Though the sentiment that higher education needs to rethink how it handles sexual assault is widely held, local and national experts’ opinions vary on how to best correct procedures.
After examining the University of Minnesota’s sexual assault and misconduct procedures, legal experts highlighted the school policies’ strengths and pointed out its potential flaws, including vague language and an apparent lack of due process in some areas.
The experts commended the University of Minnesota’s system of providing a hearing board in cases where either party requests a panel of faculty, staff and students instead of leaving the decision to administrators.
“That’s a pleasant contrast to the way that a lot of these schools have gone,” said Stephanos Bibas, a University of Pennsylvania law professor. “Under pressure, they’ve got rid of a live hearing and appointed a single investigator … who writes a report.”
However, eliminating hearing boards is one of several measures suggested by some University of Minnesota administrators and victim advocates, according to a report prepared last year at the request of Vice Provost for Student Affairs and Dean of Students Danita Brown Young.
After an external review of its policies, Brown Young said, the University of Minnesota has begun its own review of the student conduct code.
Changes could revamp how the code handles the topic of sexual offenses by updating some definitions and adding new terms like “sexual contact.”
The school could also start restricting students from sitting on disciplinary panels, Brown Young said. Instead, a potentially smaller panel of faculty, staff and some administrators specially trained in Title IX issues would handle cases of alleged sexual violence, said Kimberly Hewitt, director of the University of Minnesota’s Office of Equal Opportunity and Affirmative Action.
“This is a dynamic process that we are continually evaluating,” Hewitt said last fall. “I’m sure going forward we will determine we need to make other changes.”
Currently, when a student first reports a sexual assault at the University of Minnesota, it goes to the EOAA office where it is investigated by an attorney trained in Title IX issues. If the investigator determines it is more likely than not that misconduct occurred, they send a report to the OSCAI, and a staff member then notifies both parties of the findings.
If the accused student accepts the University’s initial conclusion and proposed disciplinary action, their punishment can range from the educational — such as warnings and counseling — to punitive, in the case of probation, suspension or expulsion. However, the person who reported the assault can ask for harsher sanctions or for the case to go to the University’s hearing panel, the Campus Committee on Student Behavior.
“We’re clear on making sure both parties know that it is totally fine to ask for more process around this; it’s OK to ask for a heavier sanction,” said Sharon Dzik, OSCAI’s director.
If the accused denies guilt, he or she can also request a hearing before the panel. Both the accused and the victim have the option of representation by an advocate or attorney. Neither side can question the other directly; rather, they can present questions to the panel, which decides whether to ask them.
Such processes, which span universities, have drawn criticism from skeptics who question the fairness of allowing panels made of students, faculty and staff without expertise to determine which evidence to use and how to examine it.
“Leaving the standard of evidence up to the arbitrary appointment of a Chair and panel is inappropriate, it is not fair to the complainant or the respondent and should be addressed,” Regent Darrin Rosha wrote in a July 2015 email to the chair and vice chair of the board.
Rosha, a military judge with a University law degree, said he’d also like to see parties represented by attorneys, with the University of Minnesota providing them to students who can’t afford one.
Of the 43 sex offenses adjudicated at the University of Minnesota since 2009, six cases were decided by a panel whose members receive about five hours of training per year, according to Becky Hippert, a Campus Committee on Student Behavior staffer. Half of that time is dedicated to sexual assault investigation and adjudications, she said.
If not properly trained, panelists can unfairly misunderstand victim behaviors. A well-trained member could recognize, for example, that a victim’s shifting story reflects the impact of trauma. An untrained member might interpret those changes as signs of dishonesty.
Of all the types of cases the panel hears, said University of Minnesota English professor and CCSB member Julie Schumacher, those involving alleged sexual assault are the toughest to adjudicate.
“The sexual assault [cases] are, of course, more distressing for everybody involved for obvious reasons,” she said. “It’s not an easy piece of committee service.”
Still, some say no amount of training can prepare a school hearing board to effectively handle sexual misconduct — potentially harming both victims and the accused.
“The simple fact is that these internal boards were designed to adjudicate charges like plagiarism, not violent felonies,” said a 2014 letter to the White House written by the Rape, Abuse and Incest National Network, a well-known anti-sexual violence organization. “The crime of rape just does not fit the capabilities of such boards. They often offer the worst of both worlds: They lack protections for the accused while often tormenting victims.”
The network noted that complaints of cases mishandled by colleges are numerous and on the rise.
At the end of 2015, the federal Office for Civil Rights was investigating 194 reports of mishandled cases across 159 campuses — nearly three times the number of campuses subject to investigations in mid-2014.
The University of Minnesota’s sexual misconduct proceedings are inconsistent both in student use and in sanctioning.
In a 2015 Association of American Universities survey, about 40 percent of University of Minnesota students said it was “very or extremely likely that campus officials would take action” against an alleged offender. Nearly 50 percent of students at the University of Minnesota said they believed the school would conduct a fair investigation.
Discipline handed out to those found responsible for sexual misconduct has varied dramatically at the school.
According to University of Minnesota records:
Last year, a student found to have sexually harassed a person was suspended for four years. Another sexual harassment case in 2015 resulted in mandatory workshop participation and probation. The year before, a person responsible for “digital penetration through clothes” also received one year’s probation.
In three separate 2013 sexual assaults, each person found responsible received about a year’s probation. Another person found responsible for sexual assault the same year was suspended for three semesters and agreed not to re-enroll for another three and a half years.
A person who “kissed and groped” a student in 2012 received a year’s probation, while a student found to have engaged in sexual contact with a 13- to 16-year-old that same year was given a similar penalty.
Dzik said that because more uniform disciplinary guidelines have been established in the last couple of years, sanctions have become somewhat standardized.
“We’ve always tried to be consistent. It’s just that we’ve finally put it in writing,” she said. “There’s been a general rise in the response to sexual assault in terms of more expulsions, more suspensions compared to [before]. That just has come from more understanding … of the violations.”
An estimated 23.5 percent of female undergraduates at the University of Minnesota were victims of sexual assault during their enrollment, according to the AAU survey. That figure is slightly higher than the national rate, 23.1 percent. About 5 percent of males at the University of Minnesota reported experiencing sexual assault or misconduct.
Far fewer cases are reported to authorities, however. From 2010 through 2014, an average of 21 sex offenses were reported per year to the University of Minnesota Police Department and other local law enforcement agencies. A fraction of that number were reported to the school. In the last three years, the University has handled an average of about nine cases per year.
Still, Dzik noted, the University has been successful in getting more students to report misconduct in recent years. Between 2009 and 2012, it investigated about four cases per year. The University of Minnesota has not retained complete data from before that time range.
“I don’t know that there’s more sexual assault happening … but there’s a lot more reporting of it because people are less willing to tolerate this behavior,” Lewis said. “The vast majority of people agree that campuses have to address this issue. … Campuses can’t go, ‘Well, this one’s too big of a crime for us.’”
Though the number of reported sexual misconduct cases is on the rise, Dzik said they still make up only a tiny portion of the hundreds of cases OSCAI handles yearly.
“We want to see more reports,” Hewitt said. “It’s not bad to have more reports; it means that there’s more confidence in the process, and people feel like they can come forward.”
University of Minnesota journalism student Linda Yang contributed to this story. This article was reported in partnership with the Minnesota Daily, MinnPost.com and the University’s School of Journalism and Mass Communication.