Contradictions and Enforcement Problems: Office of Civil Rights UNC Chapel Hill Title IX Investigation Report Leaves Much to be Desired
On June 25, 2018, the Office for Civil Rights’ (“OCR”) concluded its five-year long Title IX investigation into the University of North Carolina (“UNC”), finding the nation’s oldest public university to be in violation of Title IX. While the conclusion of an investigation of this scope is monumental, the findings within the report leave schools, students and advocates in the dark as to what Title IX guidelines apply. OCR investigated five possible violations at UNC, concluding that there was only one clear violation of Title IX and two possible violations which would require further investigation. Specifically, UNC failed to provide both complainants and respondents with a prompt and equitable outcome because the current UNC Discrimination Policy does not delineate accessible grievance procedures.
First, the procedures outlined in the UNC Discrimination Policy from 2011 to present do not explicitly state the process for providing notice of further review of a complaint or outcome appeal. Title IX requires that a policy specify whether the educational institution will provide notice of the outcome, or actions such as reasonable delay within the investigation, to the involved parties. Current UNC policy states that the institution must provide notice of an outcome to both the complainant and the accused, but does not clarify the requirements of notice in the event of an appeal or further investigation. OCR concluded that the lack of clarity therefore deprives parties (specifically accused students) of access to equitable proceedings.
Additionally, OCR found that UNC’s appeals process for Title IX complaints regarding student-faculty incidents is inequitable because it only allows one party to appeal the outcome. However, this element of OCR’s finding is in direct opposition to the current administration’s rollback and reframing of student’s rights under Title IX. In 2017, the Department of Education under Secretary Betsy DeVos revoked key Obama-era Title IX guidance, including the 2011 Dear Colleague Letter and the 2014 Q&A, and instead issued the 2017 Q&A interim guidance, which gives schools the ability to retract a complainant’s ability to appeal a decision while continuing to allow respondents to appeal an unfavorable outcome. Therefore, this recent UNC OCR finding that allowing only one party to appeal an outcome is inequitable appears to be in direct contradiction to the DeVos administration’s stance.
Furthermore, the final report from OCR revealed that UNC has an alarmingly low rate of complaints that proceed through the formal adjudication process. During the 2014-2015 school year and the fall of 2015 (a seventeen month period), UNC’s Equal Opportunity and Compliance Office received 285 complaints of sexual harassment and sexual violence, yet only 18 of the 285 (approximately 6%) complaints resulted in a formal investigation. This shockingly low percentage indicates that the other 267 complaints were either dropped before entering formal proceedings or concluded through an informal process to attempt resolution. Such a lack of information left OCR unable to assess the extent of the concerns pertaining to the provision of a prompt and equitable proceedings in practice. While these statistics did not inform OCR’s findings, it is important to note two things: first, the 285 reported sexual assaults barely represent the whole of the sexual assault epidemic plaguing the school; second, having perceptibly inequitable or drawn-out proceedings may discourage survivors to come forward. Without further data, OCR was unable to determine the impact that a disparate policy had on the timeliness of investigations, and the subsequent effect on reporting rates.
In response to OCR’s Letter of Findings, UNC signed a resolution agreement to provide data on the institutions’ sexual violence patterns on campus, receive visits from OCR to monitor compliance and provide reports or data as requested by OCR. If UNC breaches the agreement, OCR may take administrative or judicial action against UNC to ensure enforcement. While OCR’s findings highlight the standards which educational institutions should meet to comply with Title IX, the lack of concrete disciplinary action equates to a mere warning for violating Title IX. The message here is clear: while the resolution of a five year complaint provides justice for the survivors involved, the Department of Education’s action is a mere facade of support for survivors as the DeVos administration is unwilling to place necessary pressure on educational institutions to ensure reform.
Authored by Meredith Tolleson & Mackenzie O’Brien, SurvJustice Legal Interns
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