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  • U.S. Department of Education Finds Tufts University To Be In Violation of Title IX

    On Monday, the U.S. Department of Education found Tufts University to be in violation of Title IX due to its mishandling of sexual assault and sexual harassment complaints. The Department’s recent finding stems from a formal Title IX complaint that was filed by a Tufts student in 2010 alleging that the school did not promptly investigate her complaint that she was sexually assaulted by another student.

    Title IX is a federal law that requires schools to prevent, address and investigate incidents of sexual harassment, sexual violence, and sexual abuse.  The U.S. Department of Education’s Office for Civil Rights (“OCR”) enforces Title IX. Typically, if OCR commences an investigation and determines a school is operating in violation of Title IX, the agency will try and work with the institution to execute a resolution agreement. In the resolution agreement, OCR illustrates the suggested reforms the institution should implement in order to enhance campus safety and improve sexual assault investigation procedures. In the resolution agreement, agency and campus officials also set forth the policies the institution should adopt in order to remedy its noncompliance with Title IX. In extreme cases, OCR has the authority to make a formal declaration of noncompliance and withhold federal funds from the institution.

    After a lengthy investigation into the 2010 incident, OCR determined that Tufts “failed to provide prompt and equitable responses to student complaints of sexual assault and harassment, as required by Title IX.” OCR claims that Tufts mishandled its sexual assault investigation in that it waited nearly six months to launch an investigation, it did not offer the alleged victim appropriate interim options (such as moving out of the dorm where both she and the accused lived), it did not issue a decision for eighteen months after the allegations were brought to the school’s attention, and it required the alleged victim to attend a leadership class alongside the accused or else face removal from the program. OCR also claims that Tufts violated Title IX insofar as it did not employ a Title IX coordinator for two years, did not investigate claims of sexual assaults until they were incorporated into written complaints and failed to provide the appropriate protections to a complainant during a sexual assault investigation.

    Since the launch of the OCR investigation in 2010, Tufts has worked with OCR in an effort to resolve the 2010 complaint and remedy its noncompliance with Title IX. On April 17, 2014, Tufts and OCR formally executed a resolution agreement whereby Tufts agreed to comply with a long list of steps to resolve the concerns that OCR identified in its investigation into the 2010 incident. Tufts has “worked hard in recent years to improve how we respond to complaints of sexual misconduct, investigate them, and impose appropriate penalties while respecting the rights of all parties,” stated Tufts president Anthony P. Monaco. “We acknowledge that more could have been done to address the student complainant’s concerns at that time. We have since taken steps to remedy that situation” stated a university spokesperson. “We’ve learned over the years how to do these things a lot better, and we’re learning all the time,” stated Mary R. Jeka, senior vice president and general counsel of Tufts University. “We hope to get better at it with every case, but we obviously know a lot more today than we did in 2010.”

    However, just a few days after executing the resolution agreement, OCR found that despite Tufts’ extensive efforts to remedy its noncompliance, Tufts remains in violation of Title IX. In its post-finding statement, OCR acknowledged that Tufts had made “important improvements to its policies, however, more changes are necessary to ensure the safety of more than 10,000 students.”

    In response to this finding, on April 26, 2014, Tufts informed OCR that it was revoking the previously executed resolution agreement. According to Tufts, at the time the resolution agreement with OCR was executed on April 17th, OCR did not advise the school that its current sexual assault policies did not comply with Title IX, rather, it only advised the school that its past policies did not comply with Title IX. “I felt that I was sort of misled,” said Ms. Jeka. “We would not have signed the agreement if that were made explicit to us.”

    “Under these circumstances, on April 26, we regretfully revoked our signature from the Voluntary Resolution Agreement,” according to the Tufts statement. “We could not, in good faith, allow our community to believe that we were not in compliance with such an important law.” “Tufts University is surprised and disappointed that the Department of Education’s Office for Civil Rights has declared the University to be out of compliance with Title IX,” the university spokesperson said in a statement. “We have in place and fully support policies and procedures that comply with Title IX, are consistent with the significant guidance documents issued by the department and effectively serve our students, faculty and staff,” spokeswoman Kim Thurler said. “The Department’s recent announced finding has no basis in law and we have requested to speak with OCR’s Washington office to discuss this unexpected and troubling announcement.”

    Despite the school’s revocation, Tufts officials have confirmed that they will continue to introduce new sexual misconduct response programs even while contesting OCR’s recent finding of noncompliance. However, as a result of Tufts’ express breach of the agreement, the Department of Education said that it “may move to initiate proceedings to terminate federal funding,” something that has never been done before.

    Tufts’ revocation of the resolution agreement marks an unprecedented display of discord between a higher education institution and OCR, the federal agency that enforces Title IX. An exceptional number of Title IX complaints accusing colleges and universities of mishandling sexual assault investigations have been filed in the past year, and colleges and universities should closely monitor the Department’s decision to possibly impose sanctions and withhold federal funding from Tufts. Moreover, in light of the White House’s recent attention on sexual assaults and Title IX, schools are encouraged to review and revise their policies to make sure that they are complying with their Title IX obligations, properly investigating claims of sexual assault, and reducing the risk of sexual assault.

    If your institution has questions or concerns about this topic and you would like further information, please email James G. Ryan at jryan@cullenanddykman.com or call him at (516) 357-3750. This article was written with Hayley Dryer, an associate at the firm.