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  • UPDATE: Tufts Reverses Position and Re-executes Title IX Resolution Agreement with OCR

    We recently reported that on April 26, 2014, in response to the U.S. Department of Education’s Office of Civil Rights (“OCR”) finding that Tufts University remained in violation of Title IX, Tufts informed OCR that it was revoking a previously executed resolution agreement.[1]  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. As a result, Tufts revoked its signature on the resolution agreement because it “could not, in good faith, allow the community to believe that it was not in compliance with such an important law, Title IX.”

    As a result of Tufts’ express breach of the resolution agreement, which symbolized an unprecedented display of discord between a higher education institution and the federal government, the Department of Education threatened to initiate proceedings to terminate federal funding, something that has never been done before, although possible under Title IX. Additionally, more than 100 students held the largest university rally in over three decades and chanted “re-sign or resign, we need our Title IX” while publicly denouncing the University’s decision to withdraw from the agreement.

    Now, in an unusual development, Tufts has reversed its position, accepted OCR’s finding, and re-signed the resolution agreement. The reversal comes after the President of Tufts, Anthony P. Monaco, met with Catherine E. Lhamon, the Assistant Secretary for Civil Rights, in Washington D.C. last week. “We had a productive conversation which clarified OCR’s concerns with Tufts’ Title IX compliance,” President Monaco said in a publicized statement. During this meeting, OCR specifically explained how Tufts broke the law and “was very clear about what we have to do” stated President Monaco.

    A spokesperson for Tufts announced the University’s formal recommitment to the signed agreement on Friday, May 09, 2014, though President Monaco admits to officially reaffirming the University’s commitment to the resolution agreement during his meeting with Ms. Lhamon in D.C. “I really want to put this behind us now and work forward in partnership with OCR to make our campus as safe as possible,” said President Monaco. “The safety of each member of the Tufts community and Tufts’ ongoing compliance with Title IX continue to be among my highest priorities as president.” “What’s really important here is that our students who are victims feel well supported, that we have all the measures for education and prevention in place, and that we will not tolerate sexual assault on our campuses.”

    Pursuant to the reinstated resolution agreement with OCR, Tufts must carry out a series of steps in order to fully remedy its noncompliance with Title IX. For example, Tufts must report annually to OCR, provide regular Title IX training for all students and employees, document all reports of sexual misconduct, and provide timely and appropriate interim reprieve for complainants. Tufts must also submit all proposed revisions to policies, procedures and outreach to OCR for review. “We look forward to working collaboratively with the OCR to address the terms of the agreement as we continue implementing best practices that meet the needs of our community, “ President Monaco said in a statement. “We will keep the community informed of the ongoing efforts to ensure a campus culture that is safe, respectful, and supportive of every individual” vowed Monaco.

    Assistant Secretary Lhamon praised Tufts “for taking swift action to cure its breach” of its agreement with OCR. “I look forward to working with President Monaco and the university community to ensure the safety of all students on campus,” Ms. Lhamon added.

    Tufts University is not the first, nor the last higher education institution to be placed in the national spotlight over its mishandling of sexual harassment and sexual assault complaints. Earlier this month, in an unprecedented move, the U.S. Department of Education’s publicly released a list of 55 colleges and universities currently under investigation for allegedly mishandling complaints of sexual assault and sexual harassment in violation of Title IX. Also within the past month, the White House released “Not Alone,” the first report of the White House Task Force to Protect Students from Sexual Assault and the Department of Education released a Title IX Q&A for colleges, universities and public schools. OCR’s stern position in the Tufts case is just another example of a new era for Title IX enforcement by the federal government.

    In light of the White House’s recent attention on sexual assaults and Title IX and the unprecedented number of complaints recently filed with the Department of Education, we encourage schools to provide regular Title IX training to students, educators and all members of the campus community. Schools must comprehensively review their investigation procedures, sexual misconduct policies, and prevention techniques in order to ensure compliance with Title IX and the Department of Education’s heightened expectations.

    If you or your institution has any questions or concerns regarding education related issues, please email Cynthia A. Augello at caugello@cullenanddykman.com or call her at (516) 357-3753. This article was written with Hayley Dryer, an associate at the firm.