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Brandeis staff contradict effectiveness of sexual assault policy

Published: October 7, 2011
Section: Front Page


Brandeis University shifted its sexual assault grievance procedures after investigations of Title IX violations at two Ivy League schools earlier this year, but university staff—representing a range of legal, student life and academic interests—disagree over the severity of the problem on campus and the effectiveness of current policies to prevent and respond to sexual violence.

“A responsible campaign would go way beyond legal responsibilities and look at our community with compassion,” said Alwina Bennett, assistant provost for graduate student affairs and a public contact for the Rape Crisis Hotline who spoke about her personal views. “I think we may be so worried about violating Title IX that we sometimes forget what our goal is.”

University President Fred Lawrence said Brandeis does a better job than other schools of preventing sexual violence.

“I would say the watch word here should be vigilance but not overkill,” Lawrence said. “I don’t think that we have as serious a problem as some other institutions do, which is not to say that we don’t have an issue that we have to focus on as well.”

Some faculty and administrators said Brandeis does not fully comply with the obligations and recommendations of Title IX guidance. On April 4 the Department of Education sent a new guidance letter, reminding school administrators of their obligations to comply with Title IX.

Bennett questioned whether Brandeis launches the mandatory, internal Title IX investigation required when the school hears of a complaint, regardless of a student referral and separate from any criminal law enforcement investigation.

“Biden and the Office for Civil Rights says there has to be an investigation. I don’t know how we do that. Often times the investigation is left to the students,” Bennett said. “I think the university needs to clarify what it means to do an investigation.”

Dean of Student Life Rick Sawyer acknowledged confusion over the internal investigation mentioned in Title IX.

“The term ‘investigation’ in the context of the Dear Colleague letter was ill-defined and makes it quite understandable that people would have different standards and vision for what constitutes a sufficient investigation,” Sawyer wrote in an e-mail on Thursday.

Discussing the policy changes implemented in the spring, Sawyer said that Brandeis already provides an effective safety net for students.

“Our students are at the top of the pile when it comes to saying they feel safe on this campus,” Sawyer said in April. “We didn’t need a letter from Title IX to tell us to do this.”

Brandeis reported three sexual assaults between 2007 and 2010, according to campus police, and brought one sexual assault case before the student conduct board last semester, Dean Gendron, the director of community rights and standards, said.

“I do not believe that those [numbers] represent what happens in our community,” Bennett said.

Halee Brown ’13, who is president of TRISK, a campus LGBT and ally group, spoke about her personal views and said there is confusion over reporting procedures.

“I think that the rules of who is a mandated reporter need to be redefined,” Brown said.

Bennett estimated that on campus there are likely four to five times as many forcible sex offenses each year than the cases already reported.

Those statistics—four sexual assaults in more than four years at a school of 3,300 students—contrast sharply with widely cited national data that one in five women will be victims of sexual assault in college.

Professor Bernadette Brooten (NEJS) said that Brandeis, like other schools, suffers from under-reporting.

“When there’s such serious under-reporting, I have questions. There has to be a problem when there’s so much under-reporting,” Brooten said.

Gendron too said that he believes there is under-reporting of crimes of sexual misconduct at Brandeis and in other communities.

When asked if Brandeis suffers from under-reporting of sexual assaults, Scot Bemis, vice president for human resources and the university’s Title IX coordinator, responded differently from Brooten and Bennett, writing in an April e-mail, “I really have no way to judge this. I do know that we take every report we receive seriously …”

“I’m glad that we don’t have the issue to the degree that some other schools do, and that they’ve had to deal with it in a very public way,” Lawrence said. “That doesn’t mean that we don’t need to focus on this.”

Lawrence said that sexual assault policy would be a new topic for Senior Vice President for Students and Enrollment Andrew Flagel to evaluate and one that Lawrence will discuss with the Faculty Senate.

Vice President Joe Biden and Secretary of Education Arne Duncan led the Obama administration’s effort to focus on sexual violence during the past six months. They spoke at the University of New Hampshire in April, as the Office for Civil Rights released new guidance for administrators to comply with Title IX of the Education Amendments of 1972.

This fall, Biden and the White House launched a new initiative called 1is2Many, aiming to prevent dating violence and sexual assault by targeting student feedback through social media.

“The only way we’re going to stop it is for all of us to speak up and act and make it clear that violence against women will not be tolerated at your school, on your campus, at any time, for any reason—period,” Biden said in a video message. “I want to know from you … What has your school done to make you feel safer? What could they do that they’re not doing to make you feel safer?”

Title IX made many national headlines in the spring, with the Department of Education investigating both Yale University and Harvard Law School for complaints alleging that school policies on sexual harassment and sexual assault violated federal law under Title IX.

“The situations at Yale and Harvard Law provide an impetus for us to review our own policies and procedures,” Bemis wrote in April. “While we are confident that our policies fully comply with current law, we will use these incidents to reflect upon our current practices …”

The guidance sent to school administrators in April contained a combination of recommendations and requirements. Brandeis receives federal financial aid, so it is not exempt from the requirements even though it is a private university.

The Office for Civil Rights recommends that teachers, staff and administrators undergo training to better understand appropriate campus responses to sexual harassment or sexual violence. Nearly two dozen faculty say they have never received this type of training.

In many cases the guidance explained how schools should work to prevent sexual violence. And in some areas, it reminded administrators that failure to abide by the proper policies could jeopardize a school’s compliance with Title IX, a provision of the 1972 law banning sex discrimination by all schools receiving federal financial assistance.

Administrators and faculty disagreed over whether the changes would significantly impact the environment for reporting and hearing cases of sexual assault at Brandeis.

“Rights and Responsibilities needed to undergo very little renovation, so to speak, in order to come into compliance because of the type of campus that we are fortunate to work and study at,” Gendron said.

One of the most important requirements is the obligation for universities to conduct internal investigations when they hear of sexual assault or harassment.

“Regardless of whether a harassed student, his or her parent, or a third party, files a complaint under the school’s grievance procedures or otherwise requests action on the student’s behalf, a school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation,” Russlynn Ali, assistant secretary for Civil Rights wrote in the April 4 guidance letter.

Sawyer defended the Brandeis procedures, explaining that “when a student reports that he or she has been harassed or assaulted, every effort is made to pursue the facts.”

Students are encouraged to report sexual assaults to university and local authorities. If harassment has occurred, immediate action is taken to end the behavior, he said.

“On our campus, when a student chooses not to file a complaint or will only do so anonymously, much thought is given to protecting the safety of the complainant,” Sawyer wrote. “However, the OCR recognizes that a university’s ability to investigate and respond in this instance may be limited.”

Acknowledging the confusion and vagueness of certain Title IX recommendations and obligations, Sawyer wrote that “during the collection of facts I am empowered to take immediate action to protect the safety of the reporting student and others if need be.”

The most significant change in university policies was a shift to a lesser burden of proof for cases of sexual assault heard before the student conduct board.

Like many other universities, prior to the April guidance, Brandeis used a “clear and convincing standard” as opposed to a “preponderance of the evidence standard” required by Title IX.

Under the “clear and convincing standard,” it must be “highly probable or reasonably certain that the sexual harassment or violence occurred,” but under a “preponderance of the evidence,” it must only be “more likely than not that sexual harassment or violence occurred,” according to the letter.

“Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of civil rights laws, and are thus not equitable under Title IX,” Ali wrote in the letter. “Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.”

The shift in evidence standards took effect immediately in April and incorporated into the Student Rights and Responsibilities handbook this summer.

“The [new] standard is too low for something that can be so life-changing,” Bennett said. “We need to be a little more sure.”

Gendron defended the new standard, explaining that even with the new standard, “in our system … the burden of proof is on the accuser.”

“Whenever students are accusers, we are looking to provide due process to all parties,” Gendron said.

Following the OCR guidance, another change in Brandeis policies was that in cases of alleged sexual assault, both the accuser and the accused student have the right to appeal.

In addition, effective April 4, conduct board hearings for sexual assault do not allow parties to communicate directly, Gendron said. Both parties can be in the same room, but questions can be asked through a chairperson or communicated via a video conference from a separate room, for example.

Brooten explained one of the problems students face is that faculty are not always willing to advise students on the conduct board process, afraid of the impact on their job.

“Faculty tend to be taught that we are only responsible for academic matters,” Brooten said. “I would love for the faculty to be more involved in preventing sexual violence on campus. It’s part of our educational mission to discuss it with students.”

Tenured faculty, however, can advise students from a different position.

“Tenured faculty can be a helpful adviser because tenured faculty can stand up for students’ rights,” Brooten said. “Tenured faculty don’t have to be afraid for their positions.”

The broader question that administrators faced after reviewing the guidance was whether to launch new grievance procedures specifically for cases of sexual assault. Brandeis has chosen to keep its current student conduct system for the cases, administrators said, explaining the benefits of peer evaluation.

But the larger issue is how many cases of sexual misconduct appear before the conduct board. Since Gendron assumed his position as director of SRCS in June 2009, the board has only heard one case.

Reporting at Brandeis reflects a national trend exacerbated on college campuses where victims are afraid to report sexual assault because it is such a personal crime.

“It’s like the hardest thing in the entire world to deal with,” Brown said. “It just shakes every bit of your foundation.”

Bennett explained that sexual assault on college campuses is a complex issue to address because most conflicts involve peers and not strangers.

“We’re not talking about some stranger holding a knife to someone’s throat generally. We’re talking about somebody in someone’s suite or class,” Bennett said. “You’re also talking about a population that is relatively inexperienced despite a sophisticated veneer.”

“I wish there was a silver bullet that I could offer on this issue because no administrator wants to come into these roles and feel that they’ve let down that trust in protecting the student body and creating an appropriate learning atmosphere,” Flagel said.