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May 14, 2015

Local conference details how Title IX applies to sexual violence on campus

“None of us wants murder, mayhem and rape on our college campuses,” the director of the Philadelphia office of the U.S. Department of Education Office for Civil Rights (OCR) said at a recent Title IX conference on colleges addressing sexual harassment and sexual violence.

“To the extent that you can prevent it — that you can educate everybody on campus, students, faculty, administrators, third parties — you want to do that. Why? Because it’s the right thing to do for the right reason,” said OCR regional office director Wendella P. Fox.

“God forbid, if it does happen, you want to deal with it as quickly as you can, as effectively as you can. Educate everybody about it, and to the extent that you can, prevent it from happening again,” said Fox, whose office is one of a dozen nationwide that enforces Title IX compliance.

While Title IX often is thought of in terms of equal opportunity in athletics, sexual harassment, including sexual violence, is one form of discrimination that is covered under the Title IX civil rights law that provides for gender equity in education.

OCR attorney Rhasheda Douglas said, “If you have notice of a sexual violence complaint, you have to take steps to eliminate the harassment, prevent recurrence and remedy the effects of the harassment,” not only on the complainant but also on the community.

The University, in collaboration with the Pittsburgh Council on Higher Education and OCR, hosted a daylong conference, “Handling and Investigating Title IX Complaints on College Campuses.” The May 5 event drew more than 300 participants — including Title IX coordinators, student affairs staff, university counsel, athletics and campus police from colleges and universities throughout the region  — to learn more about institutions’ responsibilities, best practices and OCR enforcement of Title IX compliance.

The event at the William Pitt Union included panel discussions, Q&A and breakout sessions on various topics, in addition to OCR’s overview of its operations.

How Title IX applies

If sexual violence is a crime, why must schools get involved in investigating incidents on their campuses?

OCR attorney Amy Niedzalkoski explained that while a criminal investigation may be going on in parallel, “when a school is looking at an instance of sexual violence on its campus, it’s doing it through a civil rights lens, not a criminal one.”

The standards of evidence differ in a Title IX investigation, which is decided on a 51 percent standard of the preponderance of the evidence, rather than a criminal investigation standard.

Institutions aren’t absolved of their responsibility to investigate the civil-rights aspects of an incident simply because a criminal investigation is involved, she cautioned.

Title IX prohibits sex-based discrimination in education programs and activities. It applies to everyday campus activities in classrooms, cafeterias and residence halls, sporting and cultural events. It also can apply to off-campus programs and activities such as school-sponsored recruitment events, study abroad and athletics away games, said Niedzalkoski.

Institutions’ responsibilities under Title IX also can come into play when students are involved in an incident off campus. For instance, if a sexual assault takes place in an off-campus apartment, or an incident involves social media, “you may have jurisdiction over that if the aftereffects spill onto your campus,” she said.

Institutions also may have obligations under Title IX if an incident involves a visitor to campus, such as a visiting team athlete or high school student attending a pre-admission program.


OCR attorney Douglas acknowledged she was preaching to the choir about an issue that is at the forefront of national attention. “You all understand it’s important to address sexual harassment and sexual violence on your campus,” Douglas said, recounting often-cited data that estimates one in five women is a victim of rape or attempted rape during her time in college. While the numbers are sometimes disputed, “one incident of sexual violence is one too many on our campuses,” she said.

Women aren’t the only victims, nor is sexual violence always a heterosexual issue, Douglas said, adding that campus LGBT populations also are affected.

Incidents most often occur between students who know one another, Douglas said, citing estimates that nine of 10 college victims of rape or attempted rape know their attacker. “Acquaintance or date rape is a lot more likely than attacks from strangers,” Douglas said, adding that the complex social relationships that often exist between the parties can make it difficult to determine whether sexual harassment occurred or whether advances were unwelcome.

Complicating matters further, “there’s a high correlation between alcohol and drug use and sexual assault on campus,” she said. “On average, at least 50 percent of sexual assaults of college students involve the use of alcohol or drugs by the perpetrator, the victim or both.”

The U.S. Department of Justice Office on Violence Against Women reports that only 2 percent of incapacitated rape victims actually report the sexual assault to law enforcement, “so we’re probably dealing with much higher numbers than those captured in the data,” Douglas said, adding that students may be fearful to report incidents if they’ve engaged in drinking or drug use.

Another troubling aspect: Sexual harassment and sexual violence is occurring even before students reach college age. “We have received complaints filed involving high school students and we’ve even received complaints that involved elementary students,” she said. “This is not just something that happens at college campuses,” she said, adding that a national study found that 40 percent of female rape victims first were assaulted before the age of 18.

“It’s very likely that you all are going to be welcoming students to your campus who have already been subjected to sexual violence or have even been perpetrators of sexual violence before they even get to your college campus,” she said.

Effects of sexual assault on campus

Sexual harassment or assault jeopardizes students’ academic achievement and can undermine their physical and emotional well-being, Douglas said.

Often a victim will withdraw from school or quit going to class. “They’re no longer participating in the excellent programs and activities that your college has worked so hard to put together,” she said.

Some victims experience depression or post-traumatic stress disorder, and prior mental-health issues may be exacerbated by an attack, Douglas said.

“Some go on to abuse drugs and alcohol and they often contemplate suicide as well.”

In addition to the impact on victims, a university’s reputation can be damaged by allegations of sexual abuse on campus, she said.

Title IX investigations

Cases are incredibly fact-specific, Niedzalkoski said. “You’ll probably never encounter the same facts twice, and even though you may have similar facts in two different cases, your outcome may be different. It might turn on something very small.”

Key to a Title IX investigation is determining whether a sexually hostile environment exists, she said:

Is there conduct of a sexual nature?

Rape, sexual assault or sexually motivated stalking all fall under the definition. However, conduct of a sexual nature can include innuendo, touching, unwanted sexual advances or requests for sexual favors, comments about an individual’s body, sexual activity or attractiveness as well as gender nonconformity, behavior or appearance.

Is that conduct unwelcome?

“Consent is something I think all schools are going to wrestle with,” Niedzalkoski said, adding that OCR does not mandate a definition of consent.

“Under Title IX you’re free to develop the approach you believe is appropriate to your campus,” she said, offering some general points to keep in mind when developing a definition of consent:

—“Consent has to be voluntarily given. You can’t consent if you’re incapacitated,” she said. Alcohol and drug use complicate the issue: Was there one drink or a bottle of vodka? How drunk is too drunk? How incapacitated is too incapacitated?

—A failure to complain about prior incidents doesn’t imply consent. “You may have a student who is harassed for not conforming to gender stereotypes 10 times over the past semester. And she doesn’t make a complaint until the 11th time. That doesn’t mean she consented to the first 10 incidents,” Niedzalkoski said.

—Past consent doesn’t imply future consent, nor does failure to resist mean consent was given freely, she said, adding that consent may be withdrawn at any time, even if an activity started out as consensual.

—If a change of heart is communicated, that consent has been withdrawn, she said, adding that the use of coercion, force or threats invalidates consent.

Did that unwelcome conduct of a sexual nature deny or limit a victim’s ability to participate in or benefit from a school program or activity?

Niedzalkoski advised looking at the conduct both from an objective and subjective point of view: What did the victim experience, but also how would a reasonable person of similar age and experience feel?

“You may have some victims who are very, very sensitive to something that, if a reasonable person were looking at it … it might have been unpleasant but probably doesn’t rise to the level of sexual harassment.”

What was the effect on the student’s education? Did the victim drop out? Begin skipping class? Choose to move off campus and begin commuting from home? Suffer psychological effects?

While cases must be decided based on the facts of the situation, “No matter what complaint comes in to you, you have to start the process,” she said.

It may end quickly if it fails to meet the basic criteria. “That’s a decision you’re going to have to make.”

When an institution has notice, however, it is obliged to investigate and, if a hostile environment is found, to take steps to end it.

Schools are obliged to take action when they know or should have known about incidents that meet the criteria.

“It’s not necessary for a victim to make a written complaint,” about an incident of sexual harassment or sexual violence, Niedzalkoski said. Perhaps a concerned parent contacted the school or a staff member witnessed an incident.

If an incident involved campus security, was reported in the media or if a practice is widespread or well-known, such as a student organization’s hazing ritual that reportedly has sexual undertones, “That’s probably enough to put you on notice,” she said.


Title IX sets out clear responsibilities for institutions, Niedzalkoski said: They must adopt and publish a notice of nondiscrimination; must designate at least one person as a Title IX coordinator, and must adopt grievance procedures to ensure prompt, equitable resolutions to sex discrimination.

OCR documents provide a “road map” for compliance, she noted, citing a 2001 sexual harassment guidance document, a 2011 “Dear colleague” letter and 2014 FAQs among the resources that are posted at

Pitt’s own SHARE (sexual harassment and assault response and education) information is posted at

—Kimberly K. Barlow