Are Colleges the Best Investigators of Campus Sexual Assault?

Title IX of the Education Amendments of 1972 prohibits sex discrimination in federally funded education programs. As part of this protection, institutions of higher education are required "to take immediate and effective steps to end sexual harassment and sexual violence."

This places the burden of investigating campus sexual assaults on the colleges themselves. And as a slew of recent investigations have shown (if you can call 161 schools facing scrutiny in 199 cases of sexual violence a "slew"), those colleges are either unwilling, unable, or indifferent to investigating sexual assault on campus, especially those involving athletes.

This begs the question: Are colleges and universities in the best position to investigate allegations of sexual assault? Or is there another way for schools to meet their Title IX requirements?

Teaching vs. Fact-Finding

First and foremost, colleges and universities must ensure their students are safe. And clearly that means doing everything possible to eradicate sexual assault on campus. But when it comes to investigating alleged sexual assaults, there are a few reasons why schools might not be the best at it.

The first is just a matter of experience. It wasn't until 2011 that the Department of Education made it clear that schools could be fined or denied federal funding for Title IX violations regarding sexual assault investigations. Secondly, educational institutions often lack the qualified personnel to perform adequate investigations. Across the board, there have been complaints about a lack of uniformity, independence, due process, and victim protection in campus assault investigations and hearings.

There are plenty of criticisms with how the criminal justice system -- with professionally trained investigators, lawyers, and judges -- handle sex assault accusations and charges. Colleges and universities can be even less equipped to handle these allegations properly. These insufficient procedures and investigations do a disservice to all parties and incur additional legal liability for schools.

Assault and Athletics

Beyond the inability to adequately investigate and adjudicate sexual assault charges, there is often a conflict of interest involved when the accused is a student-athlete. Any case of assault puts a school in the unfavorable position of arbitrating between two students, both of whose interests it would ideally represent. But when one party is an athlete, the interest and influence of the school's athletic department can have further negative influences on the investigation.

That conflict is highlighted in a lawsuit filed by six women accusing the University of Tennessee of numerous Title IX violations involving sexual assaults by male athletes. The suit claims the school's process for investigating accusations of sexual assault "denies victims the rights to a hearing and to the same equal procedural, hearing, and process rights as given to perpetrators of rape and sexual assault." In particular:

"UT intentionally acted by an official policy of deliberate indifference to known sexual assaults so as to create a hostile sexual environment. UT had actual notice (and itself created) a long-standing, severely hostile sexual environment of rape by male athletes (particularly football players) that was condoned and completely unaddressed by UT officials."

In another Title IX lawsuit against Kent State, a former softball player claims her own coach attempted to cover up her sexual assault because the coach's son, a Kent State baseball player at the time, was the perpetrator. Schools are already bad at investigating sexual assaults; they seem to get worse when athletes are involved.

Any Answers?

So what options are schools left with? Colleges and universities will always bear the moral and legal responsibility to prevent sexual assaults on campus, and until they are better equipped to deal with accusations and investigations, they will fail to meet that burden.

Is the answer referring all cases to local law enforcement? What about student privacy issues? And what about cases where a school's code of conduct is stricter than existing criminal statutes?

Whether the extensive pending Title IX litigation leads to more uniform and comprehensive investigative procedures on college campuses remains to be seen. Until then, schools may be left scrambling to adequately protect their students from sexual assault and protect themselves from further lawsuits.

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Related Resources:

• Univ. of Tulsa Faces Title IX Lawsuit Over Athlete Rape Allegations (FindLaw's Tarnished Twenty)
• 55 Colleges Facing Title IX Sexual Violence Investigations (FindLaw Blotter)
• Title IX and Sex Discrimination in Amateur Athletics (FindLaw)
• Title IX Remedies and Criticisms (FindLaw)