Issuing its “Dear Colleague letter” in 2011 to all educational institutions that receive federal funding, the United States Department of Education admonished colleges and universities to vigorously respond to alleged sexual assault and other sexual misconduct on college campuses. The letter provided strict guidelines about how to process and handle sexual misconduct complaints, so that accusers and accused, alike, receive full and fair investigations, disciplinary procedures and ultimately discipline or punishment, if warranted. The Department of Education made it clear that universities and colleges are required to comply with those guidelines, or risk losing the federal funding that is so highly coveted by institutions who receive it.

Adherence to these guidelines has proven challenging for many universities, particularly those who may be motivated by other economic interests beyond receipt of federal funding to look past their legal obligations, as explained in the Dear Colleague letter.  For example, in a recently filed lawsuit against Baylor University in the United States District Court for the Western District of Texas in Waco, ten plaintiffs allege that 31 Baylor football players committed 52 acts of rape during a time period when Baylor was enjoying tremendous success on the football field, allegedly causing Baylor to do little or nothing to help victims, directly violating their rights under Title IX of the Education Amendments of 1972.

Best known for ensuring gender equality in sports programing on campuses, Title IX also prohibits the denial of benefits or discrimination in educational activities and programming, based upon sex. Under Title IX, universities receiving federal funding have a responsibility to promptly take action to eliminate sexual misconduct, prevent it from happening again, and to protect the victims from a hostile environment that can negatively affect a victim’s educational experience.  Universities are required to have policies in place that are clear and known to students, about how to report a complaint and about how such complaints are supposed to be processed. Usually, a person identified as a Title IX Coordinator is involved in receiving and investigating complaints involving sexual misconduct, and supervising any disciplinary procedures in accordance with Title IX’s requirements. But the plaintiffs in the Baylor lawsuit allege that they were strongly discouraged by Baylor from filing reports about their assaults under its Title IX process and instead, were encouraged to let Baylor’s athletic department deal with the problem, in order to protect Baylor’s on the field success, and the trappings and economic benefits Baylor has enjoyed as a result of having a football program of national prominence.

Baylor filed motions to dismiss the plaintiffs’ complaints. In denying those motions to dismiss on March 7, 2017, Baylor essentially was informed by the presiding United States District Judge that it can and will be required to answer, and be accountable for, the complaints against it.  The Judge noted that the “school’s failure to enforce its rules when the boys target the girls on a widespread level, day after day, may support an inference that the school’s decision not to respond is itself based on gender” and thereby be actionable under Title IX.” He also wrote “the Court finds that each Plaintiff in the instant case has plausibly alleged that Baylor was deliberately indifferent to her report(s) of sexual assault, thereby depriving her of educational opportunities to which she was entitled.”  Noting that the Plaintiffs alleged they were repeatedly misinformed of their rights under Title IX, while being discouraged from reporting their assaults, the Judge observed “[a]dditionally despite being informed of multiple sexual assaults between 2008 and 2011, the university reported to the U.S. Department of Education that no such assaults took place on its campus during that period.”  The Judge concluded that such facts, if construed as true, could allow a jury to infer that Baylor’s policy or custom of inadequately handling and even discouraging reports of peer sexual assault created a heightened risk of sexual assault, thereby inflicting the injury of which the Plaintiffs complain, and seek monetary damages.  The Plaintiffs are now permitted to pursue their claims for damages, arising from Baylor’s alleged disregard and/or violation of their rights under Title IX.

The “Dear Colleague letter” reveals an urgent need to address allegations of sexual misconduct on campus, and to do so promptly, fully and fairly. The Baylor case teaches us that there is still a lot of work that needs to be done however, to ensure that legitimate complaints of misconduct are not summarily dismissed, disregarded, or ignored, deliberately or otherwise, by the institutions who are charged with responsibility for presiding over the prompt, full and fair investigation and resolution of a complaint that is required.  And the Baylor case also teaches us that whether students are accusers or accused they have a right and need to be fully and fairly heard, and disciplined (if appropriate) when reports of misconduct are made to the colleges and universities who they depend on, to ensure that such fairness prevails.