Preventing Sexual Misconduct on Campus: Guidelines for Educators

The public outcry continues regarding the allegations that Pennsylvania State University failed to report and take action to prevent the repeated sexual abuse of minors by a former football coach.  This is not a new issue in academia; for years schools have struggled with the questions of how they should respond to allegations of sexual abuse.  Even before the Penn State allegations became national news, the Office For Civil Rights of the United States Department of Education had placed a spotlight on concerns regarding sexual harassment, including sexual abuse, of students in its April 4, 2011 "Dear Colleague" letter.  Although the Penn State allegations, if confirmed, suggest institutional and individual failures to act, this matter is an important reminder that educational institutions must take effective and demonstrable action to prevent and respond to incidents and complaints of sexual abuse.  The question that educational institutions need to ask now is not "How could that happen?" but "What should we do to ensure that something like this never happens at our school?"  

We offer some reminders of what every school should do below.

            1.         Clearly State and Amply Publicize Your Policy and Complaint Procedure.  Every educational institution must have a policy that prohibits sexual harassment and sexual abuse.  That policy must be repeatedly communicated to employees, students, parents and the public.  Here, once is clearly not enough.  The policy must include a clear procedure for making complaints of sexual harassment or abuse and prohibit any retaliation against persons who make a complaint or participate in an investigation. 

            2.         Make the Policy Part of the Fabric of the Institution.  Talk about the policy often.  Make it a part of orientation.  Provide periodic reminders. 

            3.         Teach.  Teach your students about what is prohibited.  This includes a discussion of the meaning of "consent," when consent is not possible, the common connection between alcohol and complaints of sexual abuse, how to make a complaint, and the consequences of violating the policy.

            4.         Empower.  Empower students (and parents) to report violations.  Make clear that no violation of your policy is permitted and that identifying and stopping violations are essential to achieving your school's mission.  Remind staff of their fundamental responsibility to report suspected violations.  Although groundless bad-faith allegations should not be permitted, employees should be encouraged to report good-faith suspicions.  Eyewitness or irrefutable proof is not needed. 

            5.         Train.  Train staff to identify sexual harassment and abuse, and the persons to whom such acts must be reported.  Provide special training to persons designated to receive or investigate complaints.

            6.         Advise of the Right to File Criminal Charges.  Always advise complainants of their right to file criminal charges.

            7.         Thoroughly Investigate and Take Appropriate Action When Needed.  When a complaint is made, the school must act.  If criminal charges are filed, the school still has an obligation to investigate and take any needed corrective action, though the process may be delayed for the short period of time the police needs to conduct its investigation.  The investigation must be fair and thorough.  The criminal standard of guilt – beyond a reasonable doubt – does not apply.  Rather, the standard is "the preponderance of evidence," or "more likely than not."  If your policy has been violated, you must take action to protect the complainant and stop the behavior.

            8.         Do Not Guarantee Confidentiality.  Do not promise a complainant confidentiality, and do not believe that your obligation to investigate and act can be determined by the desires of the complainant.  In some cases, you may be required to disclose the identity of the complainant.  You must investigate complaints to the best of the school's ability, and it must take appropriate action to address violations. 

            9.         Report.  Many states mandate reports of sexual abuse of minors.  In Minnesota, educators are required to report sexual abuse of a child by a person responsible for a child's care, who has a significant relationship with the child or who holds a position of authority over the child.  In Indiana, an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.  Be sure to be familiar with the laws of each state in which you have students.

            Many states, including Minnesota and Indiana, grant immunity to persons making a voluntary or mandated report of sexual abuse.  Remember, you are making a report so that the authorities can conduct an investigation to determine what has occurred.  Reports are serious matters, but if you have a good-faith basis to believe a reportable offense has occurred, do not be frozen into inaction because you have some level of uncertainty.  State your concern accurately: "I am not sure what is going on, but I am concerned because _________________." 

            10.       Title IX Coordinator.  For those schools subject to Title IX, a Title IX coordinator must be designated.  Special attention must be given to the design of the Title IX coordinator position and to the training of the person designated to hold this position.  The OCR emphasizes the role of a Title IX coordinator in overseeing the school's efforts to establish an environment free of sexual harassment and abuse, and a process for fairly investigating and taking appropriate action in response to complaints.  The Title IX coordinator plays a key role in ensuring that your school fulfills its responsibilities in responding to an incident or complaint of sexual abuse. 

            Schools should promptly review their policies and practices both to ensure that these steps will be taken and to ensure that your policies and practice demonstrate the commitment to the principle that sexual harassment and abuse have no place at your school.

For additional information, we highly recommend careful review of six Title IX advisories prepared by United Educators¹ for complying with the OCR's April 4, 2011 "Dear Colleague Letter."  The advisories provide guidance in critical areas and can be accessed by clicking the links below:

• Overview of the mandates of the 2011 "Dear Colleague Letter;
  
  
• The responsibilities of the Title IX coordinator;
  
  
• Revising nondiscrimination policies and grievance procedures;
  
  
• Responding to complaints;
  
  
• The conduct of hearings; and
  
  
• Training and prevention.

1. We thank United Educators for permitting us to provide access to these advisories.  United Educators is a licensed insurance company owned and operated by more than 1,160 member colleges, universities, independent schools, public school districts and related organizations throughout the United States.  UE is committed to providing innovative programs that help schools manage risk.