In April 2011, the Department of Education's Office of Civil Rights sent the 19-page "Dear Colleague" letter, as it is now known, to elementary, secondary, undergraduate, and graduate schools across the country. The letter said that if a school doesn't have systems in place to deal with sexual violence, then they're violating Title IX -- a gender discrimination law passed by Congress in the 1970s.
In the past, the highest-profile Title IX cases dealt with funding inequality in men's and women's sports programs, but the "Dear Colleague" letter reminded schools that sexual harassment also counts as discrimination under Title IX. The directive came about because many schools weren't conducting sexual assault investigations when they should. The latest universities to make headlines for ignoring rape reports include Occidental, Swathmore, and Amherst, following in the footsteps of the University of North Carolina, Princeton and Yale, among others.
The letter sent schools scrambling to tighten their sexual harassment procedures or risk losing federal funding. Though the letter included clear orders that colleges should change the way they prosecute sexual harassment crimes, develop brochures explaining procedures, and choose one employee to be the permanent "Title IX coordinator," other parts of the letter were less clear. Who on campus must report issues of sexual harassment to the Title IX coordinator so that the school can address it? The president of the school? The adjunct professors or assistant teachers? The student RAs? Janitors?
An unclear answer can be found in 50 pages of "guidance" on sexual harassment the Office of Civil Rights released in 2001, which states that a responsible employee is "any employee who has the authority to take action to redress the harassment ... or an individual who a student could reasonably believe has this authority or responsibility."
Confused? So are all the schools. The Victim Rights Law Center has advised hundreds of colleges following the "Dear Colleague" letter. Colby Bruno, Managing Attorney at the Center, says that schools are constantly inquiring who has to report to the Title IX coordinator. "It is the single most question we get asked," Bruno sighed.
W. Scott Lewis, partner at the National Center for Higher Education Risk Management, a firm specializing in gender discrimination law, explained that the Office of Civil Rights wanted deans, directors, assistant directors, VPs, and provosts to be the "responsible employees" who must report sexual harassment. These are the people who can do suspensions or no-contact orders, move people from residence halls, or find other solutions to a sexual harassment problem.
But the 2001 guidance memo doesn't cite these roles specifically. Because the letter was written to apply to every school in the nation -- primary, secondary, private, and public -- it had to define "responsible employee" vaguely. As a result, the Office of Civil Rights has essentially left the choice up to the school as to who must report sexual harassment to the Title IX coordinator. "Because Title IX applies to thousands of ... schools around the country," Rachel Gettler, a staff attorney at the Office of Civil Rights explained by email, "we are unable to keep track of policy changes made by every individual school."