The Ed Dept is leaning on mediation to clear backlog of sexual violence cases, sources say

Editor’s note: The names of sexual assault survivors and students alleged of misconduct have been changed in this story to protect their identities due to the sensitive and confidential nature of mediation.

Jennifer was enrolled at a large private college in 2014 when she began an intimate relationship with another student. Soon after they got together, the situation became troubled. He spent months stalking and harassing Jennifer, and threatened to make explicit photos of her public.

While she reported the situation to her university, she felt administrators were mishandling her case. The office that addresses complaints under Title IX, the federal sex discrimination law, didn’t help her in a timely fashion, nor did it provide her typical protections granted to victims, such as making sure she didn’t have to attend the same classes as her abuser. 

Jennifer decided the university hadn’t done enough. In 2015, she formally filed a complaint detailing the failings she perceived with the university’s processes to the U.S. Department of Education’s Office for Civil Rights (OCR). OCR is the division of the agency that evaluates whether institutions of higher education are compliant with Title IX.

OCR acknowledged Jennifer’s report. 

And then she didn’t hear anything from officials there for more than four years.

About three months ago, she received a call from an OCR representative, asking if she was interested in moving her complaint against the university into mediation. The process would work like this: Jennifer, along with her lawyer, would sit down with university administrators and negotiate remedies, such as a tuition refund, for the period of time she was in distress. 

If she agreed to mediation, OCR would close her case, in lieu of potentially launching an investigation into the university, which can be intensive and last years. 

The offer, however, jarred Jennifer, who told Education Dive she had moved away from the area where she attended college and hadn’t thought about the harassment in years. It was “jolting,” she said, to have to dredge up her notes on the experience and relive it.

Jennifer’s case is not the only one the Education Department is attempting to resolve through this process. Recently, OCR has turned to mediation in an apparent effort to clear a backlog of hundreds of discrimination complaints it has fielded over the years, some of which, like Jennifer’s, have remained dormant.

Through interviews with sexual assault survivors, their advocates and lawyers that specialize in sexual violence cases nationwide, Education Dive has learned the department is emphasizing mediation as a way to quickly resolve Title IX complaints from victims of sexual violence as well as those accused of it. 

The impetus behind the department’s actions, which Education Dive confirmed through multiple sources close to the matter, is unclear. But the flurry of activity coincides with the imminent release of the agency’s final rules dictating how institutions should investigate and adjudicate sexual misconduct under Title IX

Mediation is confidential. Those who enter into it sign an agreement that they will not share details of the process. But it can result in financial compensation for the person who filed the complaint or changes to an institution’s sexual violence policies. 

With the legal and regulatory landscape around Title IX deeply in flux, college and university administrators may be loathe to initiate negotiations. 

One survivor told Education Dive that she had received word her institution was unwilling to change its sexual misconduct rules given the imminent release of the final Title IX regulations.

Those who complain to OCR can be left without resolution for 18 months to two years. Often these cases are “stale” by the time OCR finally addresses them, said Kevin Kruger, president of NASPA — Student Affairs Administrators in Higher Education, because institutions have altered their policies in the intervening years.

For campuses, “the timing couldn’t be worse as they prepare for the Title IX regs,” Kruger said. “If the mediation requires a lot of significant lift from the institution, it will put a burden on many.”

In a statement emailed to Education Dive, the department rejected the idea that it is pushing to settle complaints through mediation, noting that only 11% of cases resolved through this method in the 2019 fiscal year were related to sexual harassment.

That year, 71 Title IX cases were settled through mediation. OCR had 302 open postsecondary sexual harassment cases, which also encompass sexual violence, as of Monday. 

“To suggest there is a concerted push to close cases in this way ignores how aggressively OCR has been investigating Title IX cases,” the statement reads in part.

Scaling back enforcement

Victim advocates have derided the department’s draft rules as a breakdown of essential protections for sexual assault survivors. They replace Title IX guidance the Obama administration proffered in 2011, which was largely credited with catapulting the issue of campus sexual assault into the national spotlight. 

Critics claimed the Obama-era policies deprived accused students of constitutional due process rights. Institutions, they argued, were under the threat of having their federal funding yanked for not following the Obama rules and were incentivized to punish potential sexual violence, even in cases with little or weak evidence. 

Throughout Obama’s time in office, OCR took on hundreds of new Title IX investigations, leading to criticism from Republicans at the time that the office was overstepping its bounds. Only 55 colleges and universities were included on a public list of institutions facing investigations that the Obama administration released in May 2014. By the time he left the White House, OCR had launched 304 investigations.

“The fact is that OCR opened far more cases than they could ever resolve properly,” said S. Daniel Carter, president of Safety Advisors for Educational Campuses, which consults with universities on campus crime and Title IX. “It has been an issue for the last four years. … I don’t believe that was fair to the people who filed Title IX complaints.”

By using the less-intensive mediation process, the department is likely trying to close many of those cases ahead of the new Title IX regulations, said Adele Kimmel, senior attorney at nonprofit law group Public Justice, in an interview. It also fits with the pattern of the Education Department generally scaling back OCR enforcement, she said. 

In an internal department memo circulated in 2017, then-acting head of OCR Candice Jackson directed officials to stop trying to identify systemic issues at colleges and universities when they were looking into Title IX reports, unless students or others identified them in their complaint. The deeper inquiries took more time but were a key element of the Obama administration’s investigative measures.

“If the mediation requires a lot of significant lift from the institution, it will put a burden on many.”

Kevin Kruger

President, NASPA — Student Affairs Administrators in Higher Education

Though U.S. Education Secretary Betsy DeVos has long maintained OCR was overburdened, she has slashed staff there. News reports document the department offering buyouts and generally cutting down on the number of OCR employees.

Investigations, meanwhile, can run for years and require significant time and effort from OCR. 

As one of the most in-depth investigations OCR has ever conducted, the nearly two-year probe of the University of Southern California (USC) illustrates the lengths to which the office sometimes must go when investigating. 

USC failed to address multiple reports of sexual abuse by an on-campus gynecologist, OCR found. To make that case, OCR interviewed nearly 100 witnesses, reviewed thousands of pages of documents and conducted multiple campus visits.

The investigation resulted in a written agreement between USC and the federal government that the university would fix its Title IX procedures. It also includes a provision that an institution must submit to federal monitoring for a period of time — in USC’s case, three years.

In the case of mediation, the department does not track the resulting deal between a college and an individual who files a complaint with OCR. It merely acts as an impartial facilitator between the two parties, according to a 2018 manual on how OCR cases are processed.

Having to monitor fewer agreements stemming from formal investigations would lessen OCR’s workload, Kimmel said. 

The mediation process

Yet the mediation process can leave survivors dissatisfied if they feel justice has not been served in their cases. 

The handful of survivors Education Dive spoke with said that although the mediation process is voluntary, they felt Education Department officials were pressuring them into it — presenting it as the best, and in some ways only, option to settle their cases.

Robin filed a complaint with OCR in 2016 after she was sexually assaulted while studying abroad. To her knowledge, her college did not open a formal investigation after she reported the incident.

She didn’t hear anything from OCR for years. That was, until early this year, when an official reached out to tell her the case was a candidate for mediation.

Shaken after not getting updates for years, Robin needed to mull over the offer and so she did not respond to OCR immediately, she said in an interview. 

Robin ultimately made contact, but found OCR difficult to work with. On multiple occasions, Robin said the official encouraged her to take advantage of mediation, telling her she would have more freedom with the process. 

The official’s behavior, she said, “seemed very pushy.”

The department declined to answer Education Dive’s question of whether people who filed complaints were being pressured into accepting mediation, as well as whether the pending Title IX regulations played a role in its use of the process. The Office of Management and Budget has meetings scheduled to review the rules through March 19, which is the last step before they are finalized. 

“The fact is that OCR opened far more cases than they could ever resolve properly.”

S. Daniel Carter

President, Safety Advisors for Educational Campuses

Andrea, who graduated college last year, said she felt some of the same pressures from OCR when dealing with her complaint — which detailed concerns about how her university handled her report of sexual advances and assault by a professor —​ though ultimately her interactions with the office have been positive.

She was unhappy with the university’s response when she reported the professor, particularly since he was still employed there after the institution’s investigation concluded. OCR was “responsive” when she filed her complaint and offered her the chance to go mediation, she said.

But, like the others, Andrea thought the way OCR framed mediation was biased, presenting it as a way for her to ask for more than she would through an investigation.

“It was almost like, ‘Look at this bright, flashy option,'” Andrea said. 

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