U.S. Department of Education Releases List of 55 Higher Education Institutions Under Title IX Investigation

On May 01, 2014, for the first time, the U.S. Department of Education released a list of 55 colleges and universities currently under investigation for allegedly mishandling complaints of sexual assault and sexual harassment in violation of Title IX.

Title IX is a federal law that prohibits discrimination on the basis of sex in any education program or activity that accepts federal funding. Discrimination on the basis of sex includes sexual harassment and sexual assault and schools that receive federal funds have an obligation under Title IX to publicize sexual harassment and discrimination policies and grievance procedures. Pursuant to Title IX, schools are also required to take extensive steps to prevent, investigate and resolve complaints of sexual misconduct.

The Department’s unprecedented decision to release the names of colleges and universities that are currently under investigation for possibly violating Title IX over their handling of sexual assault investigations comes just two days after the White House pledged greater transparency on the issue of sexual assault in higher education and released updated guidelines describing the responsibilities of colleges, universities and schools receiving federal funds under Title IX. “We are making this list available in an effort to bring more transparency to our enforcement work and to foster better public awareness of civil rights. We hope this increased transparency will spur community dialogue about this important issue.” Assistant Secretary for Civil Rights Catherine E. Lhamon said in a statement.

There are two ways the U.S. Department of Education’s Office for Civil Rights (“OCR”), the agency charged with enforcing Title IX, launches a Title IX investigation. First, OCR will commence an investigation into an institution if it receives a formal complaint alleging that the institution did not promptly or properly investigate a claim of sexual assault. OCR also launches investigations into complaints it discovers as part of its routine efforts to assess whether schools are in compliance with Title IX. Previously, the Department only released the names of institutions being investigated for potential Title IX violations if a request was made about a certain institution. Today marks the first time the public is able to ascertain which higher education institutions are under such investigation nationwide without first submitting a request to the Department. Although the Department of Education release only includes the date an investigation began and the name of the school, the Department vows to update the list on a regular basis.

However, a school’s appearance on the list does not automatically indicate that the school is not in compliance with Title IX, only that an investigation is ongoing. “I also want to make it clear that a college or university’s appearance on this list and being the subject of a Title IX investigation in no way indicates at this stage that the college or university is violating or has violated the law” said Assistant Secretary Lhamon. “No one probably loves to have their name on that list,” Education Secretary Arne Duncan said during a White House media briefing. “But we’ll investigate; we’ll go where the facts are. And where they have done everything perfectly, we’ll be very loud and clear that they’ve done everything perfectly.”

The Department’s list comprises a wide-range of large and small institutions, and both private and public institutions. Typically, if OCR determines a school is operating in violation of Title IX, the agency will try and work with the institution to execute a resolution agreement. However, in extreme cases, the Department can cut off federal funding from institutions found to be in noncompliance with Title IX. These institutions can also be referred to the U.S. Department of Justice for further action.

In light of the recent White House attention and the unprecedented number of complaints recently filed with the Department of Education, we urge colleges and universities to review and, if necessary, revise their sexual assault and harassment policies. Not only do colleges and universities need to know how to recognize and prevent claims of sexual assault, they must also know what to do if a claim occurs and what investigative steps to take if claims are made. Prompt, comprehensive and impartial investigations of sexual violence will help to ensure your institution satisfies the U.S. Department of Education's expectations under Title IX.

Please note that this is a general overview of developments in the law and does not constitute legal advice. Nothing herein creates an attorney-client relationship between the sender and recipient.