Why Independent Schools Need to Act on
Student-on-Student Sexual Assault
FEBRUARY 2015
Gallagher
Education
The issue of student-on-student sexual assault has swept through colleges like a tidal wave, and its impact is starting to be
felt by independent schools. At least 90 colleges are currently under federal investigation for potential violations of Title
IX, the law that regulates sexual assault at institutions receiving federal funds. National media such as the New York Times,
Washington Post and 60 Minutes have devoted considerable attention to cases on individual campuses. In addition, pending
federal legislation would allow a fine of up to one percent of an institution’s total budget for Title IX violations.
Impact on Independent Schools
Even though most independent schools are not subject to
Title IX, the law will likely establish a standard of care for
all educational institutions. Recent high school graduates are
now receiving training on Title IX as part of their college
freshman orientation. As a result, independent schools are
receiving reports of sexual assault from alumni that occurred
while they were enrolled at the school, and sometimes those
reports involve a current student. As college students become
more aware of Title IX, their knowledge is being transferred
to parents and younger siblings. Many legal experts believe
that if an independent school is sued for improperly handling
allegations of sexual assault by a student, attorneys for the
student will argue that the same procedures should have been
followed as under Title IX. It will be difficult for independent
schools to argue that their students deserve less protection
than students at colleges and public schools.
standard used in criminal cases. The Office for Civil Rights
at the U.S. Department of Education (OCR) says that Title IX
requires schools to address the effects of off-campus sexual
misconduct that interfere with a student’s education. Parents
of independent school students are likely to expect the
same, just as if Jane alleged that off-campus cyberbullying
interfered with her education.
Boarding schools are more likely to face issues of studenton-student sexual assault because students live on campus,
thereby placing the school in loco parentis. However, day
schools are also facing the issue. Many suits against public
and independent day schools have alleged that assaults
occurred on school grounds in restrooms or locker rooms. An
independent school has been sued for conduct that occurred
in a hotel room on an overnight field trip. Furthermore, both
boarding and day schools may have to remedy the effects of
conduct that occurred off-campus. Consider the following
hypothetical situation:
Jane alleges that she was assaulted by Jim, a fellow student,
at an off-campus party unconnected to the school. Jane filed
charges with the police. The district attorney declined to
prosecute Jim because she did not believe there was sufficient
evidence to prove Jane’s allegations beyond a reasonable
doubt. Jane’s parents then asked the school to investigate and
make its own determination whether an assault occurred.
They contended Jane had become afraid of Jim, and his
presence at the school negatively affected her education.
Analysis: Under Title IX, the school would have a duty to
investigate and interview witnesses. The school would then
need to determine whether Jane was assaulted using the
preponderance of the evidence standard, meaning that it
was more likely than not that the assault occurred. This is
a much lower standard than the beyond a reasonable doubt
Gallagher Education :: Why Independent Schools Need to Act on Student-on-Student Sexual Assault
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Steps for Independent Schools to Take
1. Determine if Title IX Applies
As an initial step, all independent schools should determine
if they are subject to Title IX by carefully auditing whether
they receive federal funds. Title IX applies if an institution
receives as little as one dollar in federal money. Some
independent schools receive federal funds for school lunch
subsides, building construction or participation in the E-Rate
program, which provides telecommunications and internet
access at low costs.
2. Develop a Policy
Even if a school is not subject to Title IX, it should develop
a policy that covers sexual assault. Schools should resist the
temptation to simply borrow a policy from another school.
The policy should reflect the school’s population and values.
Schools may need expert assistance in developing a policy
that meets their needs. The following are key components of
any policy:
•Scope – The policy should apply to conduct that
occurs on school grounds or at a school sponsored
function. In addition, it should apply to conduct
off school grounds that interferes with a student’s
education.
• Reporting options – The policy should identify
multiple individuals at the school who can receive
reports of sexual assault. It should require that
individuals who receive reports pass on the information
to someone at the school who coordinates responses to
sexual assaults.
•Confidentiality requests – Some students will ask that
their report be kept confidential. Schools should first
check whether a mandatory reporting law in their
state requires that the school report information about
sexual assault of a minor to a child protection agency
or the judicial system. The website of the Rape Abuse
and Incest National Network contains information on
each state’s reporting laws and was updated in 2013. If
no mandatory reporting is required, the school needs
to state in its policy whether certain individuals will
honor the confidentiality request (such as licensed
counselors or clergy). Most schools would do well to
adopt the Title IX standard, which requires the school
to weigh the confidentiality request against the school’s
duty to provide a safe environment for all students.
•Non-retaliation – The school should prohibit
retaliation against anyone who makes an allegation
in good faith, even if the school later determines
that there is not sufficient evidence to support the
allegation. In addition, witnesses who support a
student alleging assault should be protected from
retaliation.
•Interim measures – A school should state that it may
take interim measures while an investigation is pending
to protect the accuser. These may include a no-contact
order between students or adjustments of their
schedules.
•Adopt the “preponderance of the evidence” standard –
In 2011, OCR issued new guidance stating that Title
IX requires schools to use the preponderance of the
evidence standard in determining whether a sexual
assault occurred. At the time, many colleges were
using the more demanding standard that the evidence
must be “clear and convincing.” Over time, schools
and colleges are abandoning the clear and convincing
standard, and the preponderance of the evidence
standard is becoming the national norm.
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•Violation of other rules – Some students are afraid to report a sexual assault because they fear punishment for
violations of other rules such as underage consumption of alcohol. To encourage assault victims to report, many
colleges have revised their policies to give the institution discretion to forgive other rule violations in cases of sexual
assault.
•Cooperation with the investigation – Although Title IX does not require it, some schools are mandating that
students accused of assault cooperate with a school investigation or face possible suspension. These provisions are
often necessary when an accused student faces potential criminal charges. In those situations, attorneys for the
accused student often advise their client not to say anything to the school that could be used against them in court.
Thus, the school needs a way to get the accused student off campus until the criminal proceeding is resolved. Schools
should explain to parents the reasoning for this policy and involve parents in any decisions on cooperation with the
school investigation.
Traditionally, colleges used hearing panels to decide cases of sexual assault, even though Title IX does not require them.
However, that model has proved troublesome because the panel members require repeated training, and many panels are not
well equipped to deal with such a complex issue. There is a movement at some colleges to eliminate hearing panels and use
retired judges to decide sexual assault cases. Many independent schools give one person (such as the head of school) sole
discretion to decide these matters, although it is usually wise for that person to consult with legal counsel on the decision.
Regardless of which decision-making procedure a school adopts, it needs to clearly describe the procedure in its policy.
3. Be Prepared to Conduct Investigations
Good sexual assault investigators are difficult to find, and most independent schools will need to outsource the function.
Investigators need to be knowledgeable about the dynamics of sexual assault. They need experience interviewing witnesses
and making credibility determinations. Larger universities are hiring full-time Title IX investigators because of the specialized
expertise required. Independent schools needing an investigator can turn to local colleges or sometimes police officers trained
to conduct sexual assault investigations. Insurance carriers are inconsistent in how they respond to allegations and claims
Gallagher Education :: Why Independent Schools Need to Act on Student-on-Student Sexual Assault
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involving student-on-student sexual assault. Careful review
of policy terms and conditions is a must. Ask your broker
to help clarify terms and conditions as it relates to both
allegations and claims involving sexual assault allegations.
4. Provide Training for Students
Some states, such as California, mandate student training
on sexual assault, so schools should first check state
requirements. Student training on the issue needs to be ageappropriate and should cover the following topics:
•Where to report sexual assault
•Confidential reporting options (if any)
•Definitions of consent
•How bystanders can intervene if they see a situation
developing that may lead to an assault
•The common role of alcohol or drugs in student sexual
assaults
•Protection from retaliation
•Use of alcohol or drugs does not make a sexual assault
victim at fault
5. Provide Training for Employees
Students are likely to report sexual assault to any adult they
trust, not just individuals designated in the policy. Thus,
teachers, coaches and even custodial staff may be the first
to hear of an assault. Employees need to be trained on the
following issues:
•Appropriate responses to a report – Employees only
need to obtain basic information such as the date of
the assault, where it occurred and the student involved.
Employees should not attempt to determine the
truthfulness of the report or “investigate” the incident.
Instead, they should comfort the student and explain
how they will pass on the information to appropriate
school officials.
•Handling confidentiality requests – Under Title IX,
clergy and counselors who receive reports may promise
confidentiality. Other employees are obligated to
tell the student before any information is disclosed
that they cannot promise confidentiality and have
a duty to pass on that information. OCR’s Title IX
guidance requires them to advise the student that
they should go to clergy or counselors if they want
information about the assault to remain confidential.
This aspect of the OCR guidance is controversial,
and independent schools should think hard before
adopting it. Regardless of what the school decides,
employees should know the school rules on handling
confidentiality requests.
•Impact of trauma on victims – Many victims of
sexual assault suffer from trauma or post-traumatic
stress disorder that jumble their recollections. As a
result, they may have difficulty coherently explaining
what occurred, particularly if the trauma was recent.
Individuals who receive reports need to be patient
and not interrupt. They need to give the victim time
to collect his or her thoughts and not be judgmental
about a story that may sound inconsistent at first.
In addition, victims of trauma often report in an
unemotional tone. Finally, it is common for victims of
sexual assault to freeze while the assault occurs. Lack
of resistance should not be taken as a sign of consent.
Employees need to be aware of these effects of trauma
so they can comfort the student and avoid improper
judgments about the report.
6. Move Promptly to Resolution
OCR expects cases to be resolved within 60 days absent
unusual circumstances such as a parallel police investigation
or school holidays that slow down the investigation. While
independent schools not subject to Title IX do not have to
meet this time frame, they should still strive to move promptly
and fairly.
Conclusion
The issue of student-on-student sexual assault is one of the
top issues facing higher education. Colleges are scrambling
to comply with Title IX by hiring additional staff, revising
policies and procedures and providing training for employees
and students. Over time, the Title IX requirements are likely
to filter down to independent schools and establish a new
standard of care. Thus, independent schools would be wise
to take a proactive approach by revisiting their policies and
providing training.
Gallagher Education :: Why Independent Schools Need to Act on Student-on-Student Sexual Assault
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Gallagher
Education
Two Pierce Place
Itasca, IL 60143-3141
About the Author
D. Frank Vinik is an attorney and risk management consultant with more than 20 years of experience in higher education.
He has served in a university administration and represented colleges at a large law firm. In addition, he held positions
as Director of Legal Resources at the National Association of College and University Attorneys and Director of Risk
Management at United Educators Insurance. Frank received his undergraduate degree summa cum laude from the
University of California, Berkeley and his law degree from the University of Virginia.
About Gallagher Education
Gallagher’s Education team provides tailored insurance and risk management consulting services related to the Property &
Casualty, Student Health and Accident and Employee Benefit needs of educational institutions.
For more information, contact:
John McLaughlin
Managing Director
630.285.4380
[email protected]
www.ajg.com/highereducation
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