As has been the case in other industries and sectors, higher education is experiencing an increase in sexual misconduct allegations. While a school can’t prevent every instance of harassment or abuse, there are steps to take to protect those involved, including having a comprehensive plan in place to address allegations when they do arise. In fact, the University of Texas was recently pushed to publish revised sexual misconduct policies after students protested the fact that professors punished for sexual misconduct were still teaching undergraduates. Texas State University also recently fired a tenured professor for inappropriate actions against his fellow faculty members.
While the terminology of assault, abuse, and misconduct is often used interchangeably, in order to implement the necessary safeguards against sexual misbehavior, it is important to review the distinctions and nuances in order to better identify how to handle and address each. Sexual assault is a physical invasion of the body that may result in physical injury and psychological trauma. Sexual assault includes rape, as well as other invasive physical acts. Sexual abuse primarily refers to acts against children, who are legally deemed unable to provide consent. Sexual harassment covers a broad range of behavior – both verbal and physical – including, but not limited to, inappropriate jokes or touching, a promise to provide something of value in exchange for sexual favors, or intimidating or offensive comments based on stereotypes.
Why Is Sexual Misconduct a Widespread Problem in Higher Education?
Educational institutions can be particularly vulnerable to claims of sexual misconduct for a variety of reasons, including:
- The hierarchical structure often keeps offenders in positions of power over those with less power, such as tenured professors over students, untenured faculty, staff, etc.;
- Large student bodies who often live in close quarters;
- Educational institutions’ longtime failure to deal with and/or mishandling of these issues fosters belief that misconduct is tolerated by the schools; and
- Historically limited resources or systems in place for victims.
In an educational setting, sexual assault, sexual harassment, and sexual misconduct can happen in many forms. A student might be assaulted or harassed by a fellow student, teacher, professor, advisor, coach, staff, or faculty member. Additionally, a large university system employs hundreds or thousands of employees beyond professors or teaching instructors, ranging from cleaning and cooking staff to teaching assistants to health service providers and more.
When any person experiences sexual assault, harassment, or misconduct, the negative effects are wide-ranging. The school itself will often pay a huge financial and/or reputational price, particularly if they fail to respond quickly and properly to the complaint. Furthermore, when a school receives federal funding, it is subject to Title IX of the Education Amendments of 1972, a federal anti-discrimination law. Both sexual harassment and sexual violence are forms of sex discrimination covered under Title IX. Once a school knows of, or reasonably should have known about sexual harassment or sexual assault on campus, Title IX requires the school to promptly investigate the complaint.
What Schools Should Consider When Handling Claims
According to a recent article in The New York Times, universities – regardless of size or stature – have historically processed sexual misconduct claims similarly. The majority of recent sexual misconduct settlements with institutions of higher learning focused on the schools’ mishandling of claims. The Wall Street Journal found in 2016 and 2017 alone, 22 public universities and systems paid more than $10.5 million across 59 settlements involving sexual harassment claims made by students, faculty, and staff. These settlements highlight the importance of ongoing preventative training and the establishment of formalized protocols to both prevent instances from occurring as well as properly address claims if and when they arise.
While there are many aspects to be considered in preventing and managing sexual misconduct in schools, there are four main categories to consider:
- Student Education: While awareness of the issue has grown, students need to be educated on an ongoing basis about sexual violence prevention, including what constitutes misconduct and how to report it.
- Employee Training: All paid university employees, including faculty, staff, and others should be required to complete training annually.
- Transparency: Transparency in the process led by a neutral third party goes a long way toward establishing credibility for the ultimate findings. However, transparency must balance full disclosure against protecting the privacy of those involved.
- Policies: Universities must not only establish a sexual misconduct prevention policy, they must also consistently review and update it to remain in compliance with all applicable state and federal laws.
The legal team of MehaffyWeber regularly conducts training seminars for school administrators, staff, and employees on important and timely issues, such as sexual assault and harassment prevention. Previous training may not stand the test of ever-changing regulations; training seminars should therefore occur on at least an annual basis and be conducted by someone with an understanding of all the legal implications involved with a sexual misconduct claim.
Preventative Training For Educational Institutions
The attorneys of MehaffyWeber work with companies across Texas to devise and deliver preventative training courses on sexual misconduct. Our defense team, led by Shareholder Barbara Barron, has worked with schools, religious institutions, industrial workplaces, community organizations, and more. In addition, should an outside investigation become necessary or should civil litigation arise, our firm will bring its 74 years of experience to partner with you to efficiently resolve the situation in the best possible manner. If your company wants to take a proactive approach to preventing sexual harassment and sexual assault, reach out to us to discuss your options and how we can help.