Written by Cassandra Stephenson
Jane Doe is a student who said she feels like she fell through the cracks in the system. An older student who was supposed to be acting as her mentor sexually assaulted her at a Pepperdine orientation event for a graduate campus program. She was part of a group of incoming students mingling with second-year mentors at a bar when he pulled her aside. She told him she had to leave.
“He pulled me into a room and then he started sexually harassing me,” Doe recounted. “Like, his kissing my neck and touching me and it was just, very, very uncomfortable. And so I started to panic.”
Doe requested that her identity be protected, because she still fears retaliation.
If a university student reports a sexual assault by another student to the university, the university launches an investigation. They conduct interviews and pore over the details of the case. But if they decide there’s enough evidence to conclude that the assailant is in violation of the school’s sexual misconduct policy, what happens next isn’t cut-and-dry.
Title IX of the Education Amendments of 1972 “protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance,” according to the U.S. Department of Education. But though Title IX requires universities to investigate complaints of sexual harassment and provide all parties involved with appropriate resources, it does not specify what a university should do upon finding a harasser in violation of sexual misconduct policy.
Doe was able to get away from her assailant at the bar, but he left with her and a few other people when she headed back to their hotel. He was intoxicated. She hadn’t had a drink. At one point, he pushed her into a dark alley.
“I was praying, because I was like, panicking, like, is this guy going to rape me in the alley? He was much stronger than me,” Doe said.
Back at the hotel, he physically prevented her from pressing the button for her own floor in the elevator. When she finally succeeded, he got off the elevator with her and followed her, despite her repeated refusals, to her room, on a floor of the hotel Pepperdine designated for only female attendees of the orientation. The ordeal ended when she happened to run into a group of Pepperdine students in the hall, and he left.
She told them everything that happened, and they comforted her and walked her to her room to make sure she was safe. But, Doe said, the trauma she had just experienced kept her awake the whole night.
“I was just so traumatized by what had just happened with him groping, and just touching me uncomfortably, kissing me on my neck and wherever — it was just very, very disturbing, and I had never … that had never happened to me [before],” Doe said.
When she officially started her master’s program weeks later, Pepperdine informed her that someone reported the incident and the university was investigating what happened. She met with Tabatha Jones Jolivet, the Title IX coordinator at the time, and was informed of her reporting and support options. Even though the assault happened off campus, it occurred at a Pepperdine-run program, and thus was covered by Title IX.
Pepperdine found that her assailant violated the school’s sexual misconduct policy and asked her what she wanted to happen. He was set to graduate at the end of that semester, so she said she didn’t want him to lose his degree or be deported — he was an international student— so the ramifications for permanent dismissal or filing a criminal charge against him would be significant. Doe said she feared retaliation.
“Let him graduate in December, and I’m never going to see him again,” she said she told administrators. “I don’t want to see him. Like at any events, I don’t want to see him on campus.”
During the investigation, she ran and hid in the bathroom any time she saw him. “Every time I’d see him, the thing that happened to me would replay in my mind,” she said.
Complying with Title IX
Private and public universities are covered by Title IX because “nearly all of them participate in federal student loan programs” and other federally funded research and grants, Western New England University School of Law Professor Erin Buzuvis wrote in an email to the Graphic. Buzuvis teaches courses on Title IX law at the university and is the co-founder of the Title IX blog, which provides Title IX news, cases and resources.
Institutions are legally required to “take reasonable, timely, appropriate corrective action, including steps tailored to the specific situation” if the school ultimately “determines that sexual harassment has occurred,” according to Title IX.
Sexual harassment is “unwelcome conduct of a sexual nature,” according to Pepperdine’s sexual misconduct policy. Sexual assault refers to actions including rape, sexual coercion, and sexual battery, or the nonconsensual touching of “intimate parts.”
The Department of Education’s Office for Civil Rights is responsible for enforcing Title IX and has the ability to cut off a university’s federal funding if they are found in violation. But this has never happened, Buzuvis wrote, and what exactly the regulations require is not entirely clear.
The Department of Education has issued several supplementary documents over the years to offer additional guidance to schools regarding Title IX compliance and how disciplinary measures should be handled.
Education Secretary Betsy Devos rescinded two pieces of Obama-era Title IX guidance, a 2011 Dear Colleague Letter and a 2014 Question and Answer, in 2017. In its place is interim guidance, which stipulates that any disciplinary action must be “proportionate” to the violation and balance enforcement of the school’s code of conduct with “the impact of separating a student from her or his education.”
The Department of Education now encourages schools to review their Revised Sexual Harassment Guidance, published in 2001, for guidance in applying disciplinary action.
“As long as the school, upon notice of the harassment, responds by taking prompt and effective action to end the harassment and prevent its recurrence, the school has carried out its responsibility under the Title IX regulations,” the guide states.
Counseling, disciplinary action, escalating consequences, separation of the harasser from the harassed, and eliminating hostile environments for the harassed are listed as possible options in the guide.
The school’s response should aim to minimize the burden on the harassed student, according to the guide. Schools are also encouraged to take steps to prevent retaliation and further harassment.
Deciding Disciplinary Action
Doe’s assaulter was placed on probation with Pepperdine, with an immediate suspension imminent if he retaliated in any way, as stated by a grievance document Doe filed with the university. Pepperdine banned him from certain events and restricted him from the cafeteria and library at certain times so she wouldn’t have to see him. Doe went to counseling to address the effects of the trauma.
Associate Dean of Student Affairs for Community Standards Sharon Beard is tasked with coordinating adjudication for violations of Pepperdine’s sexual misconduct policy for all Pepperdine campuses. Beard reviews reports collected in the investigation and decides if there is enough information to charge the accused.
At Pepperdine, this charge leads to a hearing with the Student Disciplinary Committee, a group made up of faculty and staff, that will ultimately determine what sanctions to apply to the student in violation and how long they should last. Sanctions can include a warning, university probation, loss of privileges, restitution, dismissal from university housing, and required educational programs or assignments. Suspension, expulsion (which would require the student to re-apply to return), and permanent dismissal from the university are also options.
University administrators cannot comment on the investigation or outcomes of specific cases due to The Family Educational Rights and Privacy Act, which protects the privacy of student records, but administrators were able to explain the general disciplinary process for sexual misconduct at Pepperdine.
“We look at precedent of other cases of a similar charge,” Beard said. The committee also reviews if it is necessary to remove the accused from the Pepperdine community, taking into consideration the impact on the survivor and whether or not the survivor will still be at Pepperdine when their suspended assailant returns, Beard explained.
Once the committee decides what sanction or sanctions to apply, Beard approves them and they go into effect. Both the accused and the survivor receive documentation of the sanctions.
Beard also works closely with Pepperdine Title IX Coordinator La Shonda Coleman and the Department of Public Safety before and after the disciplinary process.
Making sure that a student does not have any contact with their harasser, like what was done in Doe’s case, is called a “no contact directive.” Directives like this aren’t sanctions, Coleman said. No contact directives are an interim measure that can go into effect before and after a decision is reached, with or without a formal investigation, because it doesn’t suggest that any one party is responsible.
“It’s a way to prevent anything from escalating and to address the immediate concerns,” Coleman said. Both parties are informed of the no contact directive being put in place, and both should be notified if it is removed. Whether or not to apply this interim measure is decided on a case-by-case basis, Coleman said.
Restricting where a student can go and what classes they can enroll in — the result of Doe’s case — can only be done as a result of a hearing. “We can’t alter someone’s class schedule if there is not a process that supports that this person should not be in this classroom,” Coleman explained.
These types of restrictions are assigned on a case-by-case basis, based on the outcome of the hearing, Coleman said.
Director of the Department of Public Safety Dawn Emrich wrote in an email to the Graphic that DPS assists reporting parties as appropriate, such as by coordinating meetings with deputies from local law enforcement if a survivor chooses to file a criminal report. Criminal reports do not interfere with university investigations and can be filed concurrently.
Following “Industry Standards”
Navigating disciplinary action can be complicated, and some schools have been accused of failing to serve students — both survivors and the accused — in the process.
Yale University came under fire in January this year for issuing “a lighter sentence than expulsion” for 10 instances of nonconsensual sex, according to Business Insider. In the same month, Yale settled a lawsuit with a former student that accused the university of expelling him after a false accusation of sexual assault, according to the Associated Press.
Baylor University was embroiled in scandal in 2015 after a sexual assault case revealed that the administration failed to take disciplinary action when the alleged victim first reported the assault to the school, according to the Texas Tribune.
“We certainly have recognized that this is not a field that really develops its own clear industry standards or that can rely on legislative action to do so, except in rare pockets,” Brett Sokolow, executive director of the Association of Title IX Administrators, said. “… But absent any of those kind of internal to the field or legislative efforts, it’s left to organizations like ours to try to either figure out what those standards are or help the field to elaborate them.”
Some colleges turn to organizations like Sokolow’s for guidance, resources and training on Title IX issues like sanctioning sexual harassment violators. ATIXA has more than 3,500 educational institution members.
ATIXA published a guide to sanctioning sexual harassment offenses in 2018. “While straightforward in theory, different incidents constituting different violations of the same policy often arise out of markedly different circumstances,” the guide reads. It states that factors can mitigate or aggravate the severity of the situation, and schools should tailor disciplinary action to each instance.
For non-consensual sexual contact, the guide recommends sanctions including conduct probation, university probation and suspension. Aggressive, invasive or extensive contact, an “ongoing hostile environment,” and continuation of unwanted contact despite refusals can lead to steeper sanctions.
Sokolow said ATIXA uses two main sources to decide the appropriate sanctioning range for sexual misconduct violations. First, they keep track of “where the field winds up when it sanctions offenses of that severity.” The second source is cases where OCR or other entities disapprove of remedial actions taken by universities as either too severe or not severe enough.
But even this guide is not set in stone, Sokolow said, and is meant more as a suggestion, as are all the “industry standards” clarified by ATIXA. “I think any institution can depart from the standards when they’ve got a decent rationale for doing so,” Sokolow said.
End of Sanctions
In November, a month before Doe’s assailant was supposed to graduate, a Pepperdine administrator contacted Doe to inform her that he had applied to another program at the school — the same program she had planned to apply to — and was being considered for admission. The administrator ensured Doe that they wouldn’t have classes together and they would be kept separate.
“I was actually looking forward to him graduating in December, so I wouldn’t have to deal with him again,” Doe said. “So I could have peace of mind and actually enjoy my Pepperdine experience.”
Doe told the administrator that she wasn’t comfortable with that, even if they weren’t enrolled in the same courses.
“I said, ‘No, it doesn’t matter. I just, I’m not comfortable having my sexual harasser continue on to my Pepperdine experience,’” Doe recounted.
She left the office and didn’t hear anything more about her assailant or the progress of his application. December passed, and he graduated as planned. Then, in January, Doe walked into the library and saw an unwanted familiar face.
“I panicked,” Doe said. Her assailant was back on campus and had been admitted into the program. Doe said she was never notified that he had been enrolled.
“I reached out for help to DPS, but did not receive any help or protection, he was free of sanctions while I suffered anxiety as a victim continuing into my program,” Doe wrote in her formal grievance document.
In February, Doe reached out to Pepperdine Professor Andrea Scott, one of her mentors and confidantes, in an email reviewed by the Graphic. In the email, Doe describes having to avoid her assailant in the library and being told by administrators that going to the police would not remediate her problem with her assailant being on campus, and that Pepperdine had already taken appropriate action in the case.
“I wasn’t able to study,” Doe said. “I could not concentrate, it affected my education, my studies, my peace, just being on campus and then not feeling supported by the administration.”
In her email to Scott, Doe wrote, “me going to counseling is not the only solution the school has to do something.”
Doe didn’t want to push the issue because she had an application pending to the same Pepperdine program her assailant was then enrolled in, and she felt the administrators she had spoken with had a say in the final decision.
“I was afraid of doing anything funny because I felt that … if I tried to do something, there would be retaliation,” Doe said.
In March, Doe attended a Pepperdine event and found out from an administrator that her assailant was also there.
“I was expecting her to make him leave,” Doe said. “But she did not.”
His restrictions and sanctions appeared to be gone.
Seeking Remedial Action
Students that believe the disciplinary actions applied in their case were in some way unreasonable have a few courses of action they can take to seek remediation.
Pepperdine students can file an internal appeal with the university through Dean of Students Mark Davis within seven days of the initial written decision. Davis and an optional ad hoc appeal committee have 20 business days to decide if the sanctions should be affirmed, reversed, modified or sent back to the Student Disciplinary Committee for reconsideration. Davis’ decision is final.
Students at any university can file a complaint with the Office for Civil Rights, which may choose to investigate whether the sanctions in the case were reasonable.
Sokolow said that despite the “mixed signals” that OCR is currently sending, the office appears to be moving away from Obama-era strictness in enforcement.
“At the same time, they continue to find colleges in violation of the law, and to even expand the basis for their findings beyond things we’ve seen before,” Sokolow added.
Alternately, students can seek recourse through private lawsuits in court. A student may seek damages from their school, Buzuvis wrote. But in these cases, courts do not look to see if the school’s efforts were “prompt and equitable,” but rather examines if the school was “deliberately indifferent,” according to Buzuvis. This would mean that the school had no response or a response that was clearly unreasonable.
But if the school took any action at all, “it gets more difficult for plaintiffs to convince a court than an institution was clearly unreasonable,” Buzuvis wrote. “Say the investigation discovered that a student had sexually assaulted another student, and the university responded by issuing a warning, or making the student write a paper, or something less drastic than suspending or expelling. A court could say, well even though that wasn’t the best response, it wasn’t clearly unreasonable,” Buzuvis wrote.
Sokolow also said that courts are “unlikely to second-guess a school’s sanction determination,” though there is a chance if “that determination is really outside of any argument for reasonable decision.”
In California, Sokolow said students are much more likely to attack the process rather than the outcome when suing the school because these cases tend to be more successful.
As far as Doe’s case goes, she has long since graduated from Pepperdine. The university transitioned to a centralized process — ensuring that Beard handles all complaints from all campuses — in the fall of 2016, though there’s no evidence to connect this consolidation to Doe’s experience. Prior to fall 2016, Beard said she consulted with graduate campuses if they had a sexual misconduct case.
Scott said she is still in touch with Doe and continues to provide emotional support, years after the event itself.
Doe said that if the university were to implement new policies, she still wouldn’t be satisfied with how her case turned out.
“Implementing new policies is fine but that doesn’t justify or give justice to my [case],” Doe said. “It kind of does, long-term, give justice to my case, but not to me as the individual, because I was definitely hurt and there was nothing. There was no remedy for me.”
Follow Cassandra Stephenson on Twitter: @CassieKay27