[September 1, 2015] All across the country, incoming college freshmen are getting ready to attend jam-packed orientation sessions where they will be expected to absorb voluminous amounts of information, including critical information related to sexual assault on campus. But even assuming students attend these orientation sessions, what are the chances of this information actually sticking, when there is so much to learn in such a new and exciting environment? And likely an even smaller percentage of students will crack open the student handbook, unless they need to; and in the event of a sexual assault, that is often too late. Thus, developing a more comprehensive prevention approach is essential to curbing the longstanding problem of sexual assault on college campuses.
Independent High School Students Need To Know About Sexual Assault
Effective prevention hinges on educating students about sexual assault well before they reach college. In particular, even though the vast majority of independent schools are not covered by the federal law known as Title IX, schools nonetheless can help students understand how that law relates to sexual assault, from all perspectives, including the respondent’s, the complainant’s, and the bystander’s perspectives.
Indeed, as the recent tragedy in Concord, NH, has shown, educating students about such issues before they enter college is crucial. Whether one stands accused of sexual assault or was the victim of an assault, both students from St. Paul’s School now face dire and long-lasting consequences. For all students, these consequences can extend during the college years and beyond. And for students who have experienced sexual assault, living with the effects of the event can be traumatic.
Thus, students need to be prepared, to the maximum extent possible, for the serious issues they will face in college (or sooner) relating to sexual assault.
Department of Education Guidance On Title IX
Title IX sets forth many requirements relating to sexual assault, and many best practices for educating students have been developed as a result. Thus, it is both helpful, and ultimately crucial, that students be aware of those requirements before they enter college.
Title IX and its implementing regulations (34 C.F.R. Part 106) prohibit discrimination on the basis of sex in educational programs or activities operated by recipients of federal financial assistance from the U.S. Department of Education (“Department”). Therefore, those colleges receiving Federal funds – which include virtually all post-secondary institutions – must comply with the requirements of Title IX.
The Department’s Office for Civil Rights (“OCR”) is charged with enforcing Title IX’s implementing regulations. Since the regulations were first promulgated, they have been significantly expanded to make clear that Title IX prohibits sexual harassment, including sexual assault.
Guidance issued by the Department sets out the basic framework governing what constitutes sexual harassment and when and how a school is legally obligated to respond. On the topic of sexual assault, sexual violence is considered a form of sexual harassment prohibited by Title IX, and specifically includes “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.”
Pursuant to Department guidance, it is recommended that “all schools implement preventive education programs,” and suggested that “[s]chools may want to include these education programs in their . . . orientation programs for new students.”
Increasingly, the Department’s resolution agreements with recipients of federal financial aid have required that schools implement sexual assault prevention programs, specifically during college orientation. For instance, in one recent agreement, the Department required that students receive specific training on the meaning of sexual harassment, sexual assault and sexual violence, what to do when school members learn of such conduct, and the components of the school’s grievance procedures.
In addition to these activities on OCR’s part, the “Not Alone Report” issued by the White House Task Force to Protect Students From Sexual Assault places emphasis on the importance of educating students about sexual violence and bystander intervention programs. And the White House initiative “It’s On Us” encourages individuals to take a pledge that includes a commitment to understanding what nonconsensual sex is and being an active bystander.
Educating Students Earlier Points To Success
Recent studies indicate that for sexual assault prevention efforts to be most effective, more education at a younger age is needed. For example, a recent editorial in the New York Times, “To Prevent Sexual Assault Start Early” (July 14, 2015), opined that earlier education efforts could prevent assaults down the road. It cited a PBS News Hour piece about efforts in the Netherlands to educate students early on about sexuality, including helping students develop skills to protect against sexual coercion, intimidation and abuse by, in part, showing that healthy communication is key. The editorial also cited a social-emotional learning (SEL) program in Illinois middle schools centered on teaching students about empathy, communicating, and emotion management, which has resulted in reduced aggression and victimization, including sexual harassment.
Keeping Up With The Times: “Yes Means Yes”
Because the issues relating to sexual assault prevention are so complex, particularly for high school students and still-maturing young adults of college age, it is vital for students to begin sooner than later to learn about some of these key issues related to sexual assault, including current (and evolving) definitions of “consent.”
How each college defines “consent” generally will be an important factor in determining whether sexual conduct was “unwelcome” at that college, for purposes of Title IX. More and more, colleges are adopting an “affirmative” consent standard to determine if conduct of a sexual nature was unwelcome. For example, as Sandy Keenan explores in a recent New York Times article, “Affirmative Consent: Are Students Really Asking?” (July 28, 2015), new legislation in New York now obligates colleges and universities in the state to adopt policies requiring students’ “affirmative” consent to sexual activity, as highlighted by the following provisions of the legislation:
Affirmative consent is a knowing, voluntary and mutual decision among all participants to engage in sexual activity.
Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
Silence or lack of resistance, in and of itself, does not demonstrate consent.
The problem, as Keenan points out, is that most students are not yet aware of this significant change in the meaning of consent. Thus, the importance of students learning that sex must be mutually and affirmatively consensual, and communicating with one another accordingly, cannot be overstated.
Recommendations: Begin To Teach Students Before They Get To College
You would not give your teenager a set of car keys before she/he completed driver’s ed, right? Likewise, we should not send them off to college, where they are likely to become more sexually active than they were during high school, without first giving them some practical education about the potentially life-altering consequences of being involved in a potential sexual assault.
Thus, the essential points for students to understand about sexual assault before they enter college include:
•How to minimize the risks of being an alleged perpetrator of sexual assault;
•How to avoid becoming a victim or potential victim of sexual assault;
•How students should conduct themselves as bystanders to potential sexual assault;
•A practical, real world understanding of key concepts such as sexual harassment, sexual assault, consent, date rape, stalking and domestic violence; and
•Available resources and procedures for preventing and responding to sexual assault.
We strongly urge schools to begin communicating with students on these issues sooner rather than later.
* * *
Schwartz Hannum PC has developed a program designed to help independent schools prepare their students for issues they will face in college relating to sexual assault. We are happy to discuss this program and tailor it to meet your needs.