New Campus Sexual Misconduct Rules Will Tackle Dating Violence

The New York Times | Erica L. Green | February 10, 2020

WASHINGTON — Education Secretary Betsy DeVos’s pending rules on sexual misconduct at the nation’s schools and colleges will include provisions to shore up protections for victims of stalking and dating violence, a response to lethal attacks that have underscored the weakness of current policies.

The rules will for the first time cement domestic violence, dating violence and stalking as forms of gender discrimination that schools must address under Title IX, the federal civil rights law that prohibits sex discrimination in education programs that receive government funding.

In the past, the Education Department has issued guidance on how schools should handle sexual misconduct on campus and interpreted Title IX to require universities to combat sexual assault in particular. The department’s new rules would go further, adding definitions for domestic violence, dating violence and stalking as misconduct that universities must tackle or risk federal investigations and a loss of funding.

Victims’ rights advocates and lawyers say that while many schools have presumed such infractions fall under the broad umbrella of sexual harassment, not all have trained their staffs to address them, let alone treat them as civil rights violations.

“There’s still a lingering idea that dating violence is an interpersonal issue that two folks need to work on, something that just happens between men and women, rather than seeing it as a form of violence that has an impact on education,” said Sage Carson, the manager of the victims’ rights advocacy group Know Your IX.

When the Title IX rules are released in the coming weeks, the domestic violence provisions are expected to toughen standards for schools from Obama-era guidance letters, according to people familiar with the department’s most recent drafts. A guidance document issued in 2011 mentioned dating violence only in footnotes.

“Dating violence often gets lost in the harassment issues, and there are issues in domestic relationships that are just as toxic and dangerous,” said Matt McCluskey, whose 21-year-old daughter, Lauren McCluskey, a University of Utah track star, was hunted down on campus, kidnapped and killed by a former boyfriend in 2018. Ms. McCluskey would have celebrated her 23rd birthday on Wednesday.

A spokeswoman for the department declined to comment because the rules were not final.

Lauren McCluskey’s death is one of several cases officials considered when they settled on the new changes. Her parents, in a lawsuit against the University of Utah, said the school violated the civil rights law by not investigating more than 20 reports of their daughter’s abuse, which were brought to the attention of at least six staff members.

Instead of taking action, the lawsuit said, school officials assumed she would want “privacy,” and ​“only considered threatening Lauren with guest policy violation​s” for allowing her boyfriend, who was not a student, to live in her dorm room. ​He was later found to be a felon and sex offender on parole who had lied about his identity.

The university never investigated reports that Ms. McCluskey had been tracked around campus, that she had bruises on her body or that her friends feared for her life, the lawsuit said.

Her parents were on a cellphone call with her when they heard her last four words — “No, no, no, no” — as she was dragged into the back of a car and shot seven times. They contend in the lawsuit that their daughter’s complaints were not taken seriously based on the “assumption that Lauren, like most women, was unreasonable, hysterical, hypersensitive, paranoid, overreacting to the situation and not being truthful.”

The new provision in the Education Department’s new rules would be a small victory for victims’ rights advocates, who have largely condemned Ms. DeVos’s other proposals, which bolster the rights of the accused and generally make sexual misconduct allegations more difficult to pursue on campus. For example, the other proposals require complaints to go through a more rigorous reporting process and courtroom-​​like proceedings. ​

Ms. Carson said that she considered the dating violence provision a positive development, but, coupled with Ms. DeVos’s other proposals, it could be a “double-edged sword” for victims. “Some of the procedures could be extremely dangerous for them,” Ms. Carson said.

The department is aligning its regulations with definitions already established in the 1990 Clery Act, which requires colleges to regularly report security issues and criminal acts, and protections outlined in the 1994 Violence Against Women’s Act.

But the department will also bring the weight of civil rights enforcement to every school in the country, where episodes of dating violence, domestic violence and stalking — collectively known as “intimate partner violence” — have increased in recent years.

In 2017, the year in which the most recent Clery data is available, colleges reported 16,977 instances of offenses that fall under the Violence Against Women Act, compared with 12,232 in 2014. The number of episodes of dating violence, stalking and domestic violence increased each year in all three categories.

The Centers for Disease Control and Prevention said that nearly 1 in 11 female and about 1 in 15 male high school students reported experiencing physical dating violence, and 1 in 9 female and 1 in 36 male high school students reported experiencing sexual dating violence.

Among the more than 120,000 public comments that the department received as it considered sexual misconduct rules, advocates pointed to​ recent cases of dating violence ​to illustrate potential policy g​aps. Those include Yeardley Love, 22, who was killed by an abusive former boyfriend in her University of Virginia dorm room in May 2010, just weeks before graduation, and Shana Fisher, the first victim of a mass shooting at Santa Fe High School in Texas in May 2018, who had rebuffed the gunman’s aggressive advances for months.

In March 2018, Jaelynn Willey, 16, was shot in the hallway of Great Mills High School in Maryland by a former boyfriend who had harassed and abused her in school after they broke up.

Advocates and lawyers argued successfully that dating violence, domestic violence and stalking should be considered separate from a relatively narrow definition of sexual harassment proposed by Ms. DeVos. Under that definition, schools are required to respond only to behavior that is “so severe, pervasive, and objectively offensive” that it “denies a person access to the school’s education program or activity.”

“If we’re essentially saying to a stalking and dating violence victims, ‘Sorry, this isn’t pervasive enough, severe enough or objectively offensive enough,’ they’re not going to come back,” said Cari Simon, a prominent Title IX lawyer and former director of the Congressional Victims’ Rights Caucus. Her comments strongly urged the department to adopt the definitions.

Ms. Simon, who generally opposed the regulations, called the addition of the definitions “transformative” for victims of these forms of violence. “They now have rights,” she said.

S. Daniel Carter, the president of the consulting group Safety Advisors for Educational Campuses, who helped write the Clery Act, said he favored the department’s retention of a broad definition of sexual harassment over the adoption of Clery standards. But he said he was pleasantly surprised that dating violence and stalking were getting more clarity.

“There is not a person who worked on Clery who thought it would be possible to go to the secretary of education or assistant secretary for civil rights and say, ‘Please write a regulation that writes in these specific, expressed safeguards,’” Mr. Carter said.

The biggest effect of new dating violence rules could be on elementary and secondary schools, which are known for mishandling investigations of sexual harassment, assault and other misconduct.

A 2017 study by Ball State University of school responses to teenage dating violence found that more than half of the 750 high school principals surveyed said they had encountered a victim of dating violence. But 68 percent said they received no training on teenage dating violence, and 76 percent said their school had no protocols for a response.

Jagdish Khubchandani, a professor of health science at Ball State and the lead author of the study, said he was cautiously optimistic about the federal standards. “There are laws and procedures and policies everywhere; the problem is there’s no implementation,” Mr. Khubchandani said. “It’s a problem, because schools have the opportunity to stop dating violence early.”

In a complaint filed last month against the St. Mary’s County Public School System in Maryland, the parents of Jaelynn Willey said the staff of Great Mills High School violated several state laws and district protocols before the school shooting that left their daughter dead.

Among the missteps, they claim, was the failure of the school to heed warnings that the gunman, Austin Rollins, posed a danger to Jaelynn.

The boy would follow Ms. Willey around school and to her car, the complaint said. He had sent harassing texts and social media messages, yelled at her, pushed her and grabbed her wrists, causing “excruciating pain,” the lawsuit said, all in front of school personnel. Her parents expressed concern to the girl’s swim coach, who did not act or bring the complaint to school leaders as the district’s protocol required, according to the suit, which also accuses the school of failing to meet its Title IX obligations.

“But for Jaelynn being a female, she would not have been shot,” said the family’s lawyer, Lauren Geisser.

In a statement, the school district said it saw “no evidence whatsoever that any employee of the St. Mary’s County Public Schools had any reason to foresee the tragic shooting.”

In their lawsuit, the McCluskeys asserted that the University of Utah violated Title IX. One of Lauren McCluskey’s last pleas for help was to a campus detective who went on vacation without acting on her concern. When that detective returned days later, Ms. McCluskey was dead.

A report commissioned by the university identified dozens of ways it could have responded better. Last month, the school announced a new staff member devoted to handling allegations of intimate partner violence and sexual assault.

In a statement, the university said it was “committed to improving, and reducing the likelihood of such a tragedy happening again on campus.”

But in its most recent court filing, the Utah state attorney general’s office, which is representing the school in the suit, argued for the dismissal of the McCluskeys’ Title IX claims, primarily because the former boyfriend was not a student.

“They were always worried about their own liability, and that’s what pushed us to the lawsuit,” said Jill McCluskey, the mother of Lauren McCluskey. “They dropped the ball so many times. If you don’t admit you were wrong, then you can’t really change things.”