Responding to the Challenges of the Dear Colleague Letter
BY BRETT A. SOKOLOW AND SAUNDRA K. SCHUSTER
The Office of Civil Rights (OCR) Dear Colleague Letter (DCL) sent to colleges and universities on April 4, 2011, is aimed at improving the ways colleges and universities address complaints of sexual violence, yet the letter’s language may be creating more problems than it sought to resolve. Some campus officials have seized on language in the
DCL to imply a duty to fully investigate and remedy all complaints regardless of the wishes of a victim, which would be an overreaction to OCR’s clarification of its expectations for Title IX compliance.
Advocates for victims believe compulsory investigations
would disempower victims and chill their reporting of sexual
assault incidents. The issue is the correct interpretation of
what OCR means by “investigation.” The reasonable interpretation is that notice of sexual violence, whether actual or
constructive, must be investigated, but, the investigation is a
“small I investigation, meaning that it is preliminary. Initial
remedies or accommodations may be appropriate as the
preliminary investigation is engaged, and the investigation
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reveals what is a needed and/or is an appropriate remedy in
Where the identity of the accused student or other details
are known, preliminary inquiry into the potential for violence, pattern of offenses, and whether the alleged victim and/
or others are at risk will be conducted. This inquiry might
involve a review of conduct records and other complaints or
a verification of some or all of the alleged victim’s assertions.
The preliminary investigation will then allow the college or
university to determine whether it can reasonably end the
inquiry into the allegation of a sexual assault with the preliminary investigation, or whether it will need to continue with
a more involved investigation. The victim’s consent to release
information will be critical and should be respected. The
“big “I” comprehensive investigation may or may not be
necessary. If not, initial accommodations and remedies will
satisfy Title IX.
If deeper investigation is needed, it should be undertaken.
However, a victim’s confidentiality should be respected if she
or he does not consent to release personally identifiable information. Where the “big I” investigation indicates a need to
pursue a formal resolution, colleges and universities must do
so to prevent future injury and to forestall liability in negligence for foreseeable harm. Still, lack of consent to disclose
the victim’s personally identifiable information or lack of
involvement by the alleged victim in the process may limit the
range of remedies the college or university can pursue.
If the college or university takes the rare step of breaching
the victim’s privacy to pursue formal resolution, it may do so
legally under the Family Educational Rights and Privacy Act
health and safety exception for a significant, articulated threat.
While taking that step can result in secondary trauma to the
victim, it is intended to stem patterns that indicate a real
risk of harm to the next victim or victims. The institution is
caught in dynamic tension between honoring the wishes of the
last victim and protecting the safety of the next. Many institutions act to protect their community.
There is danger in this path, too, because without a victim’s
participation, evidence may be too limited to make the finding