Attending a college or university should be an exciting time in a student’s life as they pursue their academic goals. Unfortunately, for some, sexual harassment or discrimination ends up sullying that experience. Such incidents have been on the rise in recent years, but tolerance for this abhorrent behavior is on the wane, as evidenced by the #MeToo movement and a growing willingness by complainants to speak up and seek justice.
Because of Title IX—the federal civil rights law that prohibits sex-based discrimination in any school or other education program that receives funding from the federal government, which was first enacted as part of the Education Amendments Act of 1972—colleges and universities are compelled to respond to such claims by students and staff.
According to Hon. R. Malcolm Graham (Ret.), JAMS mediator, arbitrator and referee/special master, “Colleges and universities recognize that there are both moral and economic imperatives to try to prevent harassment and discrimination. The most forward-thinking institutions are moving aggressively to provide messaging that will notify all members of the academic community that harassment and discrimination violate the university’s code of conduct, that they will not be tolerated and that the university will take immediate and decisive action to investigate, adjudicate and punish persons engaged in such behavior.”
Once a claim of a violation of Title IX has been made, the school is required to follow formal procedures that ensure fair and equal treatment of all parties involved. If either the claimant or respondent believe the process will be unfair, the specter of hiring an attorney and a subsequent lawsuit looms. For all parties involved, going to court is a time-consuming and costly way to settle a dispute. In the case of a college or university, beyond the expense, there is the potential for damage to the school’s reputation and the subsequent harm to student recruitment. Anything that stands in the way of a potential student viewing the institution as a place where they can grow as an individual and learn in a friendly, safe environment, while being respected by peers, professors and administrators, can be highly determinantal to the school.
Educational Institutions Should Take a Proactive Approach to Disputes
When it comes to sexual harassment, sexual assault, discrimination and bias claims, schools often take a reactive approach when a more proactive approach is warranted. Neutrals are often used as mediators for informal resolution processes, and as hearing officers and appellate officers for formal resolution of Title IX matters.
Outside of Title IX, colleges and universities can benefit from independent investigation and neutral fact-finding services that focus on systemic issues within an institution. Organizations, such as JAMS, can be highly effective in helping to establish policies and procedures that promote a culture of diversity, inclusion and respect. When a respected third-party leads the investigation process, schools are able to strengthen their reputation for credibility and accountability. In addition to creating a truly fair process, schools benefit by being able to uncover festering issues before they can tarnish their reputation and to eliminate the high cost of addressing issues through litigation.
Numerous changes have been made to Title IX over the years. “Since its introduction in 1972, presidential administrations have made changes to Title IX,” explained Justice Graham, who brings more than 30 years of judicial experience to his role as a neutral, including a decade as associate justice of the Massachusetts Appeals Court. “These amendments to the procedures under Title IX have been aimed at making sure there is balance and fairness for all parties involved. More recently, changes have been proposed that relate to whether or not certain people can perform sports activities and on how gender is defined. With these changes, it behooves schools to proactively work with a neutral who can bring clarity to how the changes impact the procedures in place, thus ensuring the institution is in compliance.”
Mediation Offers Faster, More Personalized Results
Mediating disputes is an effective way to avoid the drawn-out court litigation process. As a voluntary process, the procedures involved in mediation are typically less complicated, and there are far greater options when it comes to personalizing the results, so the aggrieved party comes away feeling that they received justice.
“Mediation is a fully voluntary process that both parties must consent to,” stated Justice Graham. “The mediator’s role is one of complete neutrality. Neutrals can work with the parties to come up with almost any kind of resolution, not necessarily just money damages. In most cases, the complainant feels they’ve been mistreated or disrespected. In mediation, we can apply remedies that are more personalized, things that could never happen in the court. Mediation is an art form. The mediator is tasked with making sure all the parties are heard and their feelings are acknowledged and understood.”
The resolution can take any number of forms. It might require the accused individual to refrain from doing something, the two parties not to be in same classroom, the accused individual to take a leave of absence or the accused individual to issue a formal apology. Ideally, the resolution will leave the complainant and the accused feeling the process was fair and impartial and that they can move on.
Early Mediation Is Becoming More Popular
The use of mediation early in the dispute process is becoming the preferred method of reaching an equitable resolution. Waiting too long to bring in a mediator risks having positions and feelings harden, making it less likely the parties will find common ground. Once lawyers are hired and expenses are incurred, it becomes more difficult to de-escalate matters.
“College administrators are increasingly seeing the value of mediation early on in the process,” concluded Justice Graham. “Mediation offers a quicker path to resolution, which lets the parties move on. This is particularly important when the complainant is a student. Young people need to get on with their lives, and mediation can be less traumatic than ending up in a courtroom. I’m optimistic that we will see more intervention with mediators going forward because it just makes good sense for all involved.”
Justice Graham has worked as a neutral to help colleges and universities resolve issues that include complaints of abuse and discrimination of athletes by coaches; disputes between university administrators with professors and staff; assessed the racial climate on a college campus; determined an appeal of a formal grievance by a university professor alleging that his Dean abridged his right of academic freedom in the classroom; and claims of academic bullying by university Deans and senior professors.
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