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More Colleges and Universities Adopting the "Affirmative Consent" Standard for Title IX Cases

Posted by Joseph D. Lento | Oct 12, 2016 | 0 Comments

Colleges and Universities Nationwide Aggressively Pursue Title IX Allegations

Despite the occasional exceptions that receive media attention, colleges and universities in New Jersey, Pennsylvania, and nationwide aggressively pursue allegations of campus sexual misconduct and sexual assault.  Federal funding under Title IX legislation arguably motivates many schools to aggressively pursue such cases against accused students, and in doing so, to comply with federal mandates which require that disciplinary cases involving sexual assault be handled in a specific manner; a manner which many critics contend leaves students accused of sexual assault facing an uphill battle.

One issue that often arises in cases of campus sexual misconduct and sexual assault is whether there was consent between the parties.  Because Title IX cases often turn on the question of consent, colleges and universities continue to address this issue.  Across the nation, school policies regarding what is consent and what is not have been revised, and school policies and procedures have been made more strict in an effort to combat campus sexual misconduct and to better respond to allegations when reported.

The "Affirmative Consent" Standard

Many colleges and universities have adopted the "affirmative consent" standard, which as the name implies, requires a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  California was the first state to make affirmative consent the legal standard on college campuses in 2014.  New York, Connecticut, and Illinois have followed California in requiring colleges and universities to enforce the affirmative consent standard.

Legislation is pending in New Jersey which will require the affirmative consent standard despite many schools doing so on their own initiative at least in part.  Most four-year colleges and universities in New Jersey have adopted some form of affirmative consent.  Affirmative consent was briefly proposed for Philadelphia colleges and universities in 2015 by Philadelphia Councilwoman Blondell Reynolds Brown.  The University of Pennsylvania has used the affirmative consent standard since 2012.

Title IX Reports Have Increased

Supporters of affirmative consent, including many school administrators, contend that it improves the campus sexual climate and that reports of sexual misconduct have increased.  Because supporters contend that reports of sexual misconduct and sexual assault are under-reported, supporters welcome the increase in reporting.  Supporters also contend that under-reporting complicates schools' efforts to evaluate the effectiveness of sexual assault awareness and prevention programs.  (Not everyone believes that campus sexual assault is as vastly under-reported as many contend.  Different studies that have attempted to address the issue have produced varying results.)

The College of New Jersey has seen an increase in Title IX reports which has been welcomed at the school.  TCNJ school administrators contend that the increase in reporting indicates that the school's education and outreach efforts have been effective.  For example, TCNJ recently placed door hangers outside of students' dorm rooms - The hangers read, "Is the person sober? Is the person awake? Did the person say yes?"  It is obviously important that students, often away from home for first time, often exposed to difficult social situations and social pressures for the firs time, and often exposed to alcohol and drugs for the first time, need to be informed about what is appropriate and what is not regarding sexual activity.  The question that must however be asked is, "Can colleges and universities go a step too far regarding pursuing Title IX claims?"

Can Schools Go a Step Too Far?

When colleges and universities appropriately respond to Title IX claims, the answer is that schools arguably cannot go a step too far.  When colleges and universities, in an veiled attempt to be in compliance with federal mandates due to federal funding that is at stake, pursue Title IX claims against accused students that do not warrant disciplinary action under Title IX, the answer is that schools can go a step too far.  An increase in reporting does not equate to an increase in legitimate Title IX claims.  Moreover, is injustice not done to legitimate victims of sexual misconduct and sexual assault when claims are made under Title IX that are not deserving of such an approach?  The hope is that college and universities will be able to properly determine which claims are legitimate Title IX claims and which require action under traditional Code of Conduct student disciplinary provisions, outside of the Title IX student disciplinary process. 

For example, I recently handled a Title IX case at The College of New Jersey that warranted such concern.  To TCNJ's credit, the school appropriately assessed the complainant's claim and recognized that it was not deserving of further action under TCNJ's Title IX student disciplinary process.

Regarding the unfortunate prospect of legitimate reports of sexual misconduct and sexual assault, TCNJ school administrators report that the school's new definition regarding sexual consent allows TCNJ students to better understand their rights and obligations concerning sexual activity.  Prior to 2011, The College of New Jersey did not define sexual consent.  TCNJ now defines sexual consent as consent that is "informed, freely and actively given mutually understandable words or actions which indicate a willingness to participate in mutually agreed-upon sexual activity."

TCNJ Dean of Students, Angela Lauer Chong, makes the valid point that "the first time you want your students to be educated about effective consent is not after a sexual assault has been reported."  Dean Chong adds that "the real challenge is educating your student community on what effective consent is before [a campus sexual assault occurs]."

A Shift Among Schools Towards Affirmative Consent

As noted, The College of New Jersey is not alone among New Jersey colleges and universities that either have moved or are moving towards the affirmative consent standard or some variation.  Rowan University adopted affirmative consent four years ago.  Rowan University also prides itself on educating its students, especially freshman, regarding what their rights and obligation are concerning sexual activity.  The New Jersey Institute of Technology adopted the affirmative consent standard for the 2016 fall semester.  Laura Valente, the New Jersey Institute of Technology dean of students and Title IX coordinator states that NJIT "[wants] to make sure that [NJIT has] something very clear, very public, very obvious to everyone."

The shift towards affirmative consent has been motivated in large part by pressure from the federal government and also an awareness among the general public that campus sexual assault, and how it is responded to by colleges and universities, is a major problem across the nation.  When sexual assault occurs, the victim of sexual assault is done an obvious injustice.  When sexual assault occurs, a report is made by the victim, and a college or university fails to adequately respond to and address the victim's claim, the victim is done another obvious injustice.  When, however, a student accused of sexual misconduct or sexual assault is not afforded due process, or is only afforded due process in name only, and an incorrect finding of responsibility is made, another injustice is done; an injustice that is not always obvious. 

Continued Pressure from the Federal Government

The Obama administration began highlighting the issue of campus sexual assault in 2011, informing colleges and universities that sexual misconduct and sexual assault are gender-based violence covered under Title IX, the federal law guaranteeing equal treatment. The number of colleges and universities under Title IX federal investigation by the Department of Education's Officer of Civil Rights (DOE-OCR) for alleged violations and non-compliance with federal mandates has since ballooned to 261 at last count.  Four schools in New Jersey and 11 in Pennsylvania are under federal investigation, with multiple open cases at Princeton University, Temple University, and Allegheny College, among others.

The 2011 Department of Education letter which prompted many schools to take a hardline approach to responding to reports of campus sexual assault, and continuing federal attention on the issue, helped prompt Rutgers University adopt a specific policy on sexual harassment and gender-based violence.  Jackie Moran, the Title IX coordinator for Rutgers' New Brunswick campus states, "Adopting an affirmative-consent standard was not only in line with best practices, but also gave us a really good tool for educating students what consent is and what consent is not, and how to communicate that with each other."

At Villanova University in Pennsylvania, Title IX coordinator Ryan Rost reports that Villanova University's training and education on issues of sexual climate have been "ahead of the curve for a number of years."  In that regard, Villanova students have been required to complete an online sexual responsibility training course since 2008. Villanova University combines that training with an online course on liquor consumption, AlcoholEdu, as well as bystander-training intervention (which is another approach that many other colleges and universities are undertaking to combat campus sexual assault).

Is "Affirmative Consent" Effective?

Despite the move to the affirmative consent standard among many schools, some question the standard's effectiveness; contending that affirmative consent is nonetheless ambiguous.  Critics also question the theory behind the standard itself - Is the idea of "affirmative consent" redundant?  Is not all consent affirmative in and of itself? 

Kristen N. Jozkowski, a public health professor at the University of Arkansas whose research focuses on college students and sexual consent, reports that because colleges and universities nationwide are also doing so much at once in an attempt to address campus sexual assault and how it is responded to by schools, it is difficult to identify exactly what is working.  Jozkowski adds that affirmative consent is "not an end-all, be-all, but it could be part of a progression...[Safeguarding students from campus sexual assault is not going to be accomplished] by any one thing, but rather, by a combination of several factors or initiatives that have coalesced and pushed...a cultural shift forward."

A Critical Question Remains

Reducing campus sexual misconduct and sexual assault is an absolutely necessary endeavor.  If the affirmative consent standard can potentially help in that regard, it is arguably worth exploring further.  That being said, when students, despite having a full understanding and appreciation of affirmative consent, find themselves involved in their school's Title IX disciplinary process, a critical question remains: "Will a cultural shift forward regarding a better understanding of what is consent and what is not help with the ongoing issue of whether the Title IX disciplinary process itself, shaped in large part by intense pressure from the federal government, provides a fair forum for the resolution of Title IX claims?"

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges across the United States while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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