As readers well know, the Department of Justice is currently investigating the University of Montana on charges that it failed to respond appropriately and prevent numerous incidents sexual assault in recent years, including the possibility that the University covered up or downplayed claims by women that they were raped or otherwise assaulted by members of the football team. Not surprisingly, the University is trying to change the campus climate of assault, as well as its reputation for indifference. Inside Higher Ed reported today on one such effort: new plans by the University to require students to participate in an online training in sexual assault awareness and prevention, as a condition for course registration in the spring. The training, which is 20 minute tutorial, which includes videos and a comprehension quiz, was developed by a committee that included faculty.
This first-of-its-kind intervention reportedly has some concerned about the fairness of requiring all students to participate in training to curtail a problem caused by only a few. Of course, the university has no way to identify in advance who might be involved in a sexual assault, either as a victim, a perpetrator, an accomplice, or a bystander with the ability to protect someone else. Based on the high risk of sexual assault in college generally, and the rash of assaults at Montana in particular, it seems reasonable to address the climate of assault with an intervention aimed at the community at large.
The reporter asked me about the relationship between this new requirement aimed at preventing sexual assault, and the Title IX investigation that is currently underway. Certainly the steps Montana takes today have no bearing on the question of whether school officials violated the law in the past by ignoring or suppressing reports of campus rape. But to the extent that the Department of Justice would require Montana to make changes aimed at preventing future assaults, the steps it has already taken to this end will likely count in its favor. More significantly, however, from a legal standpoint, is that the University is vulnerable to liability for future assaults if it does not take steps now to address the problem about which it is aware. To avoid being “deliberately indifferent” — one of the elements to Title IX liability for sexual harassment and assault — it must take steps reasonably calculated to protect students from assault. Even though this online tutorial is a new idea and as-yet-untested, it would surely seem to qualify under the ‘reasonably calculated’ standard. For one thing, trainings are already an accepted method of harassment prevention in the workplace context. For another, it was developed by professors with expertise in this area, who presumably consulted scientific research on the efficacy of online trainings to change community norms in other contexts. Most importantly, it seems a vast improvement on the usual “sign here to acknowledge that you’ve read this policy” approach many institutions use as a way of bringing students’ rights and responsibilities to their attention. Certainly the training alone will not absolve Montana from liability in future cases where the university could have done more to protect a student from a particular risk of assault. But this intervention seems to be persuasive evidence that the university is not indifferent to the general risk to students that comes from a campus climate that seems to tolerate assault.