OPINION | COVID-19 sidelines sexual misconduct procedures

Lily Mae Lazarus and Sala Thanassi

Gabe Darley | Senior Staff Artist

It is no secret that Tulane Univerity has a systemic sexual violence problem. According to the 2017 Climate Survey, 77% of all student survey respondents report being victims of sexual assault and 71.4% report being subjected to unwanted sexual contact. 75.6% of these perpetrators were Tulane students and 51.8% of the reported instances occurred on campus. This year is no different as “The pandemic did not end sexual violence—or sexual harassment or sexual discrimination—on this campus,” Meredith Smith, Tulane University sexual misconduct response/Title IX coordinator, said. According to the breakdown of student disclosures in the fall of 2020, disclosure rates of sexual misconduct exceeded those from fall 2019 until students were sent home due to COVID-19. These numbers paint a harrowing picture of the failure of Tulane’s conduct system and the inescapable reality of sexual misconduct for students, unchanged since the Climate Survey’s publication and, if anything, overshadowed by COVID-19.

To best understand the priority imbalance between COVID-19 conduct violations and those related to Title IX, an overview of the external legal factors is required. In May of 2020, Title IX statutes around the U.S. changed dramatically. The new regulations redefined what constitutes sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Further, the new Title IX issues important changes to the trial process: an individual accused of sexual misconduct has the right to cross-exam their accuser, and universities have the option to use a more difficult standard of proof by requiring “clear and convincing” evidence.

The majority of sexual misconduct reports at Tulane are outside of these newly defined parameters, but the university pledged to treat all sexual misconduct that was previously a violation of Title IX as eligible for an administrative procedure. Tulane also does not opt to use a stricter standard of proof in formal administrative hearings. Instead, to be found in violation of the Tulane University Code of Student Conduct, there must be a preponderance of evidence, or, in layman’s terms, that it is more likely than not a violation occurred.

Regardless of changing statutes, the sexual misconduct epidemic at Tulane has not disappeared and was rather pushed into the shadows and out of the mind of the administration. Since Tulanians’ return to campus this fall, the university has promptly investigated and prosecuted violators of the university’s COVID-19 guidelines. From expulsions, suspensions, fines and administrative threats, Tulane spares no expense regarding the consequences of public health rule flouting.

When it comes to COVID-19 related offenses, a picture of maskless students standing in a group, sent to the conduct office anonymously without context, is taken at face value and serves as sufficient grounds for swift administrative action. In instances of Title IX violations, all parties are subject to an inefficient and traumatizing investigation and trial that, if anything, dissuades future victims from coming forward and allows perpetrators to remain unscathed. The discrepancy in investigation times illustrate a startling reality in which formal conduct investigations, despite being labeled as equally pressing, are not treated with equal importance.

The lack of administrative ferocity surrounding instances of sexual misconduct prior to COVID-19 demonstrates a pattern. According to the Climate Survey, 84% of both male and female respondents claimed Tulane did or would actively support them with formal or informal resources if they reported sexual misconduct. Despite this figure, in 2017, there were only 205 reported cases at Tulane of sexual misconduct and, of that group, only 16 had disciplinary proceedings, and only 8 resulted in disciplinary action. This trend still exists, and few reports of sexual misconduct proceed to formal conduct hearings. Although the Office of University Sexual Misconduct Response and Title IX Administration supports victims to the best of their abilities, the formal conduct system fails them at their weakest hour. This is unacceptable.

This conundrum is not unique to Tulane. In September 2020, New York University’s newspaper published an article regarding the deprioritization of Title IX during COVID-19. Similar to circumstances at Tulane, NYU suspended multiple students for violating COVID-19 guidelines and sent numerous reminders to students surrounding the administration’s willingness to act immediately and aggressively against those flouting the rules. Yet, according to NYU student Nicole Chiarella, NYU’s administration addresses Title IX with a startling nonchalance amidst a pandemic. “NYU’s continual passivity showcases how without a financial incentive — such as the one provided by reopening campus amid a pandemic — sexual assault will remain as a mere administrative afterthought, subsequently harming survivors … Its persistent disregard for survivors of sexual assault fosters a toxic campus environment that safeguards the accused and ostracizes the very students NYU claims to protect,” Chiarella said.

At Tulane, students’ email inboxes are constantly filled with reminders from the Office of the Vice President of Student Affairs to be respectful citizens and practice proper COVID-19 protocols, yet the administration remains silent on issues of rape, harassment and nonconsensual sexual behavior. How can a university aggressively combat systemic sexual misconduct when victims and non-victims alike lack procedural transparency, a constant influx of information and a feeling of safety when disclosing their experiences? The simple answer is they cannot.

The American Civil Liberties Union estimates that 95% of campus rapes in the U.S. go unreported. One of the primary reasons students do not come forward is a fear that their institution will not believe them. Although, in theory, Tulane mitigates this difficulty by not adopting scrutinous standards of proof, submitting sexual violence victims to lengthy investigation processes, not applied with the same intensity to COVID-19 related offenses, places an undue burden on procedures claiming to be of equal conditions. 

The Code of Student Conduct, in addressing Title IX procedures, promises the university will “promptly and equitably respond to all reports of discrimination and harassment in order to eliminate prohibited conduct, prevent its recurrence, and address its effects on an individual or the community.” Similarly, the Office of Student Conduct, tasked with investigating Title IX and all other conduct violations, claims that the university attempts to conclude their investigations within 60 days of an issuance of the notice of investigation, barring special circumstances. With Tulane hyperfocused on tracking down those guilty of crimes against the COVID-19 guidelines, perpetrators of sexual violence have the luxury of time and administrative apathy, as the conduct system pushes all non-pandemic related issues to the side. 

Delays in Title IX cases during the COVID-19 pandemic have numerous adverse effects on survivors. Accused perpetrators are able to use a public health crisis to further restrict victims’ rights access to an education or in some cases to see justice served. Prior to the May 2020 Title IX changes, Title IX complaints were required to be handled in a timely manner. Although Tulane promises this, including provisions for special circumstances allows the conduct system to revise the timeline of Title IX cases at their own discretion.

It is illogical to assume the administration was unaware of the possible COVID-19 delays in sexual misconduct procedures. Tulane had ample time to create an action plan, but the administration chose not to prioritize this pervasive issue. Various organizations published information directed at academic institutions upon the onset of the pandemic, including that “for students who are survivors of sexual assault, navigating resources and reporting may be more challenging due to COVID-19,” The Rape, Abuse & Incest National Network, the nation’s largest anti-sexual violence organization, said. Equal Rights Advocates, in an article counseling schools on how to navigate Title IX hearings during the pandemic, urged universities to move forward with investigations and hearing without unreasonable delays because students have a fundamental right to “a prompt and equitable resolution of sexual misconduct claims.” Further, the article explains that delays in these procedures force survivors to remain traumatized and uncertain, preventing them from finding closure and potentially leading to institutional betrayal.

Rates of sexual misconduct at Tulane are substantially higher than the national average and the pervasiveness of Title IX violations on campus severely diminish students’ feeling of safety and community. That being said, if the Office of Student Conduct promises to “foster a safe and healthy community in which academic success can occur” how can they push Title IX issues to the side which effectively deny victims a right to their education? The administration has shown it can act swiftly to punish violators of COVID-19 guidelines, build temporary outdoor classrooms, and enforce mask and testing mandates. Yet, this enthusiasm disappears when it comes down to tackling the pre-existing and well-documented sexual misconduct problem on campus. 

To address the administrative difficulties of addressing sexual misconduct, “Let’s start with admitting that the system is hard, even if it works perfectly, and so to dedicate ourselves to unpack each step and possibility in the investigation and adjudication and put as much care and support as we can into a system that is processing so much pain,” Smith said. Tulane cannot continue to treat cases of sexual misconduct with apprehensiveness and lanquidity; it must address these procedures with the same intensity and order as it does with violations of COVID-19 guidelines.