Title IX experts disagree about MU's obligation in Menu Courey case

Wednesday, January 29, 2014 | 6:00 a.m. CST; updated 8:08 a.m. CST, Wednesday, January 29, 2014

COLUMBIA — It's a question of interpretation and who really knew what and when they knew it.

That's the not entirely satisfying answer to the question of whether an MU employee ought to have alerted the university to the allegation that a student athlete, Sasha Menu Courey, was saying she'd been sexually assaulted.

A news release from the MU News Bureau on Tuesday answered some questions about Menu Courey's allegation of sexual assault by at least one MU football player. What remains unanswered is the broader question of if and when the university is legally obligated to investigate under Title IX.

Menu Courey, a swimmer on scholarship at Missouri, committed suicide in June 2011 after a series of hospitalizations for psychological problems. She had previously attempted suicide once when she was in high school and later in April 2011. Her parents have said that she suffered from borderline personality disorder, according to ESPN's "Outside the Lines" investigation.

Title IX of the Education Amendments of 1972 prohibits discrimination on college campuses based on a person's sex. An April 2011 letter from the U. S. Department of Education Office for Civil Rights states that sexual harassment of a student is a form of sex discrimination prohibited by Title IX.

Sexual harassment includes sexual violence — acts such as rape, sexual assault, sexual battery and sexual coercion — and interferes with a student's right to an education free from discrimination, according to the letter.

Under Title IX, a school is required to respond when it "knows or reasonably should know" about sexual harassment or violence involving students. Action must be taken to end student-on-student harassment or violence, ensure that it does not happen again and address any effects, according to the letter.

The letter expresses the Department of Education's interpretation of Title IX, said Erin Buzuvis, professor of law and director of the Center for Gender and Sexuality Studies at Western New England University. The department relies on this interpretation to determine whether a school is in compliance with the law, she said.

Interpretation controversies

According to an MU News Bureau statement released Tuesday, the university did not investigate the alleged assault following the Columbia Tribune's February 2012 news story about Menu Courey's death because the article did not specify whether the incident occurred on campus or whether it involved any other students.

The reference in the Tribune article to the incident was brief and vague: "Menu Courey also wrote in her diary months later that she was sexually assaulted at the end of her freshman year. She did not name the attacker." But it could be enough to obligate the university to investigate under Title IX, Buzuvis said.

According to the ESPN investigation, a copy of the story was circulated within MU's athletics department.

"It raises a red flag," Buzuvis said. At the very least, MU should have looked into where the incident took place and whether it involved students, she said.

Brett Sokolow, executive director of the Association of Title IX Administrators, interprets the issue differently. He said the Tribune story didn't contain enough information to trigger an investigation.

The university would have known, Sokolow said, if Menu Courey had informed Meghan Anderson, former MU athletics department academic adviser, of the assault, as Menu Courey wrote in her diary and ESPN reported. Anderson has said that Menu Courey didn't tell her about an assault.

Without a request from Menu Courey or statements from some other witness, the university couldn't reasonably be expected to know about the incident until the ESPN "Outside the Lines" story came out last week, Sokolow said.

"It doesn't sound like the athletic department knew," Sokolow said. "I don't sense a cover-up."

Creating a safe and secure environment

Under Title IX, the university has an obligation not only to the victim but also to the rest of its students. Without gathering any details, the university could not have known the extent of the effects of any possible incident, Buzuvis said.

"The law is very clear that the university still has to do something," Buzuvis said, even if the victim is no longer a student or, as in this case, is no longer living.

Even if the harassment or violence occurred off-campus, a school might be required to take action if the victim continued to experience the incident's effects in school or if there was a threat of harassment or violence to other students, according to the Department of Education's letter.

Again, interpretation here differs. Sokolow said that Title IX applies off campus only under narrow circumstances. Although most campuses would want to address off-campus issues, it's not necessarily mandated under Title IX, he said.

"The obligation that the school has is to ensure a safe and secure environment," said Neena Chaudhry, senior counsel and director of equal opportunities in athletics for the National Women's Law Center.

In the statement released Tuesday, MU made clear that it had not investigated Menu Courey's allegations in part because its Office of Student Conduct never received a response from her parents as to whether they wanted to proceed with an investigation.

However, according to the Department of Education's letter, an investigation is required regardless of whether students or their parents have filed a complaint or want action taken on the students' behalf. And a victim's request for confidentiality does not remove the obligation of the school to investigate or respond to an incident. If a victim requests confidentiality, a school should still seek to address the effects of an incident or prevent the recurrence of incidents, even if it cannot discipline an alleged harasser, according to the letter.

A school's investigation should be distinct from a criminal investigation, and law enforcement involvement doesn't relieve a school of the obligation to investigate and respond to any incident of sexual harassment or violence.

The MU Police Department turned over information to Columbia police on Saturday, according to news releases from both agencies.

Law enforcement has different standards of proof than those of Title IX, and could also decide not to prosecute. Standards of proof in Title IX investigations are generally lower, Chaudhry said.

In a criminal court, evidence must convince a jury "beyond a reasonable doubt" that the accused is guilty. For student conduct investigations, a student conduct board would have to find only that it was more likely than not that a violation occurred to take action, according to previous Missourian reporting.

At the moment, there are no open complaints against MU in the Office for Civil Rights in regard to the university's Title IX compliance, said Jim Bradshaw, spokesman for the U.S. Department of Education. The Office for Civil Rights could not comment on possible investigations, he said.

If the Office for Civil Rights were to find that a university was not compliant with Title IX, the school's federal funding could be withdrawn.

No school has ever had funding withdrawn, Chaudhry said. Usually a school can come to an agreement with the department to get into compliance with the law, she said.

University of Missouri System President Tim Wolfe said that he recommended the UM System Board of Curators hire an independent consultant to look into whether the university could have better handled the case and how it could better handle such cases in the future.

The board will meet beginning Wednesday afternoon. The meeting will continue through Friday, and the board is expected to consider Wolfe's recommendation during that time.

Supervising editor is Katherine Reed.

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