The firestorm of media coverage, public scrutiny, political commentary, and law enforcement attention surrounding Cornell University's response to an allegation of sexual assault is a powerful reminder of the importance of establishing and maintaining effective processes for the handling of such misconduct on college and university campuses. In particular, proper handling of sexual misconduct¹ allegations – especially those that implicate Title IX of the Education Amendments of 1972 (Title IX), or other forms of relationship violence and sexual misconduct (RVSM), harassment and violence, and security and safety – is critical to ensure the well-being of students and employees, sustain campus culture, and meaningfully address wrongdoing where it has occurred. Likewise, the failure to properly address such reports erodes trust in leadership, undermines the credibility of the organization's commitment to compliance, creates legal exposure, and can cause serious reputational harm. 

Key compliance program best practices can help universities ensure that their programs, including RVSM and Title IX policies and practices, are designed to prevent, detect, and respond to allegations of sexual misconduct that threaten the safety and welfare of students and employees, as well as addressing potential legal violations and breaches of public trust. 

1. Proactive (not reactive) assessment of risk. 

Proactive assessment of risk is fundamental to guarding against or detecting factors that may give rise to risks of sexual misconduct. Universities should consider developing a risk management process to identify, assess, and address the risks of sexual misconduct and mitigate those risks. The risk assessment process should be tailored to the specific profile of the institution to reduce inefficiencies and improve the accuracy of findings. For example, not all universities face significant risks associated with sexual misconduct within collegiate fraternal organizations, but may instead face risks associated with such conduct in college athletics, special-interest housing, study abroad programs, or other specific academic programs or student organizations. Universities can leverage the findings from risk assessments to proactively design, implement, or modify policies, training, communications, and other mitigation measures. 

2. Investigations can support universities in understanding underlying issues and facilitating continuous learning. 

Of course, universities must act swiftly and with appropriate resources to investigate reports of sexual misconduct, but the work does not stop there. Regardless of the findings or substantiation of sexual misconduct, universities should engage in root cause analysis to understand why the misconduct occurred, how to enhance existing policies and procedures, and, where substantiated, how to mitigate the risk of recurrence. Root cause analysis allows universities to isolate systemic issues, identify cultural gaps, and note policy, procedure, resource, or other compliance control weaknesses. This exercise results in more meaningful investigation outcomes, because the investigation not only addresses any specific underlying misconduct and, when appropriate, discipline for the individuals involved, but also addresses the deficiencies that permitted such conduct to occur in the first place. 

Beyond root cause analysis for individual investigations, universities may consider periodically conducting a review or audit of past investigations. This "look back" should independently determine whether internal policies and procedures were appropriately followed, remediation or mitigation efforts have or are being completed, and, where applicable and consistent with the law and internal policies, external or internal stakeholders were or will be made aware. A look back may also help universities identify trends that may not otherwise be detected. As with root cause analysis, lessons learned from such a review can be adapted to strengthen the allegation intake and investigation process.

3. Engage students in enhancing the program.

Universities may consider evaluating institutional culture around issues of RVSM, harassment, safety, and security, and gauge student awareness and sentiment regarding allegation management. Engaging with students can support the risk management process identified above and identify opportunities to enhance policies, procedures, communications, and resources. This engagement may include, for example, listening sessions, confidential surveys, or focus groups composed of a cross-section of students or representatives from student groups. To foster candid and honest discussions, emphasis should be placed on any non-retaliation policies that exist, and, if possible, should be conducted by independent and trained professionals (whether internal or external to the institution). 

4. Strong, explicit, and visible commitment by leadership. 

University leadership, from the governing board to administration and faculty leaders, should provide strong, explicit, and visible support and commitment to the policies, procedures, and other mechanisms that govern sexual misconduct and allegation management, and resources that support victims of misconduct. This commitment should be demonstrated consistently and not retrospectively when faced with scrutiny. For example, this may include designating individuals in leadership positions to serve as the messenger or to deliver communications regarding the university's commitments and operative policies and procedures. 

These best practices are meant to illustrate the opportunities for universities to enhance and strengthen their programs to address allegations of sexual misconduct. Universities should routinely and proactively evaluate their programs to ensure that they align with current best practices and are appropriately tailored to the unique risks and challenges that they face. Doing so in advance of public scrutiny ensures that such efforts are comprehensive and measured. 

For more information, please contact:

Katherine E. Pappas, kpappas@milchev.com, 202-626-5816

Joshua Drew, jdrew@milchev.com, 202-626-5811

Alejandra Montenegro Almonte, aalmonte@milchev.com, 202-626-5864

Therese Kuester, tkuester@milchev.com, 202-626-1462

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¹Sexual misconduct includes, but is not limited to, sexual harassment, sexual assault, dating violence, domestic violence, stalking, cyberstalking or harassment, sexual exploitation, and other nonconsensual sexual conduct.

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