Last week, Rachel Axon of USA Today reported that the U.S. Department of Education’s Office for Civil Rights opened an investigation into Florida State University’s handling of the Jameis Winston rape allegations. The Florida State investigation is the latest in a series of investigations into the adequacy of universities’ responses to sexual harassment—UConn, Michigan and UNC are all currently under investigation as well, according to various reports.
Now that one of the biggest stars in college football has been pulled back into controversy, many are curious about the scope, process and consequences of a Department of Education investigation.
According to Mark Schlabach of ESPN.com, Winston’s accuser claimed he raped her on December 7, 2012. The Florida State Attorney’s Office opened an investigation into the incident in November 2013 and one month later, it announced no charges would be brought against Winston.
It is unclear when Florida State’s investigation into the rape allegations began. But according to Adam Weinstein of Deadspin.com, the university took action in January 2014 following the BCS championship game.
The university brought code-of-conduct charges against two of Winston’s teammates, Chris Casher and Ronald Darby, and brought Winston in for questioning. When brought in, Winston reportedly declined to answer questions regarding the alleged rape and the meeting instead turned into an “educational conversation” where university officials advised the athlete of its alcohol policies and code of conduct. Winston was not charged with any conduct violations.
What will federal investigators be looking for?
Unlike prior investigations in the Winston case, the subject of the federal investigation is the university and whether it met its obligations as a Title IX funding recipient.
Title IX prohibits sexual discrimination, which includes acts of sexual violence, in universities that receive federal financial assistance. The Department of Education is tasked with designing and implementing rules universities must follow when responding to sexual harassment complaints. In addition, the Department of Education’s Office for Civil Rights (OCR) is empowered to investigate complaints that a university has failed to comply with these rules.
In April 2011, OCR released a guidance letter clarifying how it would evaluate universities’ compliance with the department’s rules regarding sexual harassment. As this document reflects OCR’s latest thinking on sexual harassment compliance, it provides a window into what federal investigators will be looking for in the Florida State case.
Based on what we know about the Winston case, there are at least two areas of investigation that OCR may focus on:
Timeliness of the university’s internal investigation
The 2011 guidance letter states that “schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation.” The letter does recognize that the schools may need to delay the fact-finding portion of their investigation while the police are gathering evidence. But once the police department has completed its gathering of evidence, the university must “promptly” resume its investigation.
As mentioned above, Winston’s accuser claimed he raped her on December 7, 2012. We know that the university took action in January 2014, but we do not know if it began investigating before that time. OCR may investigate the timing of Florida’s State’s response to determine whether it was sufficiently prompt and whether any delay caused by the police investigation was warranted.
The “meeting” with Winston
The 2011 letter also states that during a school’s investigation, the alleged victim and the alleged perpetrator “must be afforded similar and timely access to any information that will be used at the hearing.” Specifically, the letter instructs that “a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her story,” unless it also provides a similar pre-hearing meeting to the alleged victim.
According to Weinstein, Winston was brought to a meeting with university administrators in late January. During this meeting, Winston reportedly did not answer any questions regarding the rape accusations and instead the meeting became “an educational conversation.”
It is unclear how OCR would treat this meeting. But it could conceivably be treated as a “pre-hearing” meeting, and OCR may then investigate whether a similar opportunity had been provided to Winston’s accuser.
What are the possible consequences if FSU is found to be in violation of Title IX?
If OCR finds FSU has failed to comply with applicable regulations, it is required by law to first seek to negotiate a voluntary resolution agreement with the university. Resolution agreements typically require the university to make certain changes to its sexual harassment policy and include provisions that allow OCR to monitor implementation of the changes.
For instance, in 2012, a federal investigation into Yale University’s sexual harassment policies ended with a resolution agreement that required Yale to establish a new sexual harassment grievance process to handle complaints and to provide progress reports to OCR annually for two years.
In the event that a voluntary resolution cannot be reached, OCR has two options.
First, it may initiate administrative proceedings to suspend or terminate federal funding to the university.
Second, it may refer the case to the US Department of Justice, which may in turn bring a lawsuit against the university asking a court to order the university to make changes to its program.
Either of these options are extremely unlikely. The Department of Education has never stripped a university of its federal funding for a Title IX violation, and only a handful of sexual harassment cases are referred to the Department of Justice.
Winston should not face penalties as a result of OCR’s investigation, as he is not the subject of the investigation. However, FSU has stated that it may issue code-of-conduct charges against him if additional information regarding the incident becomes available. It is unclear whether any new information unearthed by the federal investigation can be legally used by the school the bring code-of-conduct charges against Winston.
Would Jameis Winston be legally obligated to cooperate in the investigation?
Perhaps the most intriguing question is whether Winston is required to testify or cooperate with investigators. As mentioned earlier, he has remained silent about the incident up to this point.
Based on OCR’s Case Processing Manual, which governs its investigations, it is unclear whether Winston would be legally obligated to cooperate with investigators. Section 602(d) of the manual provides for witness interview procedures.
When interviewing a witness, OCR is required, among other things, to inform the witness of the purpose of the interview and of their right to personal representation during the interview. But the manual does not discuss instances where a witness refuses to cooperate.
Moreover, the federal regulations governing the Department of Education do not appear to have any provisions that would empower OCR to compel a witness who is not employed by the university to testify during an investigation. In the absence of any legal authority conferring such power to the OCR, Winston may be able to legally refuse to cooperate with federal investigators.
In addition, the Manual states that while OCR has a general right to the university’s information and records during an investigation, it has no legal authority to require information from others.
How long would this investigation take?
It is difficult to predict the length of this investigation. The Yale investigation mentioned earlier took about a year; a system-wide investigation of the State University of New York (SUNY) took close to three years.
Meanwhile, OCR is also currently investigating the University of Michigan’s handling of allegations that former football player Brendan Gibbons raped another student.
Kevin Chen is a graduate of Yale Law School and a practicing attorney in San Francisco.