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The federal government's investigation into FSU covers sexual harassment and rape.
Published Apr. 7, 2014

The federal investigation revealed Thursday into how Florida State handled rape accusations against star quarterback Jameis Winston goes beyond sports.

Title IX's guidelines for schools to provide equal athletic opportunities for men and women are well known, but the federal law also governs how they treat sex discrimination, including harassment and rape.

The shift in the 40-year-old law stems from a 2011 Department of Education memo that charged schools with a massive task: change the culture of on-campus sexual violence.

"Just about all the campuses in America were unprepared for that," said Peter Lake, director of Stetson University's Center for Excellence in Higher Education Law and Policy.

"I don't think most of them knew it was coming."

And many are still trying to figure out how to deal with it.

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The Department of Education's investigation into FSU centers on Title IX's two separate prongs:Did the school respond to the December 2012 accusations in a "prompt and equitable manner," and did its actions result in a "hostile educational environment?"

If a school "knows or reasonably should know" about an incident, regardless of when it happened, it must investigate, remedy and resolve it. A school's inquiry is separate from criminal investigations, must be "prompt, thorough and impartial," and should last about 60 days, according to federal guidelines.

FSU didn't hold an informal hearing until January, according to a time line from, 13 months after the allegations were reported to campus police, 11/2 months after prosecutors declined to file charges and a few weeks after Winston led the Seminoles to the national championship.

"It's not a specific time limit, but there's no question you're on a shot clock," Lake said. "You can't just lollygag with things."

Although the expectation is clear, it doesn't always happen, said Nancy Hogshead-Makar, the Women's Sports Foundation's senior director of advocacy.

Whether it's a lack of funding, understanding or resources, some schools don't quickly respond to allegations.

"One of the main issues is throwing their hands up in the air: 'We really don't know how to resolve this,'" said Hogshead-Makar, a former Olympic swimmer who has served as an expert in several Title IX cases. "I get it. You don't know, but that's an opportunity to figure out how to resolve it."

Title IX calls for university inquiries to end with a conduct hearing, during which both sides tell their stories and present evidence. Those meetings can end in controversy.

The law requires schools to have a lower threshold for guilt than criminal trials. Instead of proving guilt "beyond a reasonable doubt," universities must have only a "preponderance of evidence" that a violation occurred. That means if it's 50.1 percent likely someone was assaulted, then the perpetrator should be punished.

In August 2012, basketball player Dez Wells was dismissed from Xavier in a sexual assault case even though he was never charged with a crime. He has since filed a lawsuit, which is pending, against his former school.

"There is a real concern that in an attempt to get rapists off campus, there's warlock hunting going on at the expense of the rights of accused individuals," Lake said.

The lower burden of proof exists for several reasons, said Brett Sokolow, the Association of Title IX Administrators' executive director.

Because punishments are weaker than in criminal courts, the standards of guilt are, too. A higher bar would put a greater burden on the woman, whichwould inject gender discrimination into a law designed for equality.

"The preponderance standard is the only standard that is gender equitable," said Sokolow, who spoke generally and not about any specific case.

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Title IX's public focus began to shift from sports to sexual assault in a 2011 memo from the Department of Education's Office for Civil Rights. That 19-page letter told universities sexual assault is a form of gender discrimination because it hurts students' educational rights.

"That was a wake-up call that we needed to do more," said Jose E. Hernandez, USF's Title IX coordinator.

Lawsuits or inquiries have popped up at dozens of schools since; from large, public universities (Penn State, Michigan State) to small, private ones (Occidental College in Los Angeles, Hanover College in Indiana). A resolution can take months or years.

If the Department of Education finds that FSU violated Title IX, it has two options: do nothing or take away its funding - a punishment that has never been handed down.

"It gives them one hammer, which is withdraw federal funds," Hogshead-Makar said.

FSU also could face a lawsuit from the accuser's two Title IX attorneys, Baine Kerr and John Clune. Plaintiffs in civil suits can receive money, but courts generally look for patterns and are less interested in isolated incidents than the government's investigators.

The case against FSU reveals one of the challenges schools face with Title IX. Because any ruling for one school could change the standards for everyone else, some experts say officials believe they're trying to hit a moving target.

"Not only is it moving, but it's hazy," said Lake, the Stetson professor.

Universities go to training exercises to try to understand the complex guidelines that vary by case.

How do you balance public safety with student and health privacy laws? Are the schools' responsibilities the same for off-campus incidents? What should investigators do if a woman stops cooperating? Must university police share confidential information with administrators if it violates state law?

"Every college administrator I know," Sokolow said, "would like more information on how to do that right."

Matt Baker can be reached at or on Twitter @MattHomeTeam.

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Notable Title IX cases

NEBRASKA: Kathy Redmond alleged the school was indifferent after she accused a football player of rape. Her landmark lawsuit in the mid 1990s helped broaden Title IX's interpretations.

COLORADO: Two women said they were sexually assaulted by football players and football recruits in 2001. Six years later, the school settled a lawsuit concerning its football culture for $2.8 million.

WASHINGTON: A student and athletic department employee sued the school three years after she said she was raped by defensive back Roc Alexander, who later played three years in the NFL. In 2009, a jury ruled in favor of Washington but scolded the school for promoting mediation instead of a police investigation.

ARIZONA STATE: A former student accused the school of deleting emails and ignoring previous misconduct by a football player she accused of rape. A 2009 settlement awarded the woman $850,000 and led to the school appointing a safety officer to review its sexual assault guidelines.

MICHIGAN: The federal Office for Civil Rights began investigating the university this year after critics questioned how it handled sexual assault allegations against a kicker.

NORTHWESTERN: A current student sued the school this year. She alleged it showed "deliberate indifference and retaliation" after she said a professor had inappropriate physical contact with her in 2012.