The University of New Mexico, which had more than 27,000 students in 2015, already had taken steps to reform its handling of sexual assault – creating a presidential task force to study the issue, forming a sexual assault response team and launching a website to publicize its sexual harassment policies and procedures. Justice Department officials credited the university for some of those steps but said the school is still out of compliance with federal law.
“Our findings reveal how a flawed system for responding to sexual assault fails all those involved – from victims seeking adequate protection, to accused students demanding fair hearings, to faculty looking for clear instruction,” Vanita Gupta, who heads the Justice Department’s Civil Rights Division, said in a statement. “These failures diminish educational opportunities and threaten community confidence in the integrity and fairness of the university’s policies and practices.”
University of New Mexico President Robert G. Frank said in a statement that the school is “not alone in trying to deal with one of the most difficult problems on today’s college campuses,” but he said the Department of Justice’s letter provided “an inaccurate and incomplete picture of our university.”
“It is a brief snapshot in time that came on the heels of a high profile and widely publicized accusation of a sexual assault involving UNM students,” Frank said. “Even so we receive it in a spirit of cooperation and pledge to continue our campus wide improvements to combat this complex issue.”
Colleges across the country are struggling with how to handle sexual assault, and in some ways, the University of New Mexico’s plight is not unique. In a Washington Post-Kaiser Family Foundation poll conducted last year, 20 percent of women who attended college during the previous four years said they were sexually assaulted. As of Feb. 26, federal investigations related to sexual violence were underway at 167 colleges and universities, though those were conducted by the Education Department, not the Justice Department.
A Justice Department spokeswoman said lawyers there had authority to investigate under federal laws prohibiting sex discrimination in education programs. The Justice Department conducted a similar, comprehensive investigation of the response to sexual assault by the University of Montana and the Missoula, Montana, criminal justice system.
Shaheena Simons, chief of the Educational Opportunities Section at the Justice Department’s Civil Rights Division, and Damon Martinez, the U.S. Attorney in New Mexico, wrote in the letter that they launched the investigation at the University of New Mexico in December 2014, after students complained their reported sexual assaults were not appropriately addressed. In spring of that year, the university faced allegations that two UNM football players had joined with a third man to rape a female UNM student. A local district attorney eventually dropped charges against the men after determining that there was insufficient evidence to prosecute.
The Justice Department concluded that even with some changes to policies, the university still has significant problems in responding to alleged sexual assaults. Its policies, for example, suggested “that unwelcome conduct of a sexual nature does not constitute sexual harassment until it causes a hostile environment or unless it is quid pro quo,” Simons and Martinez wrote. Students who went through training still “lacked basic understandings about consent, reporting” and the law, and some were left with the perception that the university was focused “not on condemning sexual assault, but on blaming women for putting themselves in dangerous situations by choosing to drink alcohol,” they wrote.
The police department, they wrote, was sometimes “short and dismissive” with the people who were making accusations and would focus investigations on the accuser, rather than the accused.
Meanwhile, investigations by the university’s Office of Equal Opportunity languished: in 13 cases the Justice Department reviewed, it took an average of 137 days from the time a complaint was filed to the time a final determination was issued, Simons and Martinez wrote.
The office also adopted some peculiar investigative practices. For example, according to the letter, the office was not required to ask an accused person any questions about the incident, and it adhered to “an unwritten policy that a finding of probable cause requires corroboration of the alleged incident by an eyewitness, tangible evidence, or admission by the respondent of the offending behavior.”
In two instances, according to the Justice Department, high-level administrators pressured the office to finish investigations – once because the case was high-profile and another time because the accused was “well positioned, politically, in the state,” Simons and Martinez wrote. In a third case, a dean requested a delay because a high-profile guest was visiting a person who was accused of wrongdoing, Simons and Martinez alleged.
Frank, the University of New Mexico president, said in the statement: “Universities like UNM face the unattainable goal of stopping campus sexual assault. We are asked to be investigators and adjudicators of incredibly complex situations that typically involve alcohol or drugs, and frequently occur off our campus. The reality is that federal regulations hold us to a higher standard than any city, any police department, or any court system, even though our primary mission is to provide high quality education, health care, and research.”
Simons and Martinez recommended in the letter that the university revise its policies and procedures, provide more effective sexual harassment training to students, faculty and staff, and step up their investigations when wrongdoing is alleged. Frank said university officials would “carefully consider the DOJ’s findings and move swiftly to implement as many of the suggested changes that are reasonably and realistically possible.”