OMBUDS AND TITLE IX COORDINATORS: PROCEDURAL CONVERGENCE OF UNIVERSITY DISPUTE RESOLUTION MECHANISMS FOR HANDLING SEXUAL MISCONDUCT

Abstract

This dissertation examines university non-law organizational dispute mechanisms (Ombuds and Title IX Coordinators) and their handling of sexual misconduct disputes. In 2011, the U.S. Department of Education Office of Civil Rights issued a Dear Colleague Letter to all colleges and universities receiving federal funding. In the letter, the Department of Education substantially redefined compliance with Title IX’s requirements regarding the university response to sexual abuse by faculty, staff or students. The 2011 letter imposed new liabilities on colleges and universities and greatly increased attention to the problem of sexual misconduct at universities. In response, universities faced a growing number of lawsuits, a proliferation of advocacy groups, and a White House Task Force on Protecting Students from Sexual Assault. What, precisely, universities should do in response to these pressures remains somewhat unclear. Universities face a dilemma in determining how to create fair, consistent, and reliable processes that respect the rights of both alleged perpetrators and victims, while at the same time encouraging people to bring complaints forward. Universities also must determine how to change the culture and norms surrounding campus sexual misconduct. These goals are neither easily achieved nor fully compatible. This dissertation examines how two university offices responded to these challenges. One is the long-standing office of Ombuds, which by tradition and ethical norms has been committed to using informal processes for hearing complaints. The other is the office of Title IX Coordinator, which uses formalized processes modeled in some ways on procedures used by prosecutors and courts. Data collection comprised of a review of 1200 documents and interviews with 14 Ombuds and 13 Title IX Coordinators from 22 large institutions of higher education. This dissertation observes that Ombuds and Title IX Coordinators, despite being designed in sharply contrasting ways, both face some pressures favoring formality and others favoring informality. In responding to these cross-cutting pressures, the two offices have converged (but not fully) toward a hybrid that blends elements of formality and informality. Drawing on theories of non-law ordering, neo-institutional norms, and street-level bureaucracy, this dissertation proposes a theory of procedural convergence to understand the evolution of these two offices. The theory of procedural convergence posits that organizational processes are shaped by both law-like norms favoring legal formality and competing norms of managerial effectiveness and substantive justice favoring informality. Rather than being drawn uniformly away from fidelity to law-like norms, as some theories of organizational responses to law would suggest, both Title IX Coordinators and Ombuds have become a complex blend of informality and formality.