(Institution)
A Guide to Title IX on Campus:
The Nuts and Bolts
(updated March 2015)
Richard T. (Rick) Olshak
Associate Dean of Students
Illinois State University
Affiliated Consultant, National Center for
Higher Education Risk Management (NCHERM)
(date)
OUTLINE
A.
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C.
D.
History of Title IX
The 2011 Dear Colleague Letter
Developments since the 2011 DCL
Future Challenges
DISCLAIMERS
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This session is not intended to service as legal advice
Intended for a wide audience and presumes no
previous knowledge; some of this material is likely to
be a review for some participants
The material is primarily centered around incidents
involving students, but all of the material is
transferrable to the employment context.
This Power Point presentation is text heavy – for a
reason
Views expressed today reflect the presenter’s views
only; not Illinois State University, NCHERM, or ASCA
YOUR PRESENTER
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Associate Dean of Students at Illinois State University
Previously conduct and conflict resolution officer at
Illinois State University, SUNY-Cortland, and
Georgetown University
Certified Title IX Officer and TIX Investigator
Past President, Association for Student Conduct
Administration (ASCA)
Affiliated Consultant, NCHERM
Community, court, and higher education mediator and
mediation trainer
Experienced Title IX hearing officer
A. History of Title IX
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Originally passed in 1972 as Title IX of the Education
Amendments of 1972; governed by the Department of
Education and enforced through its Office for Civil
Rights (OCR)
Amended Title IX of the Civil Rights Act of 1964
Often understood only in the context of its impact on
high school and collegiate athletics though there was
no explicit mention of sports; the scope of Title IX is
much broader…
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The law states that:
"No person in the United States shall, on the basis
of sex, be excluded from participation in, be
denied the benefits of, or be subjected to
discrimination under any education program or
activity receiving Federal financial assistance..."
—United States Code
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Covers all educational activities and applies to all
members of the academic community
“Educational activities” includes activities both inside
and outside the classroom, including student activities,
clubs and organizations (some sex-specific
organizations exempted)
Applies to all institutions receiving any federal funding
(public and private)
TIX is a gender equity law that prohibits discrimination
based on any gender bias (not solely a women’s rights
law)
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1990 Clery Act
1997 Dear Colleague Letter from OCR (Sexual
Harassment Guidance)
1997 Higher Education Reauthorization Act
2001 Dear Colleague Letter from OCR (Revised Sexual
Harassment Guidance)
2009-2010 Center for Public Integrity investigative
articles
2011 Dear Colleague Letter from OCR (Sexual Violence
Guidance)
B. The 2011 DCL
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What is an OCR Dear Colleague Letter (DCL)?
Simply, OCR DCL letters provide regulatory guidance
from the Office for Civil Rights; these letters are
published in the Federal Register and are intended to
influence institutional policies and procedures. The
contents of the letters are enforceable through OCR.
Enforcement comes in the form of Voluntary Resolution
Agreements (“302 Letters”) and Resolution
Agreements (“303 Letters”)
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Obligation to respond:
“If a school knows or reasonably should know about
student on student harassment that creates a hostile
environment, Title IX requires the school to take
immediate action to eliminate the harassment, prevent
its recurrence, and address its effects.”
Page 4, 2011 DCL
(emphasis added)
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Simply put, we must:
STOP
PREVENT
REMEDY
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“If a school knows or reasonably should know about
student on student harassment that creates a hostile
environment, Title IX requires the school to take
immediate action to eliminate the harassment, prevent
its recurrence, and address its effects.”
“Knowing” means that a “responsible employee” has
been given either actual or constructive notice of
sexual harassment, sexual misconduct,
relationship/domestic violence, stalking, or any other
incidents which are driven by gender
bias/discrimination
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The obligation to respond may include incidents that
take place off-campus, if that behavior may result in a
hostile environment on campus
It does not matter who files a complaint (student,
parent, third party); school must promptly investigate
the complaint
OCR notes that Title IX investigations are different than
law enforcement investigations, and a criminal
investigation does not relieve the institution of its
responsibility to act in a prompt, thorough, and
impartial manner.
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Who is a responsible employee?
A responsible employee is one who:
• Has authority to take action in response to sexual harassment, sexual
misconduct, etc.
• Has the duty to report sexual harassment, sexual misconduct, etc. to
appropriate officials
• Is someone a student could reasonably believe has this authority or
duty (2014 Q&A)
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Don’t confuse responsible employees with Campus
Security Authorities (defined under Clery) which
include campus police, security, those defined as
recipients of reports, and officials with responsibility
for student/campus activities
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Was the 2011 DCL necessary?
There are 4,000 reported incidents of sexual battery
and over 800 reported rapes/attempted rapes in U.S.
high schools
Estimates indicate that 20% of women and 6% of men
will be victims of sexual violence during their years in
college
Victims of assault are more likely to perform poorly
academically, and to experience depression and PTSD,
abuse alcohol/drugs, and to contemplate suicide
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Was the 2011 DCL necessary?
OCR has found numerous schools out of compliance
with the 2011 DCL and required those schools to
institute compliant policies and processes
Higher education behaved its way into the 2011 DCL,
given attempts by the federal government to get our
attention in 1990, 1997, and 2001
“Free speech” activists have complained that the DCL
has created an anti-male bias on college campuses.
This is a false argument that I have written extensively
about at olshak.com
In short, YES, the 2011 DCL was necessary
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The Structure of the DCL
I. Obligation to Respond
II. Procedural Requirements
III. Prevention and Remedial Measures
IV. Remedies and Enforcement
For the purpose of today’s session, we will focus almost
exclusively on the first two sections of the 2011 DCL.
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Applies to sexual harassment, sexual violence (a form
of sexual harassment), relationship violence, and
stalking
All schools are required to publish and disseminate a
notice of nondiscrimination, and direct inquiries to
institution’s Title IX Coordinator; must be broadly
distributed to students, employees, and those seeking
admission or employment.
All schools are required to publish and disseminate the
name, title, and contact information for the person
designated to coordinate compliance with Title IX. Title
IX coordinators must have adequate training to be able
to meet their compliance obligations.
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Once on notice, school must inform complainant of
process and seek consent to move forward;
confidentiality may be requested, but not guaranteed
If complainant insists that her/his name not be used,
school must inform complainant that ability to respond
may be limited (unless sufficient information is
otherwise available to move forward independently)
However, if environment is pervasive, school must
weigh request for confidentiality against the greater
good of the community – and must inform complainant
that her/his name is being used
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All schools are required to adopt and publish
grievance procedures for the prompt and equitable
resolution of student and employee sex discrimination
complaints.
There are 11 key points worth noting within grievance
procedure requirements and recommendations.
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Procedural Guidance
1.
Separate processes are not required as long as existing
processes conform to OCR expectations; student conduct
procedures (and other forms of managing grievances) may be
employed if they are adequate.
2.
While mediation may be used to resolve some sexual
harassment cases, it may not be conducted solely between
parties, but must include a trained mediator. Mediation is not to
be used in cases involving sexual assault or rape. (It may be used
to address conditions in the environment, but not the violation
itself.)
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Procedural Guidance
3.
Grievance procedures must be published and widely distributed
to all members of the campus community; electronic publication
is highly encouraged and should be in a predominant location.
4.
There must be a thorough investigation of all complaints. In each
case, schools must review options and resources available.
5.
MOUs (Memorandums of Understanding) with local police forces
are encouraged in order to establish protocols for how a
university may meet its obligation to respond in the face of a
criminal investigation. Schools cannot wait for the outcome of a
criminal investigation to move forward.
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Procedural Guidance
6.
Complaints must be adjudicated with the preponderance of
evidence (more likely than not) standard; this is the same
standard employed by OCR.
7.
Equal due process rights must be afforded to both complainant
and respondent. This includes (but is not limited to) pre-hearing
meetings, the right to an advisor/attorney, and the ability to
present information and witnesses. Schools may not provide due
process rights for respondents that restrict or delay Title IX
protections for the complainant.
8.
Equal appeal rights must be afforded to both complainant and
respondent.
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Procedural Guidance
9.
Training is required for all people involved in the receiving,
investigation or resolution/adjudication of complaints.
10.
Universities must be able to investigate, resolve, and complete
appeals processes of Title IX cases within 60 days.
11.
A Notice of Outcome must be provided to both parties in writing
indicating a finding, any action taken, and outlining the appeals
process. This does not violate FERPA and is in compliance with
the Clery Act.
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Schools should take proactive measures to prevent
harassment and violence through education programs
and by making resources and services available for
victims.
Schools should provide training for all new students,
faculty, staff, and employees.
Schools must encourage reporting and insure that
reporting processes do not deter complaints.
Schools must take immediate action to investigate and
adjudicate complaints.
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Schools must deter retaliation and offer remedies to
mitigate the complainant’s concerns about campus
safety and/or being able to move freely about campus.
Schools should offer counseling, medical, and
academic support as needed.
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When school processes are found to not be in
compliance with OCR expectations:
• Federal Funding may be cut/removed
• Case may be referred to the Department of Justice
• OCR may assert its own resolution processes
C. Developments since the
2011 DCL
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Numerous 302 and 303 letters involving colleges and
universities across the nation (key findings come from
University of Montana and SUNY system)
2013 DCL on Students with Disabilities and Athletics
2013 DCL on Retaliation
2013 DCL on Pregnant and Parenting Students
2014 Campus SaVE Act (Campus Sexual Violence
Elimination Act - DNP) and VAWA (Violence Against
Women Act) resulted in rule-making changes affecting
the expectations of campuses
2014 White House report and OCR “Questions and
Answers on Title IX and Sexual Violence” (46 p.)
Several bills pending in Congress
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Further defined “confidentiality” in Title IX reporting
• Who is “Confidential”?
 Licensed professional counselors (acting within scope)
 Pastoral counselors (acting within scope)
• Who may be “Confidential”?
 Student health centers and staff***
 Mental health professionals and staff***
 Victim advocate / Sexual assault services and staff***
*** when acting in capacity both for which they are employed and receive the
disclosure within the scope of that employment
Who is not “Confidential”?
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Faculty
Mediators
Student Affairs staff
Athletics staff
Faculty Advisors
Ombuds
Academic Affairs
Anyone else…….
Student organization Advisors
RAs, residence hall staff
Campus Police / public safety
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Further defined “responsible employee” (previously
noted), but went further:
• Schools can be held responsible for harassment if any person
perceived to be a responsible school employee was put on notice and
took no corrective action
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Offered additional guidance on training, education, and
prevention
Offered clarity on the responsibility to conduct robust
investigations
Provided additional guidance on interim measures,
appeals, and other issues
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New reporting requirements
• Domestic violence, dating violence, stalking
• National origin and gender identity added to hate crime categories
• Victim’s names to be withheld from timely reports involving where
such reporting causes reasonable fear of harm
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New training requirements
• New students and new employees must be offered “primary
prevention and awareness programs” that promote awareness of rape,
acquaintance rape, domestic violence, dating violence, sexual assault,
and stalking
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New procedural requirements
• Institutions must inform students of reporting procedures, as well as
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other procedures such as the preservation of evidence
Institutions must inform students of both criminal and institutional
reporting options
Institutions must review victim’s rights and institutional responsibilities
such as judicial no-contact, restraining, and protective orders
Burden of proof (standard of evidence) must be stated in institutional
policy (remember OCR requires the preponderance test)
Institutional officials must be trained on investigations and conducting
hearings that protects the safety of victims and promotes
accountability
Sanctions and protective measures must be identified and
communicated
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New procedural requirements
• Both accuser and accused are allowed an advisor of their choice in any
campus meetings or proceedings
• Both accuser and accused must be simultaneously notified in writing
of the outcome of all conduct and appeal proceedings
• Institutional policy must address how victim’s confidentiality will be
protected
D. Future Challenges
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As previously noted, several bills have been introduced
in Congress which might significantly effect colleges
and universities. The most well known has been
introduced by Senator McCaskill and others called the
Campus Safety and Accountability Act
Additionally, a number of other OCR DCLs are in the
pipeline. Among the topics that OCR is expected to
address are:
• Defining “consent” and defining “due process” requirements
• Expulsion as a default sanction in sexual violence cases
• Students on TIX hearing panels (OCR has already opined on
this)
QUESTIONS ???
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If you have additional questions and/or comments,
please feel free to contact me at:
• olshak.rick@gmail.com
• or visit www.olshak.com
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Materials presented today were developed with the
assistance of:
• US Department of Education
• National Center for Higher Education Risk
Management (NCHERM)
• Association of Title IX Administrators (ATIXA)
• National Association of College and University
Attorneys (NACUA)