Title IX, Meet Clery,
Clery Meet Title IX:
Implementing the VAWA
Amendments
Steven J. Healy, Margolis Healy & Associates
Jeffrey J. Nolan, Esq., Dinse, Knapp & McAndrew, P.C.
Agenda
• If it's not Title IX, why should I care?
• Codification of portions of the DCL
• Requirements
• Practical Challenges
• Negotiated Rulemaking
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Agenda
A Good Faith Effort
http://www.ifap.ed.gov/dpcletters/
GEN1413.html
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Title IX Fundamentals
Title IX of the Education Amendments of
1972 (Title IX), 20 U.S.C. §§ 1681 et
seq., prohibits discrimination on the
basis of sex in education programs or
activities operated by recipients of
Federal financial assistance.
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Sexual Violence Defined
• Sexual violence is a form of sexual
harassment prohibited by Title IX.
- Sexual violence refers to physical sexual acts
perpetrated against a person’s will or where
a person is incapable of giving consent due to
the victim’s use of drugs or alcohol
- An individual also may be unable to give
consent due to an intellectual or other disability
- May include rape, sexual assault, sexual
battery, and sexual coercion
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Scope of Coverage
• Title IX also prohibits gender-based
harassment, including:
- acts of verbal, nonverbal, or physical
aggression, intimidation, or hostility based
on sex, even if those acts do not involve
conduct of a sexual nature
- Sex-based harassment by those of same
sex
- discriminatory sex stereotyping (e.g.,
harassment of gay and lesbian students)
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Title IX Regulations - 34 C.F.R. Part 106
• § 106.4: Assurance of compliance required of
•
•
•
recipients of federal financial assistance
§ 106.8: Designation of responsible employee and
adoption of grievance procedure
§ 106.9: Notification of Title IX nondiscrimination
obligations in education programs and
employment
§ 106.31: “no person shall, on the basis of sex,
be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under
any academic, extracurricular, research,
occupational training, or other education program or
activity . . .”
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Overview of Mandates
• Notice of Non-discrimination
• Title IX Coordinator
• Grievance Procedures
- Notice
- Prompt and equitable
- Adequate, reliable, and impartial investigation of
complaints
- Designated and reasonably prompt time frames
- Notice of outcome
• Prevention, Education & Training
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Summary of Institutional Obligations
• If institution knows or reasonably should
know, Title IX requires immediate action
to eliminate the harassment, prevent its
recurrence, and address its effects.
• Must designate Title IX Coordinator,
publish notice of nondiscrimination, and
adopt and publish grievance procedures.
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Summary of Institutional Obligations
• Train employees to report harassment to
appropriate institutional officials
• Train employees with authority to address
harassment, or who are likely to witness it or
receive reports, how to respond properly
- OCR examples: “teachers, school law
enforcement unit employees, school
administrators, school counselors, general
counsels, health personnel, and resident
advisors.”
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Summary of Institutional Obligations
• Investigate complaints adequately, reliably
and impartially
• Provide grievance procedures that
promote prompt, equitable resolution of
complaints
• Undertake education and prevention
efforts
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Violence Against Women Act (1994)
Designed to improve criminal justice response to
violence against women by, for example:
• Strengthen federal penalties for repeat sex
offenders
• Create a federal “rape shield law,” which is
intended to prevent offenders from using
victims’ past sexual conduct against them
• Strengthen victims’ ability to obtain/enforce
protection orders
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Violence Against Women Act (1994)
• Funding training for police and judges
regarding domestic and sexual violence
• establishing the National Domestic Violence
Hotline
• developing coordinated community responses
to prevent and respond to violence against
women
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Clery Act VAWA Amendments
• Part of Violence Against Women
Reauthorization Act (“VAWRA”) of 2013
• Amends HEA “to improve education and
prevention related to campus sexual
violence, domestic violence, dating
violence, and stalking”
• Effective March, 2014/October, 2014
ASR
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Keeping Perspective
• COMPLIANCE IS IMPORTANT, BUT
PREVENTION AND RESPONSE IS
MORE IMPORTANT
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The Connections
Essential Components
• Policy:
Coordinated/multidisciplinary response
and investigations
• Compassionate,
victim-centered
services and trauma
informed response
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Title IX/DCL/VAWA
Guidance
• Title IX requires immediate
action to eliminate the
harassment, prevent its
recurrence, and address its
effects.
• Training be provided to any
employees likely to witness
or receive reports of sexual
harassment and violence,
including teachers, school
law enforcement unit
employees, school
administrators…
The Connections
Essential Components
• Objective fact finding
• Thorough
investigations and
reports
Title IX/DCL/VAWA
Guidance
• The fact-finder and
decision-maker should
have adequate training or
knowledge regarding
sexual violence.
• Adequate, Reliable and
Impartial investigations
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New Policy Requirements
• Several specific procedural
protections/statements must be included
in 2014 ASR
• Some were derived or adapted from April
2011 DCL
• Applicable to cases involving student
AND employee complainants
• Must align policies with ASR statements
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New Policy Requirements
Institutional Commitment to Prevention
• [Name of institution] is committed to
providing a safe learning and working
environment. In compliance with federal
laws, we have adopted policies and
procedures to prevent and respond to
incidents of sexual assault, domestic
violence, dating violence, and stalking
involving members of our campus
community. These guidelines apply to all
students, faculty, staff, contractors and
visitors
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New Policy Requirements
Definitions
• Sexual Assault, Domestic Violence, Dating
Violence, and Stalking
• Must include local and should include
institutional definitions
• Must include definition of consent in
applicable jurisdiction
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New Policy Requirements
Reporting An Incident
•
Procedures victims should follow… ,including written information about–
•
The importance of preserving evidence that may assist in proving that the alleged
criminal offense occurred or may be helpful in obtaining a protection order;
•
How and to whom the alleged offense should be reported;
•
Options about the involvement of law enforcement and campus authorities, including
notification of the victim’s option to–

Notify proper law enforcement authorities, including on-campus and local police;

Be assisted by campus authorities in notifying law enforcement authorities if the
victim so chooses; and

Decline to notify such authorities; and

Where applicable, the rights of victims and the institution’s responsibilities for orders
of protection, no contact orders, restraining orders, or similar lawful orders issued by
a criminal, civil, or tribal court or by the institution.
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Challenges to Implementation
• Coexisting response requirements
- Responsible employee
- Campus Security Authority
- Mandatory Reporter of Suspected Child
Abuse
• Centralized reporting & review processes
• Consistent and on-going training adjusted
regularly based upon community needs &
climate (DFSCA)
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New Policy Requirements
Victim (& Other Party) Confidentiality
• Information about how the institution will protect
the confidentiality of victims and other necessary
parties, including how the institution will…
-
[Name of institution] recognizes the often-sensitive nature of
sexual assault, domestic violence, dating violence, and
stalking incidents. We are committed to protecting the privacy
of any individual who makes a report. Different officials and
personnel are, however, able to offer varying levels of privacy
protection to victims.
-
Reports made to [name of institution] officials will be kept
confidential, and identifying information about the victim shall
not be made public
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Challenges to Implementation
The reluctant complainant
• If Complainant requests confidentiality, conduct what
review you can and is appropriate to the
circumstances:
-
Were there witnesses?
-
Are you aware of other complaints involving the Respondent?
-
Can you proceed in a fair manner if Complainant’s identity is not
revealed?
 Significant constraints if Complainant insists on confidentiality and there
are no witnesses, etc., but always focus on what you can do. OCR will
likely respond positively to good faith efforts and actions.
 Amnesty?
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New Policy Requirements
Written Notification
• A statement that the institution will provide
written notification to students and employees
about existing counseling, health, mental health,
victim advocacy, legal assistance, visa and
immigration assistance, and other services
available for victims, both within the institution
and in the community; (applies for both on & off
campus incidents)
- Any student or employee who reports an
incident of sexual assault, domestic violence,
dating violence, or stalking, whether the
incident occurred on or off campus, shall
receive a written explanation of their options
and rights as provided for under this policy.
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New Policy Requirements
• SAMPLE WRITTEN STATEMENT
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Challenges to Implementation
• Investigator skillset
• Timelines
• Concurrent criminal and IHE investigations
• Employees are often the forgotten or
under- attended population
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New Policy Requirements
Explanation of Disciplinary Action
• An explanation of the procedures for
institutional disciplinary action in cases of
alleged dating violence, domestic violence,
sexual assault, or stalking, as required by
paragraph (k) of this section; and….
- Must state that both parties are entitled to
same opportunities to have others present
during disciplinary proceedings
 “including the opportunity to be
accompanied to any related meeting or
proceeding by an advisor of their choice”
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New Policy Requirements
Explanation of Disciplinary Action
Question: Does that include legal
counsel?
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New Policy Requirements
Explanation of Disciplinary Action
• Must include statements that:
 covered disciplinary proceedings will provide a
prompt, fair and impartial investigation and
resolution
 such proceedings will be conducted by
officials who receive annual training on issues
related to domestic violence, dating violence,
sexual assault, and stalking and how to
conduct an investigation and hearing process
that “protects the safety of victims and
promotes accountability”
© Margolis Healy & Associates, LLC
New Policy Requirements
Educational Requirements
• Description of education programs to
promote awareness of offenses of DV,
DV, SA and stalking
• Requirement includes several specific
mandates of what must be covered in:
 “primary prevention and awareness
programs” for incoming students and
new employees
 “ongoing prevention and awareness
campaigns for students and faculty”
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New Policy Requirements
Educational Requirements
• Regarding “safe and positive options for
bystander intervention that may be carried
out by an individual to prevent harm or
intervene when there is a risk of” a
covered offense against another person
• Regarding “information on risk reduction
to recognize warning signs of abusive
behavior and how to avoid potential
attacks”
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Rule Making
• Term – Domestic Violence: local variations esp.
where multi-campus systems are involved.
• Term – Cohabitating: Various housing
arrangements… does this include roommates?
• Term – Dating violence: Does the IHE
investigate a claim of dating relationship? If so
what benchmarks apply to the criteria used
(length, type, frequency, etc.)? Investigator’s
judgment (similar to hate crime)?
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Rule Making
• Stalking vs. Intimidation – Hierarchy, logging
(lesser included).
• Oodles of electronic variations on the theme.
Operationalized by Clery geographies
(presently requires cyber-intimidation while
victim is in Clery geography)
• And it is all the more confused when the log
portions of Clery are included.
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Rule Making
• How to judge the sufficiency of…
- On-going
- Campaign
- Awareness Programming
- Primary Prevention
- Bystander intervention
- Training (afford, track or require
participation)… if so what about casual
students
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Rule Making
• Programs to prevent – comprehensive ed. and
training to prevent violence incorporating diverse
approaches that are culturally relevant, inclusive,
sustainable, responsive and consider risk and
protective factors.
• Primary prevention – programming, initiatives and
strategies intended to stop DV, DV, SA, &
Stalking before it happens through positive
healthy behaviors and beliefs. Ex.: efforts to
change social norms, promote healthy
relationships, change bystander inaction, etc.
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Rule Making
• Awareness programs – programs, campaigns
initiatives increasing knowledge of SA, DV,
DV & Stalking. May be community wide, or
targeted. Ex.: theme months, speak out
campaigns, etc.
• Bystander intervention – Safe and positive
options preventing harm where risk of SA,
DV, DV & Stalking exists. Includes training of
recognition, overcoming barriers, identifying
safe options, and taking action.
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Rule Making
• Risk Reduction – Mitigating factors that
increase the likelihood. Addresses
institutional or cultural conditions facilitating
risk. Ex.: escorts, bystander intervention,
communication systems, etc.
• Ongoing awareness and prevention –
sustained over time from diverse sources, and
various strategies. Ex.: information delivery,
involvement opportunities, etc.
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What to do
• Engage your community
- Students
- Faculty
- Staff
- Leadership
- Local partners
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What to do
• Make a plan with measurable action
items:
- Task Force
 Include External Partners (SAO, Sex Crime
Task Force, local PD)
-
Consider external policy audit
Surveys
Programming Inventory
Training and education inventory
© Margolis Healy & Associates, LLC
Questions?
Jeffrey J. Nolan, Esq.
jnolan@dinse.com
www.dinse.com
Steven J. Healy
shealy@margolishealy.com
www.margolishealy.com
© Margolis Healy & Associates, LLC