Advocating for Campus Survivors
Using Title IX:
A guide for advocates and attorneys
Amanda Walsh, Esq.
Victim Rights Law Center
© 2014
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WHO IS THE VRLC?
VRLC Boston Office
115 Broad Street, 3rd Floor
Boston, MA 02110
Email: TA@victimrights.org
(617) 399-6720
877-758-8132
VRLC Portland Office
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Portland, OR 97204
(503) 274-5477
Email: TA@victimrights.org
Web: www.victimrights.org
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© 2013 Victim Rights Law Center. All rights reserved. No part of this document may be transmitted, reproduced, distributed, or adapted without permission.
The VRLC as a conference trainer will not be
providing legal advice and encourages all
schools to direct legal questions to their
institution's legal counsel.
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Training Overview
• Title IX Introduction
• Overview: Reporting protocols and
confidential reporting on campus
• Advocating for campus sexual assault
survivors:
– Negotiating with the school
– Advocacy during the disciplinary process
– Filing an OCR Complaint
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Getting to know
the language
ƒ Perpetrator/assailant and victim/survivor
ƒ Accused and accuser
ƒ Respondent and Complainant
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Part 1:
Introduction to Title IX
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Title IX Overview
Who is required to comply with Title IX?
– All public & private educational institutions that receive federal
funds.
• What is receive federal funds under Title IX?
– Qualifying federal financial assistance can be in the form of:
an award or grant of money; use or rent of federal land or
property; and federal training.
– Federal financial assistance can also be received indirectly
» Ex: Accepting students who receive federal financial aid
What does Title IX say?
– General mandate: Prohibits recipients of federal financial assistance
from discriminating on the basis of sex in education programs or
activities. Sexual harassment of students, which includes acts of
sexual violence, is a form of sex discrimination prohibited by Title
IX.
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Gender-based
Harassment
Sexual
Harassment
Sexual
Violence
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Title IX Overview
How does Title IX protect students?
– Protects students in connection with all the academic, educational,
extracurricular, athletic, and other programs of the school.
– Also protects students who may have been sexually harassed off
school grounds, outside a school’s education program or activity, if the
harasser was a fellow student.
Advocacy Tip: Remember that Title IX applies to K-12 schools, as well as
colleges. Keep this in mind when working with elementary, middle, and high
school survivors.
© 2013 Victim Rights Law Center. All rights reserved. No part of this document may be transmitted, reproduced, distributed, or adapted without permission.
What is required of schools even before
a report of sexual violence?
ƒ Publish a notice of non-discrimination.
ƒ Designate an employee to coordinate Title IX
compliance.
ƒ (4) Responsibilities:
ƒ Disseminate notice of nondiscrimination
ƒ Identify and address systemic patterns of discrimination
ƒ Educate parties about the policy and answer procedural
questions about the logistics of the disciplinary process
ƒ Oversee the investigation of a complaint
ƒ Adopt and publish grievance procedures.
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A school receives a report of
sexual violence…Now what?
The school must inform the survivor of their options,
including:
–
–
–
–
–
Medical treatment
Counseling & mental health services*
Disciplinary complaint
Criminal complaint/Police report.
Options to avoid contact with perpetrator and to change living
and academic situations*
*Also required under Clery’s Victims’ Bill of Rights
Advocacy Tip: One page resource sheets for survivors are helpful tools in
helping you understand and advocate for a survivors Title IX rights.
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A school receives a report of
sexual violence…Now what?
“A school must promptly investigate to determine what
occurred and then take appropriate steps to resolve the
situation.” - DCL pg. 4
– Inquiry must be prompt, thorough, and impartial.
Advocacy Tip: When working with campus survivors remind them that Title
IX prohibits retaliation by the accused student or other third parties. The
survivor can always ask the school what responsive action may be taken if
retaliation occurs.
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Title IX & the
Grievance Process: FAQs
How long should a grievance process be?
– The process should be “reasonably prompt” and the DCL and FAQs offers 60
days as a general guideline for the length of a typical investigation.
What is the standard of proof?
– Preponderance of the evidence. (“It is more likely than not that the accused
student is ‘responsible’ for the alleged sexual assault.”)
Can a school use both formal and informal processes?
– Yes, but mediation should not be used to resolve a sexual assault complaint.
Also, the parties must be notified that they have the right to end the informal
process at any time and begin the formal process.
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Title IX & Law Enforcement:
FAQs
Is it sufficient that the local police investigated the sexual
assault?
– No, the school’s Title IX investigation is different from any law enforcement investigation,
and a law enforcement investigation does not relieve the school of its independent Title IX
obligation to conduct an “adequate, reliable and impartial investigation of complaints.”
Does Title IX require schools to notify local police if a sexual
assault is reported?
– No. Generally, the decision to file a criminal complaint will be up to the survivor.
“Title IX does not require a school to report alleged incidents of sexual violence to
law enforcement, but a school may have reporting obligations under state, local, or
other federal laws.” (FAQs page 27)
If the police determine that there is insufficient evidence to
proceed criminally, can a school still find an accused student
“responsible”?
– There could be sexual harassment under Title IX even if insufficient evidence of a
criminal violation. This is due to the lower burden of proof, preponderance of the
evidence.
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Title IX & Law Enforcement
FAQs
Local police asked the client/Survivor’s school to wait on
the Title IX investigation until they completed theirs. Is
that ok?
– Yes, but only for 7-10 days. After that, a school must
start its Title IX investigation.
Our local police handle these cases really poorly. Is it okay
for a school to discourage victims from filing a police
report?
– No, a school cannot dissuade a victim from filing a
criminal complaint.
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Advocacy Tip:
Student survivors disclose and report their
experiences to a variety of individuals. Many
times in school setting these are teachers,
professors, guidance counselors, etc. Title IX
has specific reporting obligations for school
officials and employees. Helping survivors
understand the confidentiality implications of
who they report to can help them protect their
privacy and confidentiality as they make
decisions about disclosing the assault.
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Understanding Victim's Confidentiality
and its Limits Under Title IX
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Group One:
Responsible Employees
One
An Employee who
has the authority
to take action to
redress the
harassment or
Two
An employee who
has the duty to
report to the
appropriate school
officials sexual
violence or any other
misconduct by
students to the Title
IX coordinator or
other appropriate
school designee
Three
An individual who a
student could
reasonably believe
has this authority or
duty
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Group Two:
Campus Employees with Privilege
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•
Group Three:
Campus Employees with
“People who provide Confidentiality
assistance to students who
experience sexual violence
and are not professional or
pastoral counselors”
– “all individuals who work
or volunteer in on-campus
sexual assault centers,
– victim advocacy offices,
– women’s centers,
– health centers,
– including front desk staff
and students.”
**Non-licensed persons are
STRONGLY ENCOURAGED,
but not required, to be
designated as individuals
who are exempt from
responsible employee
reporting duties. **
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Part 2:
Using Title IX Rights to Advocate for
Survivors
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HOW CAN YOU ADVOCATE
FOR A CAMPUS SURVIVOR?
‰Negotiate with the college or university
‰Provide advocacy and support
throughout the disciplinary process
‰File an Office for Civil Rights complaint
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© 2013 Victim Rights Law Center. All rights reserved. No part of this document may be transmitted, reproduced, distributed, or adapted without permission.
Negotiate with the School
Step 1: Discuss with client desired services or
assistance needed from the school.
Step 2: With the help of the client, identify people
on campus that are in a position to provide services
and assistance.
Step 3: Contact school to determine willingness to
work with victim.
Step 4: Make requests for services or assistance in
writing to the school.
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Negotiate with the School:
Services and Assistance on Campus
What can you request on behalf of a survivor?
– Safety measures
– Housing changes
– Campus no contact order
– Academic assistance
Advocacy Tip: Be Creative! Title IX provides a floor, not a ceiling.
The facts and circumstances surrounding each case is different.
Survivors are in the best position to tell the school what will make
them feel safe.
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How can you advocate
for a campus survivor?
9Negotiate with the college or university
‰Provide advocacy and support throughout the
disciplinary process
‰File an Office for Civil Rights complaint
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Advocating During
a Disciplinary Process
• Assist a survivor draft his/her initial statement for
the disciplinary process.
ƒ Focus the statement on the details of the sexual
assault(s), rather than the events leading up to or
following the assault.
ƒ Don’t “cross-examine” yourself!
ƒ Be up front about “bad facts”
Advocacy Tip: A disciplinary process can be emotionally taxing on survivors.
Survivors have a choice as to whether they pursue the disciplinary process.
Helping a survivor weigh the potential impact of the process on their academic,
social, and extracurricular life against their personal goals can assist a survivor in
making a decision that is best for them.
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Advocating During
a Disciplinary Process
Help victim prepare for disciplinary hearing.
ƒ Survivors have the right to be afforded similar and
timely access to any information the accused is
given, that will be used at the hearing.
ƒ If a school allows the survivor or the accused to
have an attorney participate in a disciplinary
proceeding, then they both must have the right to
have an attorney participate.
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Advocating During
a Disciplinary Process
Support victim during a hearing/fact finding process:
ƒ Throughout a school’s Title IX investigation, including at
any hearing, survivors have the right to an equal
opportunity to present relevant witnesses and other
evidence.
ƒ Survivors have the right to a grievance procedure
facilitated by an administrator with training or experience
in your campus process.
ƒ Schools are strongly discouraged from allowing the
accused to cross-examine or directly question you during
the disciplinary process.
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Advocating During a Disciplinary
Process
Support victim after a hearing/fact finding process:
ƒ For any disciplinary proceeding, survivors have the right to
have that proceeding documented, which may include
written findings of facts, transcripts, or audio recordings,
depending on the campus process.
ƒ Survivors have the right to be notified, in writing, about the
outcome of the complaint – whether or not the accused was
found responsible. The right to notice of the outcome only
refers to information about the findings of responsibility and
not disciplinary sanctions, unless otherwise noted by the
school’s conduct or disciplinary policy.
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Common Disciplinary
Process Problems & T9 Violations
• Accused allowed to directly question the Accuser
• Title IX Coordinator fails to publicize his/her
contact information widely
• School waits for the outcome of a criminal case
• No transcript or record kept of all hearings or
fact-finding interviews
• Lack of adherence to written outcomes
• Unfair appellate process
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How can you advocate
for a campus survivor?
9Negotiate with the college or university
9Provide advocacy and support throughout the
disciplinary process
‰File an Office for Civil Rights complaint
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Can You File an OCR Complaint?
ƒ Does the school receive federal funds?
ƒ Was the last act of discrimination less than 180
days ago?
ƒ Does this type of discrimination fall within Title
IX?
ƒ Bullying vs. sexual harassment
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Strategic Considerations
When Filing an OCR Complaint
• If eligible, is this the right solution for client?
9There is a breakdown in communication or trust
between the survivor and the school.
9Survivor wants additional training for the school.
9The changes the survivor is seeking are institutional
or systemic.
9Survivor understands that the complaint is not
likely to result in immediate change and the
investigation process is lengthy.
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How to file an OCR Complaint?
1. Contact your regional Office of Civil Rights
2. Submit written complaint
3. Victim signs a consent form
– Freedom of Information Act request
– Advise student that his/her name will be released to
the school
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Drafting an OCR Complaint
• Limit the description of facts regarding the sexual
assault.
– Helps to avoid inconsistencies if the survivor has an
ongoing criminal process or decides to report to law
enforcement at a later date. (Note: Do not need a
police report to file an OCR complaint)
– Privacy – Not necessary for the complaint, so no
reason to share the details again.
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Drafting an OCR Complaint
ƒ Focus on school’s action of non-compliance with
Title IX.
ƒ Include a procedural history/timeline of the case.
ƒ Limit the number of times Complainant’s name is
used.
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What happens after I file?
ƒ No action - you file a complaint and no
investigation is opened
ƒ If OCR opens an investigation:
– OCR will contact the Complainant and the school
– Interview victim
– Gather documents - “data request”
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Complaint Investigation
• Following data requests and interviews, a
determination is made about whether or not
there was a violation of Title IX
• Resolution letter issued showing violations and
mandating corrective behavior
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Additional Helpful Tips
ƒ Provide additional relevant documentation when
filing the complaint
– E-mail correspondence, school’s policy, website
screenshots, etc.
ƒ Request an initial meeting with the staff
attorney/investigator
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How can you advocate
for a campus survivor?
9Negotiate with the college or university
9Provide advocacy and support throughout the
disciplinary process
9File an Office for Civil Rights complaint
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Resources
January 2001, Office for Civil Rights Guidance, available at:
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf
April 2011, Dear Colleague letter, available at:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
May 9, 3013, University of Montana Resolution Findings Letter available at:
http://www.justice.gov/opa/documents/um-ltr-findings.pdf
April 29, 2014, Questions and Answers on Title IX and Sexual Violence available at:
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
Nancy Chi Cantalupo, Campus Violence: Understanding the Extraordinary
Through the Ordinary, 35 J.C. & U.L. 613-690 (2009).
Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge
Avoidance, and the Persistent Problem of Campus Peer Sexual Assault, 43 Loy. U. Chi. L.J.
205 (2011).
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THANK YOU!
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