Title IX, Meet Clery – Clery, Meet Title
IX From Compliance to Prevention
Steven J. Healy
Margolis Healy & Associates
The Landscape
A sea change –
• Renewed focus on the issues of sexual
and gender violence
• Activism by students, faculty, others
• Survivor courage
• Evolving legislation (Clery & TIX)
• REALITY – The world is FLAT
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No – this is a TSUNAMI!
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The Landscape
• The Clery Act: security policies and statistics
• October 26, 2010 DCL: Focus on bullying
• April 4, 2011 DCL: policies and procedures
on sexual harassment and sexual violence
• Campus SaVE Act: adds 3rd category of
crimes; codifies DCL
• April 24, 2013 DCL: Focus on retaliation
• Voluntary Resolution Agreements: NOT
binding but part of evolving framework
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Resources
•
OCR 2001 Revised Sexual Harassment Guidance:
www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf
•
2010 Dear Colleague letter on Harassment and Bullying:
www2.ed.gov/about/offices/list/ocr/letters/colleague201010.pdf
•
April 2011 OCR Dear Colleague Letter:
www2.ed.gov/about/offices/list/ocr/letters/colleague201104.pdf
•
April 2013 OCR Dear Colleague Letter on Retaliation:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague201304.html
•
2011 Handbook for Campus Safety and Security Reporting
http://www2.ed.gov/admins/lead/safety/handbook.pdf
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Title IX
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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•
•
•
•
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
- Prompt and equitable
- Notice
- Adequate, reliable, and impartial investigation of
complaints
- Designated and reasonably prompt time frames
- Notice of outcome
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Overview of Mandates
• Education and Prevention
• Remedies and Enforcement
• Training
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The Prevention Lens
COMPLIANCE IS IMPORTANT, BUT
PREVENTION AND RESPONSE IS
MORE IMPORTANT
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Sexual Harassment
Defined
• Unwelcome conduct of a sexual nature
-
includes unwelcome sexual advances, requests for sexual
favors, and other verbal, nonverbal, or physical conduct of a
sexual nature, including sexual violence.
• Student-to-student harassment:
-
creates hostile environment if conduct is sufficiently serious
that it interferes with or limits a student’s ability to participate
in or benefit from the school’s program.
• The more severe the conduct, the less need
there is to show a repetitive series of incidents to
prove hostile environment, particularly if the
harassment is physical (e.g. rape=hostile
environment)
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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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DCL Focus Points
• Interim measures
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DCL Focus Points
• Who is a “responsible employee”?
- What is the benefit of a responsible
employee not meeting their obligation?
- What is the cost?
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DCL Focus Points
• Reluctant complainant – balance
institutional need for safety with requests
for confidentiality
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DCL Focus Points
• 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. Increased training
efforts would be one possible response in this
situation.
• OCR will likely respond positively to good faith efforts
and actions.
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DCL Focus Points
• Encouraging complaints by granting
“amnesty” for other violations
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DCL Focus Points
• Equity for both parties
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DCL Focus Points
• The 60 day review
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Points of Focus from the DCL
• Concurrent criminal and College
investigations
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Campus SaVE Act
• Part of VAWA Reauthorization Act
• Amends HEA “to improve education and
prevention related to campus sexual
violence, domestic violence, dating violence,
and stalking”
• Codifies much of 2011 OCR DCL
• Effective March 2014 (good faith effort
NOW)
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Campus SaVE
Definitions
• “Domestic violence” means crime of
violence committed by spouse,
cohabitant, parent of victim’s child, or
similarly situated person
− as relationships/protections are
defined under state domestic or
family violence laws
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Campus SaVE
Definitions
• “Dating violence” means violence committed
by a person
- Who is or has been in a social relationship of
a romantic or intimate nature with the victim
• Where the existence of such relationship is
determined based on consideration of:
- Length and type of relationship and
- Frequency of interaction between persons
involved
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Campus SaVE
Definitions
• “Stalking” means engaging in a course
of conduct directed at a specific person
that would cause a reasonable person
to:
- Fear for his or her safety or the safety
of others; or
- Suffer substantial emotional distress
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SaVE Requirements
• Develop and distribute in its Annual
Security Report a statement of policy
regarding:
- Your programs to prevent domestic
violence, dating violence, sexual assault,
or stalking;
- Procedures you’ll follow once an incident
of domestic violence, dating violence,
sexual assault, or stalking has been
reported
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SaVE Requirements
• Adopt and publish in ASR, policy statements
re:
- victim support resources
- confidentiality
- sanctions
- interim protective measures
- evidence preservation
- reporting procedures
- options for notifying law enforcement
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Procedural
Requirements
• Several disciplinary process procedural
protections
• Some adapted from April 2011 DCL
• Applicable to cases involving student AND
employee complainants
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Procedural
Requirements
• 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”
• Does that include legal counsel?
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Anti-Retaliation
Provision
No officer, employee, or agent of an IHE
“shall retaliate, intimidate, threaten, coerce,
or otherwise discriminate against any
individual for exercising their rights or
responsibilities under any provision of this
subsection”
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Educational
Requirements
• Campus SaVE requires 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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Campus SaVE
Challenges
• Requires your IMMEDIATE attention
• Collaboration & Coordination are KEY
• Programming Resources
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SaVE & TIX Challenges
• No such thing as “best practices”
- Each institution is unique
- Institutional values
- Policies and procedures
- Resources
- Personnel
- Public vs. Private
- Culture
- Challenges
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Evolving Practices
• Independent Title IX Coordinator
• Coordinated response team
• Delineation of confidential resources vs.
reporting options
• Integration of reporting responsibilities:
- Responsible employee
- Campus Security Authority
- Mandatory Reporter of Suspected Child Abuse
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Evolving Practices
• Centralized reporting and review process
• Procedures for resolution that recognize:
- Complainant autonomy/agency
- Fundamental fairness
- Remedies-based options
- Sanctions-based options
• Communication and transparency to tend to the
individual and community
• Consistent and on-going training
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What to Do?
• Identify your team
• Assess your climate
• Engage your
community
- Students
• Assess your policies
-
Faculty
• Assess your structure
-
Staff
-
Leadership
-
Local partners
• Train your FIRST
responders
• Review prior cases
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Next Steps
• Make a plan with measurable action items:
- Task Force
- Consider external policy audit
- Constituency survey
- Programming Inventory
- Training and education schedule
Borrowed in part from G. Smith & Leslie Gomez, PepperHamilton, LLP
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