Title IX - Focusing on the Important SCCLEA

Focusing on the Important --
Title IX Imperatives

Steven J. Healy
Gary J. Margolis

Agenda

• Title IX & the DCL 101
• What Really Matters in the DCL
• What Your Institution Should Do Today
• Q&A

© Margolis Healy & Associates, LLC
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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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Sexual Harassment
Definition
• 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.
 Can include touching of a sexual nature; making
sexual comments, jokes, or gestures; writing
graffiti or displaying or distributing sexually
explicit drawings, pictures, or written materials;
calling students sexually charged names;
spreading sexual rumors; rating students on
sexual activity or performance; or
circulating, showing, or creating e‐mails or Web
sites of a sexual nature. (Oct 2010 DCL on
Bullying)
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Sexual Harassment
Definition
• 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
Definition

• 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 protects students from sexual
harassment in an institution’s education
programs and activities, including:
- All
academic, educational, extracurricular, athletic, a
nd other programs of the institution
- On-campus, off-campus, in transit, sponsored at
other locations, etc.

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Scope of Coverage

• Institutions may have obligation to respond
to student-on-student sexual harassment that
initially occurred off campus and outside
institution’s education program or activity
- If student files a complaint re off-campus
conduct, institution “must process the complaint in
accordance with its established procedures.”
- Should consider and address on-campus
continuing effects of off-campus sexual harassment
(e.g., on-campus retaliation by alleged perpetrator
or friends)
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Scope of Coverage
• Title IX protects third parties from sexual
harassment or violence in an institution’s
education programs and activities
- E.g.: Title IX protects a high school student
participating in a college’s recruitment program, a
visiting student athlete, and a visitor in a school’s on-
campus residence hall

• Title IX prohibits
discrimination/harassment by faculty, staff
• Title IX protects employees from sexual
harassment
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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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Bottom Line

• If your institution knows or reasonably should
know about sexual harassment that creates a
hostile environment, Title IX requires
immediate action to eliminate the
harassment, prevent its recurrence, and
address its effects.
- Regardless of whether a harassed
student, his or her parent, or a third party files
a complaint

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What Really Matters
in the Dear Colleague Letter

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What Really Matters
• Publish a notice of nondiscrimination
- Must state that you don’t discriminate on the basis of
sex in your education programs and activities
- Should include the name or title, office
address, telephone number, and e-mail address for
your Title IX coordinator
- Statement must be widely distributed to all current
and prospective students and employees
- OCR recommends that your nondiscrimination policy
state that prohibited sex discrimination covers sexual
harassment, including sexual violence
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What Really Matters

• Designate Title IX Coordinator
- Notify campus community of the name or title and
contact information of the person designated to
coordinate Title IX activities
- Responsibilities include overseeing all Title IX
complaints and identifying and addressing any
patterns or systemic problems that arise during the
review of such complaints.
- The Title IX coordinators should not have other job
responsibilities that may create a conflict of interest.
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What Really Matters

• Adopt and publish grievance procedures that
promote prompt, thorough, impartial, and equitable
resolution of complaints
- Notice of the grievance procedures
- Adequate, Reliable, and Impartial Investigation of
Complaints
- Designated and Reasonably Prompt Time Frames
- Notice of Outcome

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What Really Matters
• Conduct adequate, reliable, and impartial
investigation of complaints
- Police investigations or reports are not determinative
of whether sexual harassment or violence violates
Title IX
- Criminal investigations do not relieve you of your
Title IX duty to resolve complaints promptly and
equitably
- You should not wait for the conclusion of a criminal
investigation or criminal proceeding to begin their
own Title IX investigation
 If appropriate, you must take immediate steps to
protect the student in the educational setting.
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Preparing to Investigate

• Hire knowledgeable and experienced
investigators, or develop them from existing
staff
• Ensure investigators understand their role as a
neutral party, not advocates
• Ensure investigators have regular contact with
the Title IX Coordinator


Preparing to Investigate
• Impartial investigator
- No bias or conflict of interest
- Consider giving the parties an opportunity to object to the
investigator
- Use a different investigator if you feel there is a possible
or actual conflict
- Per OCR, should not be Title IX Coordinator or
college/university attorney, which could present a conflict
of interest
- Per OCR, should have adequate training or knowledge
regarding sexual violence
- Per OCR, do not rely on police or insurance
investigations. The institution needs to conduct its own
review

Tools for Effective
Investigations
I. Recognize impact of trauma on investigations
• There is no “normal” victim response
• Most complainants/victims/survivors do not physically resist
• Most complainants/victims/survivors who report do so after
some delay
• Most complainants/victims/survivors have difficulty
remembering all the details or sequence of the sexual assault
• Complainants/victims/survivors experience trauma reactions
on an ongoing basis after the assault
• We can use expert witnesses (through training) to explain
impact of trauma


Tools for Effective
Investigations
II. Understand Reluctance to Report
• Complainants/victims/survivors first impression
matters…
• Build rapport/trust, reassure…
• Work with and maintain relationships with advocates
• The recipe for a bad investigation is to form a hypothesis
and try to prove it (my “gut” tells me…)
• The strategy for a good investigation is to examine all the
evidence and let it take you to the truth
• Approach a case believing that “something”
occurred, victims are sensitive to this

Tools for Effective
Investigations
III. Corroboration of details is essential
• Physical evidence: exam, photos, digital
forensics/social media/hidden recordings, etc.
• Witness accounts from before and after assault
• Outcry witnesses (person who first hears an allegation)
• Stalking or abuse behavior
• Documentation of sensory and peripheral details
from the victim’s perspective - What did “no” look like?
What did fear feel like?
• Follow up to see the effects of ongoing trauma in
victim’s life


Tools for Effective
Investigations
IV. Focus on Respondent’s behavior, not
Complainant’s
• Investigate pre and post assault behavior
• “He said, she said” becomes “He said, they said”
• Why did s/he choose/target the
complainant/victim/survivor?
• How did s/he manipulate the environment and
circumstances to get the victim into a position of
vulnerability?
- Role of alcohol or drugs
- Chosen location for the assault
- Grooming behavior
- Contrived circumstances

Tools for Effective
Investigations
V. Gather information about the Respondent
• History/background
• Social circles for other complainants and interrelated
crimes
• Social media, pre and post assault messages & calls
• Develop interview strategy (tie in offender
behavior, background, sexual violence awareness
prevention)


Tools for Effective
Investigations
VI. Thorough Documentation

• Goal of investigation is to be objective and thorough
• While every case is different, investigations must be
consistent and thorough (Policy)
• Detailed case documentation/report writing
• Supervisory review of all cases
• Multi-disciplinary case audits, after action review
• Seek expert guidance/testimony when uncertain
• Pursue Justice & Fairness…

Tools for Effective
Investigations

• Ensure interim measures are effective
• Keep relevant administrators (as determined
by the investigator) apprised of investigation
progress
• Consult with Title IX Coordinator and Legal
Counsel
• Consult with media relations, as appropriate


What Really Matters --
Training

• Train employees with authority to address harassment, or
who are likely to witness it or receive reports

• Train other employees to report harassment to appropriate
institutional officials

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Title IX Coordinator

• Title IX coordinators should receive training on the
following:
- What constitutes sexual harassment, including sexual
violence;
- Institution’s obligations to address allegations and its
grievance procedures;
- How to conduct Title IX investigations; and,
- Link between alcohol and drugs and sexual
harassment and violence
 Best practices to address the link
- See Xavier Resolution Letter
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Title IX Training
• Anyone involved in processing, investigating, or
resolving complaints must have training and/or
experience:
- Institution’s obligations to address allegations;
- What constitutes sexual harassment, including sexual
violence;
- The institution’s grievance procedures;
- How to conduct Title IX investigations; and,
- Link between alcohol and drugs and sexual harassment
and violence
 Best practices to address the link

- Should include applicable confidentiality requirements
• Should be targeted, comprehensive training
program
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Title IX Training
• Institution’s law enforcement unit and its
employees should receive training:
- Title IX grievance procedures and any other
procedures used for investigating reports of sexual
violence.
• Should also receive copies of your Title IX
policies
• Should be a part of your regular in-service
training

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Title IX Training

• Employees who regularly interact with students
should receive training on how to recognize and
appropriately address allegations of sexual
harassment or violence

- This would be general awareness training

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Education & Prevention

• Undertake education and prevention
efforts
“OCR recommends that all schools
implement preventive education programs
and make victim resources, including
comprehensive victim services, available.”
(Page 14 - 15, DCL)

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Education & Prevention

• Include:
- What constitutes sexual harassment and
sexual violence;
- Institution’s policies and disciplinary
procedures;
- Consequences of violating these policies;
- Encouraging students to report incidents of
sexual violence to the appropriate school and
law enforcement authorities.

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Sexual Violence
Materials
• Develop specific materials on sexual
violence that include policies, your
rules, and resources for
students, faculty, coaches, and
administrators.
• Include this information in employee
handbook and any handbooks that student
athletes and members of student activity
groups receive. (Page 15, DCL)
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Sexual Violence
Materials
• Materials should include:
- Where and to whom students should go if they
are victims of sexual violence. (also Clery)
- What to do if they learn of an incident of sexual
violence. (also Clery)
- Contact for counseling and victim services on
and off campus (also Clery)
- How to file a complaint (also Clery)
- How to contact the Title IX coordinator

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OCR Enforcement
Process
• Practically, resolutions are negotiated with
recipients, who take “voluntary remedial actions”
- Policy issues: policy deficiencies are remedied
- Example individual complaint remedies:
 Providing changes in class and residential
arrangements
 Providing counseling, academic, medical and other
supports and accommodations
 Providing broad-based training for
students, employees
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Civil Remedies

• Title IX nondiscrimination obligations may be
enforced in court by individual or class
actions
• “deliberate indifference” standard applies
• Compensatory damages and injunctive relief
available
• Plaintiff’s attorney’s fees and costs available
• State nondiscrimination statutes may provide
additional remedies, different liability standards
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What Really Matters

• Understand Title IX requirements and DCL
• Publish Grievance Procedures
• Designate a Title IX Coordinator
• Conduct adequate, reliable, and impartial
investigations
• Train employees according to their role in the
Title IX process
• Undertake Proactive Education and Prevention
measures
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OCR Title IX Resources
• April 2011 OCR Dear Colleague Letter:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

• OCR 2001 Revised Sexual Harassment Guidance:
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

• 2010 Dear Colleague letter on Harassment and Bullying:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf

• MargolisHealy Gender and Sexual Violence Resource Center
http://www.margolis-
healy.com/index.php/resources/gender_and_sexual_violence/

• American College Health Association http://www.acha.org/Topics/violence.cfm

• National Sexual Violence Resource Center http://www.nsvrc.org/

• Statewide Sexual Assaults Coalitions

• RAINN http://RAINN.org

• Security on Campus www.securityoncampus.org
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