4/25/2012

Jeffrey Powell
Candidate for
Assistant Dean for Judicial Affairs

The Dear
Colleague
Letter of
April 4, 2011

H...
4/25/2012

Every school where I’ve worked or studied has won
an NCAA national championship while I was there.
Oklahoma – F...
4/25/2012

Title IX prohibits Sexual Harassment of:

What’s happening in Washington?
 General concerns among democrats ab...
4/25/2012

Sexual Violence
 Sexual violence refers to physical sexual acts perpetrated

against a person’s will or where ...
4/25/2012

What is the Dear Colleague Letter?
Three alternatives
1. A “best practices” document, guiding institutional
res...
4/25/2012

Notice of Harassment
University violates Title IX regulations if the
school “has notice” of a sexually hostile
...
4/25/2012

SRC Rules changed due to DCL
Newly listed rights in the UND
Code of Student Life

There are a lot of things UND...
4/25/2012

There are a lot of things UND has done, for some time, well:

What is the Dear Colleague Letter?
1. A “best pra...
4/25/2012

So, what are the effects?
1. National attention to the release of the Letter,

including by folks in my profess...
4/25/2012

Duty to Investigate
 Institution has a duty to conduct its own

investigation.

 Should inform and obtain con...
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Transcript of "Jeffrey powell print DCL 25-April-2012"

  1. 1. 4/25/2012 Jeffrey Powell Candidate for Assistant Dean for Judicial Affairs The Dear Colleague Letter of April 4, 2011 How must institutions respond? April 25, 2012 Jeffrey Powell – University of North Dakota – April 25, 2012 My favorite icebreaker is “two truths and a lie.” Peanut Butter M&Ms are my favorite sold-instores snack. I spent a night in a Russian police station. Every school where I’ve worked or studied has won an NCAA national championship while I was there. My desk is always neat and tidy. I enjoy teaching in addition to my “day” job. 1
  2. 2. 4/25/2012 Every school where I’ve worked or studied has won an NCAA national championship while I was there. Oklahoma – Football * Tennessee – WBB Connecticut – WBB Colorado @ Boulder – Skiing Northern Colorado – Football * Maine – MIH First, a little history and perspective  Title IX in place for more than 35 years.  Title IX is generally applied to, and discussed in terms of, athletics.  There is a 2001 document from ED about the institutional responses to Sexual Harassment. Every school where I’ve worked or studied has won an NCAA national championship while I was there. Aims Community College University of North Dakota Title IX Act  Title IX of the Educational Amendments of 1972 (Title IX), 20 U.S.C. §1681 et seq., and its implementing regulations, 34 C.F.R. Part 106  Prohibits discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance.  Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. 2
  3. 3. 4/25/2012 Title IX prohibits Sexual Harassment of: What’s happening in Washington?  General concerns among democrats about Bush  Student by Faculty Member  Student by Student  Faculty Member by Student  Student by a third party  Student by any university employee Other laws protect employees from sexual harassment/discrimination administration management of national educational priorities.  The election of Mr. Obama and the beginning of his administration in January, 2009, installs cabinet and subcabinet leadership in the Department of Education who believe governmental rules should be changed. March 2011  Members of Yale University Delta Kappa Epsilon fraternity in a quad, chanting, “No means yes! Yes means anal!”  A voiced public opinion arises that Yale administration’s inadequately responds to both this and other incidents of sexual harassment and assault. 3
  4. 4. 4/25/2012 Sexual Violence  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. …and so, the Letter is announced in April, 2011, by Vice President Biden  A number of different acts fall into the category of sexual The Letter cites these statistics: The Letter cites these statistics:  in 2009, college campuses reported nearly 3,300 forcible sex offenses as defined by the Clery Act  an estimated 20% of women and 6.1% of men are victims of completed or attempted sexual assault during college • violence against women who are intellectually vulnerable is disproportionately higher • victims of sexual assault are more likely to suffer academically and from depression, post-traumatic stress disorder, to abuse alcohol and drugs, and to contemplate suicide. violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX.  in 2009, college campuses reported nearly 3,300 forcible sex offenses as defined by the Clery Act  an estimated 20% of women and 6.1% of men are victims of completed or attempted sexual assault during college • There are some who contest these statistics as exaggerated. The reported statistic for the rate-ofreported rapes for the Detroit metro area in 2009 was 33 in 100,000 citizens. 4
  5. 5. 4/25/2012 What is the Dear Colleague Letter? Three alternatives 1. A “best practices” document, guiding institutional response. 2. A yardstick by which the University will be measured as it relates to its institutional response to sexual harassment. 3. A document in which lawyers in DC, who are not themselves educators, dictate to “us” how “we” should do our job. Principles Examples of this reframed “balance”  Institution must use “Preponderance of the Information” standard.  Complainant Student has all rights afforded the Respondent Student in disciplinary process.  Institution must complete an “investigation” that is prompt, thorough, and impartial.  Institution must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified.  “The Law” is about balance Individual rights vs. Community responsibly Another example of the law and struggles of implementing the law include the balance between the Anti-Establishment Clause and Freedom of Assembly (“the Hastings case”).  One way of looking at the “Dear Colleague Letter” is that it has the effect of resetting the balance as it relates to sexual misconduct. It has the purpose of addressing the sense that sexual assault, sexual harassment, and other acts of sexual violence both (a) disproportionately effects women and other victims of sexual violence, and (b) the standard for demonstrating that a violation has occurred should be “easier” than the criminal standard to prove, determine, or react institutionally.   5
  6. 6. 4/25/2012 Notice of Harassment University violates Title IX regulations if the school “has notice” of a sexually hostile environment and fails to take immediate and effective corrective action. Notice = responsible employee “knew, or in the exercise of reasonable care should have known,” about harassment. Another example of this reframed “balance”  “the school may weigh the request for confidentiality (when the complainant requests it) against the following factors: the seriousness of the alleged harassment; the complainant’s age; whether there have been other harassment complaints about the same individual; and the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an “education record” under (FERPA)” Notice of Harassment • are there parts of our culture where women might be exploited because of their sexuality? • ROTC, RA, Band, or Student Leaders Training, Field Trips, or “Initiation” activities • Athletic Department recruitment or welcoming teams • “Handcuff” parties What is the Dear Colleague Letter? 1. A “best practices” document, guiding institutional response. 2. A yardstick by which the University will be measured as it relates to its institutional response to sexual harassment. 3. A document in which lawyers in DC, who are not themselves educators, dictate to “us” how “we” should do our job. 6
  7. 7. 4/25/2012 SRC Rules changed due to DCL Newly listed rights in the UND Code of Student Life There are a lot of things UND has done, for some time, well:  Institution must use “Preponderance of the Information” standard.  Complainant Student has all rights afforded the Respondent Student in disciplinary process.  Institution must complete an “investigation” that is prompt, thorough, and impartial. There are a lot of things UND has done, for some time, well: • Written procedures for resolving complaints of sex discrimination • Grievance procedures be prominently posted [and broadly distributed]. • Coordinate with police investigation, but do not rely on or wait for the conclusion of a police investigation.  Institution must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified. 7
  8. 8. 4/25/2012 There are a lot of things UND has done, for some time, well: What is the Dear Colleague Letter? 1. A “best practices” document, guiding institutional response. • Training: Investigators and SRC members must have training in sexual harassment (of which sexual violence is a subset) issues. 2. A yardstick by which the University will be measured as it relates to its institutional response to sexual harassment. 3. A document in which lawyers in DC, who are not themselves educators, dictate to “us” how “we” should do our job. …just a little more history  Card 1  Ohio University  Card 2  Eastern Michigan  Yale (one of the situations described earlier)  Card 3  Notre Dame When OCR finds that a school has not taken prompt and effective steps to respond to sexual harassment or violence, OCR will seek appropriate remedies for both the complainant and the broader student population. When conducting Title IX enforcement activities, OCR seeks to obtain voluntary compliance from recipients. When a recipient does not come into compliance voluntarily, OCR may initiate proceedings to withdraw Federal funding by the Department or refer the case to the U.S. Department of Justice for litigation. 8
  9. 9. 4/25/2012 So, what are the effects? 1. National attention to the release of the Letter, including by folks in my professional organization. 2. Lots of “learning opportunities,” such as webinars, preconference sessions, and written guidance. (It’s always hard to know which ones will be valuable and which will be more mundane.) 3. Emphasis on training, balance, and equity to students involved in a complaint. How must institutions respond?  Response must be prompt.  Institutional actions intended to protect the complainant  Must conduct an investigation.  Provide for an equitable and prompt resolution. How must institutions respond?  Response must be prompt.  Institutional actions intended to protect the complainant  Must conduct an investigation.  Provide for an equitable and prompt resolution. Protecting the Complainant  Notify complainant of his/her options to avoid contact with the alleged perpetrator (one example is the assignment of a “no-contact directive”).  Allow students to change academic or living situations (with minimal burden on the complainant).  Make complainant aware of counseling resources, health and mental health resources, local law enforcement.  Ensure that complainant is aware of process for reporting retaliatory harassment from alleged perpetrator or his/her associates. 9
  10. 10. 4/25/2012 Duty to Investigate  Institution has a duty to conduct its own investigation.  Should inform and obtain consent from complainant before beginning investigation. (Though sometimes we must proceed without consent if in best interest of the rest of the community.)  Complainant should be informed that we cannot ensure confidentiality—we have an obligation to notify others (examples include law enforcement, campus Title IX officer, colleagues with an “educational need to know).  Institutional response must be The Dear Colleague Letter of April 4, 2011 How must institutions respond? prompt.  Institutional actions intended to protect the complainant  Must conduct an investigation.  Provide for an equitable and prompt resolution. Jeffrey Powell – University of North Dakota – April 25, 2012 10

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