Remedying Sexual Harassment in Colleges and Universities: Legal and Practical Strategies Learning Objective: To understand legal requirements incumbent on colleges and universities to address and remedy sexual misconduct; to formulate effective strategies for combating the issue, through strategic partnerships, education, and targeted initiatives. Sexual misconduct on college and university campuses continues to threaten diversity and inclusion accomplishments. Educational institutions with strong and credible enforcement procedures, in compliance with the many applicable federal and state laws, are best positioned to insure that sexual misconduct is promptly and appropriately addressed. The landscape here is evolving rapidly with many new laws at the federal and state levels, top level White House initiatives, enhanced federal oversight, and greatly increased public awareness. Even college and universities with established procedures need to comprehensively review and expand their approaches. At the end of this seminar, participants will be able to: a. Recognize and understand the complex and rapidly expanding federal requirements for colleges and universities to address sexual misconduct b. Identify strategic partnerships to assist in effectively remedying sexual misconduct on campus c. Formulate practical strategies for developing innovative remedial mechanisms d. Develop evaluative data to assess (and refocus, as necessary) how well the elimination of sexual misconduct on campus is being achieved

1. REMEDYING
SEXUAL
MISCONDUCT IN
COLLEGES AND
UNIVERSITIES:
LEGAL AND PRACTICAL
STRATEGIES

2. Massive Scope of the Problem
• Literally daily reports of serious campus
incidents
• 5/14 – OCR investigating 55 colleges and
universities for compliance in addressing
sexual misconduct on their campuses; just
months later the number jumped to 80
• 2007 Dept. of Justice study: 1 in 5 female
undergraduates experienced sexual
misconduct; only 5% get reported
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3. Massive Scope of the Problem
• 2009-3300 forcible sex offenses on
campus reported
• Columbia/Barnard students (20) claim sex
charges mishandled
• Threat to diversity/inclusion: clear data re
negative educational impact of sexual
misconduct
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4. Recent Pushback
• Harvard Law School found in violation of Title IX,
federal law that prohibits gender discrimination in
education; reforms procedures; 28 faculty
members condemn new policy as lacking most
basic elements of fairness and due process; “stack
the deck” against the accused (more likely than
not standard; no right to counsel, to confront
witnesses, personal cross-examination, even to a
hearing
• Yale – Cardiology Head – response “problematic”
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5. Recent Pushback
• Vassar, Duke, University of Michigan male
students sue claiming fundamental flaws in
Title IX processes
• New York Times: colleges not competent to
handle sex misconduct claims – not
punishing some offenders adequately while
defaming others; lack of coordination with law
enforcement procedures
• Rolling Stone U. VA. Articles
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6. Rapidly Evolving Landscape
• Federal Legislation: Violence Against Women
Reauthorization Act (VAWA) (sex assault, stalking)
updating Clery Act (extends to property adjacent;
wide range of sources); Campus Sexual Violence
Elimination Act (SaVE) (10/1/14) (enhanced
transparency re sexual violence on campus,
enhanced victim rights, campus wide education)
• State Legislation – being enacted/updated across
the country
• Federal DOE (2011 and 2014 Dear Colleague
Letters); Final 2014 Clery Regulations
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7. Rapidly Evolving Landscape
• White House Task Force to protect students
from sexual assault
• Not Alone Website
• 4/14 Task Report
• It’s On Us Public Awareness Campaign
• U.S. Dept. of Justice – 2014 Technical
Assistance Training
• In short, perhaps the most topical legal
challenge facing colleges and universities
– Greatly enhanced federal oversight and
increased public awareness
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8. Legal Considerations
• Title IX of 1972 Education Amendments: prohibits
gender discrimination in all federally assisted
education programs
– Includes sexual misconduct, harassment and assault
– Prohibits hostile environment/reasonable person standard
• Enforcement Clout: Title IX permits DOE to pull
federal funds
• Must publish policy against sex discrimination
• Requirement to take prompt effective remedial action
independent of police criminal investigations
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9. Legal Considerations
• Must act when know of issue or with
reasonable care should have known
• Duty to report complaints; responsible
employee standard (RA issue)
(counselors/pastoral) (health center
volunteers)
• Covers student to student and employee to
student / may cover off campus
• Requires Title IX grievance process and
coordination
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10. Legal Considerations
• Inform of right to report crime to law enforcement
• Disabled, LGBT and interracial student issues
• Access to resources: victim advocacy, housing,
academic support, counseling, health services, legal
assistance
• Potential remedies, comprehensive, holistic victims
services – medical, counseling, academic; moving
perpetrator; special trauma coach, escorts, training
and education, bystander intervention, sex violence
prevention programs, campus climate check, protocol
for working with law enforcement; interim steps may
be necessary
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11. Legal Considerations
• Notice to complainant re outcome
• All complaints of sex harassment/violence must be submitted
to OCR
• 1990 Clery Act – requires disclosure of campus security
information – amended 2000 and 2008 to cover campus
emergency response and protection against retaliation;
expand duty to track and report information about sexual
violence; allows access to students, employees, public and
DOE to crime statistics and programs
• Requires statistics on dating violence, domestic violence, sex
assault and stalking, including description of policy and
procedures in annual security report (ASR) (10/1) (10/20/14
VAWA Regulations); expands protected characteristics to
include gender identity
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12. Evolving Issue of Consent
• Reflects inherent problem of sex/alcohol
on campus, particularly where strong male
fraternity culture
• 40% of students have sex while under
influence of alcohol
• Moving (Smith, McHolyoke) to standard
that informed consent cannot be given
where alcohol/drug impaired
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13. Evolving Issue of Consent
• Some schools requiring affirmative consent
• Clery Act: All incidents must be reported
regardless of consent
• Also troublesome issue of non-consent to
investigation
• Must be told impact on any investigation
• Stress non-retaliation protection
• Can be overridden (rarely – DOE)
• Use training, increased monitoring, support services to
complainant
• Problem of serial rapist (DOT 2007 study – average is 6)
• WH sample reporting and confidentiality protocol
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14. Not Alone: 4/14 White House Task
Force to Protect Students From
Sexual Assault
• Campus Climate Surveys (OCR Took Kit)
(voluntary now)
• Preventing Sex Assault – Engage Men
(PSAs)
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15. Not Alone: 4/14 White House Task
Force to Protect Students From
Sexual Assault
• Effective Responses to Sex Assault (CDC Best
Practice/Research and Inventory)
• Comprehensive Sex Misconduct Policy (WH Checklist
Samples)
• Trauma informed training for school officials (12/14 DOE
material)
• Better disciplinary procedures (e.g. single trained
investigators, no prior sexual history inquiries)
• Identified emergency support
• Community partnerships
• Bystander training (WH Factsheet)
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16. Not Alone: 4/14 White House Task
Force to Protect Students From
Sexual Assault
• Increased Transparency
• Continued problem – Johns Hopkins
• OCR 4/14 52 point guidance on Title IX
• Better Community Partnering
• Rape crisis centers (DOE Sample MOU)
• On campus victim service programs (DOE Guide)
• Local law enforcement (DOE Sample MOU) (too often
overloaded)
• Recent School Research for New Solutions (JHU,
Texas, N.H.)
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17. Not Alone
• U.S. Dept. of Justice (DOJ) training
programs (9/14) for campus officials
investigating/adjudicating Title IX claims
• 6/14 DOJ VAWA guidance – online
technical assistance – victim services,
community responses
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18. Campus Sexual Violence
Elimination Act (SaVE)
• Effective 10/1/14
• Increased Transparency
• Collect/report statistics for domestic violence,
dating violence and stalking-on campus, adjacent
to campus
• Must collect data from RAs, deans, athletic
coaches, campus police, local law enforcement
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19. Campus Sexual Violence
Elimination Act (SaVE)
• Victim’s Rights
• Publish procedures by 10/1/14 covering students
and employees
• Identify possible sanctions, reporting mechanisms,
right to involve local law enforcement, court
protection procedures, available counselling,
mental health, advocacy and legal resources
• Notify re potential modifications to academic,
living, transportation and working situations
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20. Campus Sexual Violence
Elimination Act (SaVE)
• Conduct Proceedings
• Preponderance of evidence standard: more likely
than not
• Prompt, fair, impartial investigation and resolution
• Annual sexual violence training to officials
conducting proceedings
• Equal rights re ability to have other present
• Written explanation of outcomes
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21. Campus Sexual Violence
Elimination Act (SaVE)
• Educational Programs
• Prevention and awareness programs
• Define domestic violence, dating violence, sex
assault, stalking in jurisdiction
• Definition of consent in jurisdiction
• Bystander intervention
• Risk reduction
• Information re disciplinary procedures
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22. Jeanne Clery Act
(Amended Effective 10/1/14)
• Identify reporting mechanisms for campus sex
offenses
• Stress importance of preserving evidence
• Right to notify law enforcement, assisted by campus
authorities
• Non-retaliation
• Informed re existing student services on and off
campus
• Options for charging academic and living situations
• Internal disciplinary procedures
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23. Jeanne Clery Act
(Amended Effective 10/1/14)
• Educational programs –
• Promote awareness of rape, acquaintance rape, or
other sex offenses, forcible and non-forcible
• Collection/reporting of crime statistics –
murder, robbery, burglary, arson, vehicle
theft, sex offenses, illegal weapons, drug
and alcohol offenses, hate crimes
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24. Jeanne Clery Act
(Amended Effective 10/1/14)
• Comprehensive ASR submissions –
statistics, programming, monitoring
• Immediate campus disclosures (timely
warnings) – threats to students/employees
• Public crime log
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25. Violence Against Women Act
(VAWA) (Amended 2013)
• Rape Shield Law (prevents using victim’s
past sexual conduct evidence)
• Strengthening penalties for repeat sex
offenders
• Incent dedicated law enforcement and
prosecution units
• Training in domestic/sexual violence (500,000
per year)
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26. Violence Against Women Act
(VAWA) (Amended 2013)
• National Domestic Violence Hotline (3M
calls)
• Coordinate community stakeholders
• Fostered state law changes
• Stalking a crime in 50 states
• Date/Spousal rape not a lesser crime
• Criminal sanctions for violation of civil protection
orders
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27. Importance of Strategic Partnership
• 11/12/14 Doing More: Reducing sexual
misconduct at Maryland’s colleges and
universities
Appendix A – Sexual misconduct prevention and
awareness related resources
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