Title IX - Focusing on the Important SCCLEA


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Important takeaways and actionable items regarding Title IX and the Dear Colleague Letter

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Title IX - Focusing on the Important SCCLEA

  1. 1. Focusing on the Important -- Title IX Imperatives Steven J. Healy Gary J. Margolis
  2. 2. Agenda • Title IX & the DCL 101 • What Really Matters in the DCL • What Your Institution Should Do Today • Q&A© Margolis Healy & Associates, LLC 2
  3. 3. 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.© Margolis Healy & Associates, LLC 3
  4. 4. 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 . . .”© Margolis Healy & Associates, LLC 4
  5. 5. 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)© Margolis Healy & Associates, LLC 5
  6. 6. 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)© Margolis Healy & Associates, LLC 6
  7. 7. 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© Margolis Healy & Associates, LLC 7
  8. 8. 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.© Margolis Healy & Associates, LLC 8
  9. 9. 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)© Margolis Healy & Associates, LLC 9
  10. 10. 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© Margolis Healy & Associates, LLC 10
  11. 11. 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)© Margolis Healy & Associates, LLC 11
  12. 12. 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© Margolis Healy & Associates, LLC 12
  13. 13. What Really Matters in the Dear Colleague Letter© Margolis Healy & Associates, LLC 13
  14. 14. 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© Margolis Healy & Associates, LLC 14
  15. 15. 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.© Margolis Healy & Associates, LLC 15
  16. 16. 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© Margolis Healy & Associates, LLC 16
  17. 17. 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© Margolis Healy & Associates, LLC protect the student in the educational setting. 17
  18. 18. 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© Margolis Healy & Associates, LLC
  19. 19. 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© Margolis Healy & Associates, LLC
  20. 20. 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© Margolis Healy & Associates, LLC
  21. 21. 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© Margolis Healy & Associates, LLC
  22. 22. 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© Margolis Healy & Associates, LLC
  23. 23. 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© Margolis Healy & Associates, LLC
  24. 24. 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)© Margolis Healy & Associates, LLC
  25. 25. 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…© Margolis Healy & Associates, LLC
  26. 26. 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© Margolis Healy & Associates, LLC
  27. 27. 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© Margolis Healy & Associates, LLC 27
  28. 28. 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© Margolis Healy & Associates, LLC 28
  29. 29. 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© Margolis Healy & Associates, LLC 29
  30. 30. 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© Margolis Healy & Associates, LLC 30
  31. 31. 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© Margolis Healy & Associates, LLC 31
  32. 32. 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)© Margolis Healy & Associates, LLC 32
  33. 33. 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.© Margolis Healy & Associates, LLC 33
  34. 34. 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)© Margolis Healy & Associates, LLC 34
  35. 35. 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© Margolis Healy & Associates, LLC 35
  36. 36. 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© Margolis Healy & Associates, LLC 36
  37. 37. 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© Margolis Healy & Associates, LLC 37
  38. 38. 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© Margolis Healy & Associates, LLC 38
  39. 39. 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© Margolis Healy & Associates, LLC 39
  40. 40. SlideSharehttp://www.slideshare.net/margolishealy© Margolis Healy & Associates, LLC
  41. 41. YOUR FREE GUIDE TO CAMPUS SAFETY & SECURITY • Research and compare crime data for over 4,400 schools • Access relevant safety resources • Plan for a safe spring break and travel abroad experience • Get breaking campus safety and security-related news© Margolis Healy & Associates, LLC