This guy on the other hand…. [Perhaps, to be honest, this is a good illustration about how we all felt when we read the DCL. There are a lot of inconsistencies and ambiguities. But, we have to take it very seriously – it’s an important guidance document regarding your institution’s Title IX compliance obligations. (NACUA: The DCL has 41 musts. 71 shoulds. 17 recommends. 46 mays!!)So what do you have to do?According to the DCL, assuming that your institution is covered by Title IX of the Education Amendments Act of 1972 and its implementing regulations, which I assume all of your institutions are (given that presumably all of you receive federal financial assistance), then you are required to designate a Title IX Coordinator. So what is the role of the Title IX Coordinator? You are responsible for ensuring that your institution complies with Title IX. Your role is to ensure that your institution is complying with its Title IX obligations (including the prompt and fair resolution of complaints, education and training, and taking prompt and effective action to end the harassing conduct).This means:*You oversee the investigation and adjudication of all complaints (but you are NOT a factfinder);*You identify any patterns or systemic problems that arise;*You are available to meet with students as needed. *You may designate coordinators who will carry out specific functions*Only one coordinator can have ultimate oversight responsibility – those in a deputy or supporting role, like me, should have their responsibilities clearly spelled out. We want transparency and objectivity. My boss needs to ensure that I handle complaints consistent with my Title IX obligations. To that end, she can’t serve as a fact-finder. In fact, OCR says that Title IX Coordinators cannot have other job responsibilities that create a conflict of interest – like also being a disciplinary board member or general counsel.*You have to have the requisite training and education (good thing you are all here – a good first step). You need to know what constitutes sexual harassment, including sexual violence, and you must have a very good understanding of your institution’s grievance procedures.
PRACTICAL TIPS:*You can only do your job to the extent that you have the respect and trust of others. *You must not be an advocate for individuals or a cause (beyond Title IX compliance)…this is inconsistent with being seen as neutral and the guardian of Title IX…it also gives you more sway when an individual case is going wrong and you have to step in.*The integrity of the process is paramount. Neutrality and objectivity are key – also making sure that the people responsible for carrying out the investigation and adjudication process are doing it consistent with their obligations. *Prompt, thorough, impartial, and equitable investigations.*Prompt resolution and action taken that is designed to end the harassment. Also, follow up with the parties is critical. You must also be mindful of ensuring that your policies are in compliance with Title IX and DCL (mention Middlebury’s policy overhaul) and that you follow your procedures to the letter. You are also responsible for ensuring that appropriate education and training is provided to employees and students (I will talk about that in a moment)
It is critical that you sure relevant people know that you’re the Title IX coordinator. They also need to know where to find you. So you need to get your name out there every way you can. So, who’s “relevant”? According to OCR, every student, faculty and staff member.You also must publish a Notice of Nondiscrimination that states that you do not discriminate on the basis of sex in your education programs and activities and that Title IX requires that you not discriminate in that manner *The Notice of Nondiscrimination should state that inquiries concerning Title IX be directed to your Title IX Coordinator – and you need to include contact information for that person. *The notice must be widely disseminated. (Middlebury has a Notice of Nondiscrimination, Anti-Harassment/Discrimination Policy, Sexual Misconduct Policy, Student Resource Guide, Student-Athlete Resource Guide, and an e-mail to all students every year with links to the above policies as well. It is well publicized on our web and we make printed copies available for anyone who needs them). We have this in other official College publications as well (including our graduate programs). I keep a file of every all campus communication I have regarding the dissemination of this information. We also e-mail the Notice annually.*You should publish this in every official publication of your institution – more is better. There can never be overkill as far as the OCR is concerned!*The notice must also specifically state the role of any Title IX designees (e.g. who will handle complaints by faculty staff or students). Talk about what Middlebury does: I am the Title IX Coordinator’s designee for the purposes of overseeing investigations and adjudicating sex discrimination complaints, including sexual harassment and sexual violence, training and education. My Colleague, the Judicial Affairs Officer, oversees a similar process concerning the adjudication of complaints under our separate Sexual Misconduct Policy. We are the two Title IX Coordinator designees and this is spelled out in all of our publications.I report to the College’s Title IX Coordinator – she is also the Dean of the College and Chief Diversity Officer. It’s a good system – she is there to ensure that I am following our policies and procedures as well as OCR’s mandates.Bottom line here : You need to do whatever it takes to get your name out there.
First step to building reputation and trust = building relationships. You must have an excellent team to support you in the process.With whom should you build these relationships? Everybody up the chain from you – VPs. President, Board. (if you lack support from your leadership, good luck….and then, Student affairs, campus police, town police, athletic department, res. Life staff, and faculty). Everyone needs to be on board with what you are trying to do. Challenge: Budget and human resources. How do you get the budget you need to do investigations and education? Especially if you are a small school? One complicated case could wipe out your internal resources (e.g., public safety). Challenging to bring investigators in from the outside as they don’t know your campus or the players. That’s why training them is key, too.We have done staff meetings with President’s staff, all of student life, including Public Safety and athletics. I have done trainings for all of these departments. This has helped in raising awareness about my role as the Title IX coordinator’s designee in enforcing our Anti-Harassment/Discrimination policy. We have also trained our Community Judicial Board on these issues. Get to them before you’re thrust upon them…Introduce them to each other before you all get to know one another in a difficult situation (e.g., extremely public sexual assault case). Also allow you to do table top exercises or similar activities to figure out and fix the weaknesses in your systems/processes. BUT..make it valuable…people know when you’re wasting their time or going through the motions….and your reputation and efforts will suffer as a result. It’s helpful to develop a hypothetical scenario and to have your staff go through the process.Leverage the relationships you already have (e.g., OCG things you’re great…have them tell others, or introduce you to others…if those individuals respect the OGC). Your relationship with counsel is key. Don’t hesitate to contact them.Also, build a relationship with OCR. I have had them on our campus to do training – and I often consult them on various issues. They are very helpful. I think it’s critical that you understand that they see themselves as a resource for institutions. USE THEM!!!
Education and trainingTraining: Employees likely to witness or receive reports: (faculty, student life staff (including res. life advisors), campus police, counselors, deans, administrators, school counselors, general counsels, student athletes and coaches). We have done live training to entire student life staff, president’s staff, public safety, our judicial board; and we have done on-line sexual assault training for incoming students “My Student body” and “Step-Up’ - -which is live training, with a sexual assault scenario, that we give during freshmen orientation week. Other thoughts: Orientation programs for new students, faculty, and staff; student athlete orientation, web sites (we have an SAOC web site that provides detailed information on resources and complaint procedures, and what to do if you have been a victim). Campus-awareness events/speakers. Publications (we have posters in all of our bathrooms).We are also using UE’s online training for faculty and staff, and I did a recent training for the whole coaching staff on our new policy, procedures, resources, and reporting requirements. We are hoping Margolis Healy will come up with an online training for all students, faculty, and staff in the area of sexual harassment and sexual violence. This would solve the problem. The task of educating the entire campus is daunting, at best. We also have a Sexual Assault Oversight Committee, and we are looking at bringing speakers to the college and planning certain student-driven events to raise awareness.What is required? OCR is vague on this point. At a minimum, we need to educate on the following: How to recognize sexual harassment and sexual violence, the institution’s policies and procedures (reporting and complaint procedures), the consequences of violating policies, information aimed at encouraging students to report to the school and law enforcement; where and to whom to report; how to avoid sexual violence (alcohol connection); what happens during an investigation, possible remedies and outcomes, interim orders; and resources available to victims (e.g. what to do immediately – medical and counseling resources, academic support, other resources and accommodations for the complainant). Periodic surveys on the climate – analyze your data to see if your response is effective – continue evaluating your practices and procedures for effectiveness. (I report to the president each year re harassment stats…). Under Clery, we keep track of sexual assault reports as well. It’s your responsibility to look at that data – don’t just put in on the shelf. Use it to figure out where training and education and other remedial measures are needed.
PreventionOnce you’ve built relationships, get the group together (or you can do this yourself to start) and start pre-thinking the difficult issues that will come up:How will you deal with forensic evidence? Who will be your expert as recommended by the DCL?DCL says: “If an investigation or hearing involves forensic evidence, that evidence should be reviewed by a trained forensic examiner.” I assume they would take the same position with respect to other medical evidence.Same questions for other medical evidence?What will you do in a case when local police or the prosecutor as for more time? (DON’T GO INTO THIS)Schools cannot wait for the conclusion of a criminal investigation or criminal proceeding to initiate their own Title IX investigation. Institutions must take immediate steps to protect the student in the educational setting – so you must not deviate from this obligation despite what the police or prosecutor want you to do. However, the DCL does say that a school may need to delay, temporarily, the fact-finding portion of a Title IX investigation while the police are gathering evidence – but once notified that the police department has completed its gathering of evidence (as opposed to the filing of any charges or the ultimate outcome of an investigation – you can’t wait for that), you must promptly resume and complete our fact-finding. In the meantime, notify the students of rights, grievance process, and take interim measures. This should not be temporarily delayed by police department evidence-gathering.“Any MOU with a local police department must allow the school to meet it’s Title IX obligation to resolve complaints promptly and equitably.”What will you do with a case that receives intense media scrutiny? Who will be your spokesperson and why? How will you deal with FERPA constraints and still be responsive to media requests? (Your PR PERSON MUST BE IN CLOSE CONSULTATION WITH COUNSEL. INVOLVE YOUR PR PERSON IN AS MANY MEETINGS AS POSSIBLE – KEEP DETAILS AND NAMES OUT OF THE PRESS – message should be that you treat these claims very seriously and that we are investigating the matter – cite student privacy as reason you can’t give more details.). Get Jeff’s thoughts here as well.What about the reluctant complainant? Think of various options…climate assessment? Interim steps? No Contact Order?? Academic Accommodations?This is the biggest challenge. Sometimes all we can do is provide a No Contact Order and academic accommodations. But this gets tricky –especially if you are in a small institution and the two students are in the same major. Remember, there is no finding against the alleged perpetrator. He/She is still a student in good standing.
Compliance –Are your policies/procedures compliant? (Read DCL carefully, consult with counsel, and make sure you incorporate all of their language and processes-talk about what we did in response to the DCL) Are they easy to understand, easy to locate and widely distributed? (standard in DCL)(We have it on posters, in bathrooms, too)Are they being applied as written? Pull a few hearing tapes, hearing results, investigation reports…what do you find? Do you need more/different training?Make a plan to become compliant [quickly] in the areas where you see deficiencies. (And don’t be afraid to ask OCR questions)What if your administrators won’t take steps towards compliance, such as your Dean of Students? Go to the next level, or all the way to the Board if you have to. Neither OCR nor the courts (or your Board) want to hear “I tried, but they wouldn’t do it.”Talk about what we did here at Middlebury in response to the DCL (Sexual Misconduct policy, Anti-Harassment/Discrimination Policy, and Nondiscrimination Statement (including getting rid of our hearing process in favor of a single investigator model).
Ensure your investigators/hearing staff are cared for if you want to keep them. And you do – a skilled investigator who understands your institution and its culture (e.g.,. How to get things done) is hard to replace. This job can be extremely taxing and there is a high risk of burn out. Keep that in mind as cases arise and deadlines loom.Make sure others know their jobs are hard, can be emotionally draining and can’t necessarily be done quickly. They need time to do their jobs and time off to rejuvenate.Make sure they have somebody knowledgeably to consult with on job issues (you, a peer at another institution, etc.)Make sure they have the respect and authority to get what they need to complete their investigation (e.g, access to all records, help with recalcitrant administrators)Make sure they have the skill and training to do their jobs.MAKE SURE YOUR INVESTIGATORS ARE TRAINED (not only in the area of sexual violence – but in your school’s policies and procedures and in terms of dealing with students and the impact of trauma on memory). CHALLENGE: Finding trained investigators outside your institution. Public Safety staff is not always ideal for doing these types of cases (it’s particularly a problem on small campuses). We have been interviewing outside investigators and we have retained Margolis Healy to do their training. There will be scrutiny by OCR around the skill and training of your investigators. Role of counsel in this process is important too.
Importance of being consistentPeople are watching – despite all of our admonitions about confidentiality (which, by the way has limits in sexual violence cases anyway), people around campus will discuss cases and outcomes. Given that Clery requires that, when the conduct involves a sex offense (forcible or non forcible) you have to disclose the decision and the disciplinary outcome to the victim. You also can’t condition the disclosure on the victim’s agreement to remain silent. She or he can put it in the newspaper the next day.All of this is to say that you need to be consistent – people will know if you aren’t – and that will undermine the integrity of the process. In a system where we want to foster trust and encourage reporting, you can’t afford to be otherwise.
Most importantly, be flexible…not the opposite of being consistent. Always make decisions based on what your policy says, but with an eye toward the circumstances at hand.
UNC Title IX Training Seminar, FEB 2013
University of North Carolina SystemTitle IX and Campus Security Authority Training Program February 13-14, 2013