A presentation discussing the challenges of conducting concurrent Title IX and criminal investigations on college and university campuses regarding gender and sexual violence, including sexual assault and harassment.

1. © Margolis Healy
Challenges of Concurrent Title IX
& Criminal Investigations
Michael N. Webster, Dir. for Regulatory Compliance
mwebster@margolishealy.com
717-353-9070

2. © Margolis Healy
Agenda
•A brief review
•Summary of recent legislation &
guidance (TIX DCL, Q&A, Not Alone,
Montana, Clery Regs)
•Challenges
•Strategies
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3. © Margolis Healy
A brief review
• TIX-passed in ’72
• No person in the United States shall, on the
basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to
discrimination under any educational program
or activity receiving Federal financial assistance
• Sexual violence not appreciated until DCL ’11
but gender violence addressed in DCL ‘01
• Partially codified by Clery VAWA
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4. © Margolis Healy
DCL 2011 Key Points
•TIXC is the umpire
•Prompt, and equitable process
including adequate, reliable &
impartial investigation
•Neutral advice on criminal filing
•Delay investigation for initial fact
gathering by LEA
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5. © Margolis Healy
DCL 2011 Key Points
•Preponderance of evidence
•IHE required to take steps to
protect the complainant…
promptly
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6. © Margolis Healy
DCL 2011 Key Points
•Comprehensively describes IHE
responses
•Prompt investigation by IHE (not
LEA), knew or should have
•Interim steps… safety and well
being while LEA gathers facts
•Doesn’t need to be on campus
•Employees & 3rd parties too
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7. © Margolis Healy
Q&A Key Points
• Concurrent investigations (p. 28) IHE
may delay the fact-finding, while LEA gathers
evidence and promptly resume when LEA is done
• MOU is strongly encouraged
• Interim measures (p.32)promptly upon
notice
• Suggested timeline is 60 days (with
notices)
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8. © Margolis Healy
Q&A Key Points
• Title IX protects all students from
sexual harassment:
• Be aware of special issues (see OCR Q&A,
pages 5-8, Questions B-2 to B-4)
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9. © Margolis Healy
TIX 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.
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10. © Margolis Healy
Other Guidance
• White House Task Force to Protect
Students from Sexual Assault “Not
Alone”
o Trauma-Informed and victim-centered
o Model MOU broadened participants to include
prosecution, SAFE locations, and victim advocacy
• Montana DOJ/ED RA
o Schools should investigate all reports of
unwelcome conduct of a sexual nature to
determine if conduct is sufficiently severe or
pervasive to create hostile environment (e.g.:
Montana)
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11. © Margolis Healy
Clery + VAWA
• Disciplinary Proceedings must
- Include a prompt, fair, and impartial process from
the initial investigation to the final result;
- Be conducted by officials who receive annual
training on how to investigate and conduct
hearings in a manner that “protects the safety
of victims” and “promotes accountability;” and;
- Provide both parties the same opportunities to
be accompanied to any related meeting by
advisor of choice.
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12. © Margolis Healy
Trauma Informed Training
- Understand institutional obligations
- Explore of rape myths & rape culture biases
- Develop cultural competency
- Understand impact of trauma
- Learn investigative strategies
- Interview complainants, respondents,
witnesses
- Review writing reports
- Review adjudication & appeals
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13. © Margolis Healy
Written NORO
• Written Notice of Rights and Options:
- Information about existing counseling, health,
mental health, victim advocacy, legal
assistance, visa and immigration assistance,
student financial aid, and other services
available for victims, both within the institution
and in the community
- Information about options for, available
assistance in, and how to request changes to:
ü Academic, living, transportation, and working
situations;
ü How these accommodations will be kept
confidential
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14. © Margolis Healy
New Requirements
• Written Notice
- That you will provide information on
resources, accommodations or protective
measures if requested, and the they are
reasonably available, regardless of whether
the victim chooses to report the crime to
campus police or local law enforcement;
- Explanation of procedures for institutional
disciplinary action
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15. © Margolis Healy
Cooperative Investigations
• Single statement minimizes trauma &
addresses evidence issues
• Cooperative training provides better criminal
investigators (Trauma-informed)
• MOU anticipates “fumbles” (ex. interims or
timelines)
• May require presence of “advisor"
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16. © Margolis Healy
Challenges for Local LEAs
• Understand IHE has TIX requirements [interim
action, (eliminate, prevent, & address)
investigation]
• MOU specific to invest. of crimes of gender or
sexual violence.
• Expect culture assessment to include off
campus factors (ex. bars)
• Expect campus policies to impact local PD,
esp. SART
• Have conversation in advance. If it’s
predictable it’s preventable.

17. © Margolis Healy
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