Title IX, Meet Clery, Clery Meet Title IX: Implementing the VAWA Amendments

Title IX, Meet Clery,
Clery Meet Title IX:
Implementing the VAWA Amendments
Steven J. Healy, Margolis Healy Associates
Jeffrey J. Nolan, Esq., Dinse, Knapp McAndrew, P.C.

© Margolis Healy Associates, LLC
Agenda
• If it's not Title IX, why should I care?
• Codification of portions of the DCL
• Requirements
• Practical Challenges
• Negotiated Rulemaking

Agenda
A Good Faith Effort
http://www.ifap.ed.gov/dpcletters/
GEN1413.html

Title IX Fundamentals
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.
4

Sexual Violence Defined
• 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
5

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)
6

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 . . .”
7

Overview of Mandates
• Notice of Non-discrimination
• Title IX Coordinator
• Grievance Procedures
- Notice
- Prompt and equitable
- Adequate, reliable, and impartial investigation of
complaints
- Designated and reasonably prompt time frames
- Notice of outcome
• Prevention, Education Training
8

Summary of Institutional Obligations
• If institution knows or reasonably
should know, Title IX requires
immediate action to eliminate the
harassment, prevent its recurrence, and
address its effects.
• Must designate Title IX Coordinator,
publish notice of nondiscrimination, and adopt
and publish grievance procedures.
9

• Train employees to report harassment to
appropriate institutional officials
• Train employees with authority to address
harassment, or who are likely to witness it or
receive reports, how to respond properly
- OCR examples: “teachers, school law
enforcement unit employees, school
administrators, school counselors, general
counsels, health personnel, and resident
advisors.”
10

• Investigate complaints adequately, reliably
and impartially
• Provide grievance procedures that
promote prompt, equitable resolution of
complaints
• Undertake education and prevention
efforts
11

Violence Against Women Act (1994)
Designed to improve criminal justice response
to violence against women by, for example:
• Strengthen federal penalties for repeat sex
offenders
• Create a federal “rape shield law,” which is
intended to prevent offenders from using victims’
past sexual conduct against them
• Strengthen victims’ ability to obtain/enforce
protection orders

Violence Against Women Act (1994)
• Funding training for police and judges regarding
domestic and sexual violence
• establishing the National Domestic Violence
Hotline
• developing coordinated community responses to
prevent and respond to violence against women

Clery Act VAWA Amendments
• Part of Violence Against Women
Reauthorization Act (“VAWRA”) of 2013
• Amends HEA “to improve education and
prevention related to campus sexual
violence, domestic violence, dating violence,
and stalking”
• Effective March, 2014/October, 2014 ASR

Keeping Perspective
• COMPLIANCE IS IMPORTANT, BUT
PREVENTION AND RESPONSE IS MORE
IMPORTANT

The Connections
• Policy: Coordinated/
multi-disciplinary
response and
investigations
• Compassionate, victim-centered
services and
trauma informed
response
• Title IX requires immediate
action to eliminate the
harassment, prevent its
recurrence, and address its
effects.
• Training be provided to any
employees likely to witness or
receive reports of sexual
harassment and violence,
including teachers, school law
enforcement unit employees,
school administrators…
Essential Components
Title IX/DCL/VAWA
Guidance

The Connections
• Objective fact finding
• Thorough investigations
and reports
• The fact-finder and
decision-maker should have
adequate training or
knowledge regarding sexual
violence.
• Adequate, Reliable and
Impartial investigations
Essential Components
Title IX/DCL/VAWA
Guidance

New Policy Requirements
• Several specific procedural protections/
statements must be included in 2014 ASR
• Some were derived or adapted from April
2011 DCL
• Applicable to cases involving student AND
employee complainants
• Must align policies with ASR statements

Institutional Commitment to Prevention
• [Name of institution] is committed to providing
a safe learning and working environment. In
compliance with federal laws, we have adopted
policies and procedures to prevent and respond
to incidents of sexual assault, domestic
violence, dating violence, and stalking involving
members of our campus community. These
guidelines apply to all students, faculty, staff,
contractors and visitors

Definitions
• Sexual Assault, Domestic Violence, Dating
Violence, and Stalking
• Must include local and should include
institutional definitions
• Must include definition of consent in applicable
jurisdiction

Reporting An Incident
• Procedures victims should follow… ,including written information about–
• The importance of preserving evidence that may assist in proving that the alleged criminal offense
occurred or may be helpful in obtaining a protection order;
• How and to whom the alleged offense should be reported;
• Options about the involvement of law enforcement and campus authorities, including notification
of the victim’s option to–
 Notify proper law enforcement authorities, including on-campus and local police;
 Be assisted by campus authorities in notifying law enforcement authorities if the victim so chooses;
and
 Decline to notify such authorities; and
 Where applicable, the rights of victims and the institution’s responsibilities for orders of protection, no
contact orders, restraining orders, or similar lawful orders issued by a criminal, civil, or tribal court or
by the institution.

Challenges to Implementation
• Coexisting response requirements
Responsible
employee
Campus
Security Authority
Mandatory
Reporter of Suspected Child Abuse
• Centralized reporting review processes
• Consistent and on-going training adjusted
regularly based upon community needs
climate (DFSCA)

Victim ( Other Party) Confidentiality
• Information about how the institution will protect
the confidentiality of victims and other necessary
parties, including how the institution will…
[
Name of institution] recognizes the often-sensitive nature of
sexual assault, domestic violence, dating violence, and stalking
incidents. We are committed to protecting the privacy of any
individual who makes a report. Different officials and personnel
are, however, able to offer varying levels of privacy protection to
victims.
Reports
made to [name of institution] officials will be kept
confidential, and identifying information about the victim shall not
be made public

The reluctant complainant
• If Complainant requests confidentiality, conduct what
review you can and is appropriate to the circumstances:
Were
there witnesses?
Are
you aware of other complaints involving the Respondent?
Can
you proceed in a fair manner if Complainant’s identity is not
revealed?
 Significant constraints if Complainant insists on confidentiality and there are
no witnesses, etc., but always focus on what you can do. OCR will likely
respond positively to good faith efforts and actions.
 Amnesty?

Written Notification
• A statement that the institution will provide written
notification to students and employees about existing
counseling, health, mental health, victim advocacy, legal
assistance, visa and immigration assistance, and other
services available for victims, both within the institution
and in the community; (applies for both on off campus
incidents)
Any
student or employee who reports an incident
of sexual assault, domestic violence, dating violence,
or stalking, whether the incident occurred on or off
campus, shall receive a written explanation of their
options and rights as provided for under this policy.

• SAMPLE WRITTEN STATEMENT

• Investigator skillset
• Timelines
• Concurrent criminal and IHE investigations
• Employees are often the forgotten or under-attended
population

Explanation of Disciplinary Action
• An explanation of the procedures for institutional
disciplinary action in cases of alleged dating violence,
domestic violence, sexual assault, or stalking, as required
by paragraph (k) of this section; and….
Must
state that both parties are entitled to same
opportunities to have others present during
disciplinary proceedings
 “including the opportunity to be accompanied
to any related meeting or proceeding by an
advisor of their choice”

Question: Does that include legal
counsel?

• Must include statements that:
 covered disciplinary proceedings will provide a
prompt, fair and impartial investigation and
resolution
 such proceedings will be conducted by officials
who receive annual training on issues related to
domestic violence, dating violence, sexual assault,
and stalking and how to conduct an investigation
and hearing process that “protects the safety of
victims and promotes accountability”

Educational Requirements
• Description of education programs to
promote awareness of offenses of DV, DV,
SA and stalking
• Requirement includes several specific
mandates of what must be covered in:
 “primary prevention and awareness
programs” for incoming students and new
employees
 “ongoing prevention and awareness
campaigns for students and faculty”

Educational Requirements
• Regarding “safe and positive options for
bystander intervention that may be carried
out by an individual to prevent harm or
intervene when there is a risk of” a covered
offense against another person
• Regarding “information on risk reduction to
recognize warning signs of abusive behavior
and how to avoid potential attacks”

Rule Making
• Term – Domestic Violence: local variations esp.
where multi-campus systems are involved.
• Term – Cohabitating: Various housing
arrangements… does this include roommates?
• Term – Dating violence: Does the IHE investigate a
claim of dating relationship? If so what benchmarks
apply to the criteria used (length, type, frequency,
etc.)? Investigator’s judgment (similar to hate
crime)?

Rule Making
• Stalking vs. Intimidation – Hierarchy, logging (lesser
included).
• Oodles of electronic variations on the theme.
Operationalized by Clery geographies (presently
requires cyber-intimidation while victim is in Clery
geography)
• And it is all the more confused when the log
portions of Clery are included.

Rule Making
• How to judge the sufficiency of…
On-
going
Campaign
Awareness
Programming
Primary
Prevention
Bystander
intervention
Training
(afford, track or require participation)
… if so what about casual students

Rule Making
• Programs to prevent – comprehensive ed. and training
to prevent violence incorporating diverse approaches
that are culturally relevant, inclusive, sustainable,
responsive and consider risk and protective factors.
• Primary prevention – programming, initiatives and
strategies intended to stop DV, DV, SA, Stalking
before it happens through positive healthy behaviors
and beliefs. Ex.: efforts to change social norms,
promote healthy relationships, change bystander
inaction, etc.

Rule Making
• Awareness programs – programs, campaigns
initiatives increasing knowledge of SA, DV, DV
Stalking. May be community wide, or targeted.
Ex.: theme months, speak out campaigns, etc.
• Bystander intervention – Safe and positive options
preventing harm where risk of SA, DV, DV
Stalking exists. Includes training of recognition,
overcoming barriers, identifying safe options, and
taking action.

Rule Making
• Risk Reduction – Mitigating factors that increase
the likelihood. Addresses institutional or cultural
conditions facilitating risk. Ex.: escorts, bystander
intervention, communication systems, etc.
• Ongoing awareness and prevention – sustained
over time from diverse sources, and various
strategies. Ex.: information delivery, involvement
opportunities, etc.

What to do
• Engage your community
Students
Faculty
Staff
Leadership
Local
partners

What to do
• Make a plan with measurable action items:
Task
Force
 Include External Partners (SAO, Sex Crime Task
Force, local PD)
Consider
external policy audit
Surveys
Programming
Inventory
Training
and education inventory

Questions?
Jeffrey J. Nolan, Esq.
jnolan@dinse.com
www.dinse.com

Steven J. Healy
shealy@margolishealy.com
www.margolishealy.com

Title IX, Meet Clery, Clery Meet Title IX: Implementing the VAWA Amendments

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