Federal GuidelinesTitle IX

Council on Student Affairs

Lee E. Bird, Ph.D.Oklahoma State University

Dear Colleague Letter

• Office of Civil Rights (OCR)• Title IX of the Education

Amendments of 1972• Letter supplements the 2001,OCR

Sexual Harassment Guidance

Title IX• Title IX prohibits discrimination on the

basis of sex in educational programs or activities operated by recipients of federal financial assistance.

• Sexual harassment of students, which includes acts of sexual violence is a form of sex discrimination prohibited under Title IX.

Title IX, Continued

National Institute of Justice

• 1 in 5 women are victims of completed or attempted sexual assault while in college

• 6.1% of males• 3,300 forcible sex offenses reported

in 2009

What forms of Sexual Harassment

do Students Experience?Student to student harassment (68% of students)

– Sexual comments or jokes (Female 57% and Male 48%)– Sexual touching (Female 28% and Male 22%)– Sexual texting/pornographic email (Female 15% and Male 37%)– Calling an individual derogatory homosexual names (Female

13% and Male 37%)Faculty/Staff to student harassment (18% of students)

– Sexually offensive jokes in class– Using examples in class and calling out a student as an

example

Why do students harass?– Thought it was funny (59%) -Wanted to date the person

(17%)– Thought the person liked it (32%) -Friends encouraged the behavior

(10%)– It’s no big deal (30%)

(Mackenzie Wilfong, OSU AAO)

How does Harassment Make Students Feel?

• How harassment makes students feel varies greatly by gender.– Self conscious or embarrassed (Female 57% and Male 34%)– Angry (Female 55% and Male 32%)– Less confident (Female 35% and Male 16%)– Afraid or scared (Female 32% and Male 9%)

• Impact on Education: How do students react?– Avoid the person (Female 48% and Male 26%)– Avoid a place (Female 27% and Male 11%)– Found it hard to study or concentrate in class (Female 16% and

Male 8%)– Got someone to protect them (Female 16% and Male 4%)– Did not participate as much in class (Female 10% and Male 6%)

(Mus, 2011)

Gender Discrimination

• Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is sufficiently severe and pervasive that it interferes with or limits a student’s ability to participate in or benefit from the school’s programs.

• Sexual violence is prohibited under Title IX

Two Forms of Harassment

• Quid pro quo– “This for that” (i.e. better grade)

• Hostile environment – Reasonable woman standard– Severe or pervasive

• Frequency of conduct• Severity of conduct (one incident may be

enough)• Physically threatening or humiliating• Interferes with the students academic or

extracurricular programs.

Our Job

• Take immediate and effective steps to:

– End sexual harassment and sexual violence

– Prevent its reoccurrence– Address its effects (on the victims)– Prevent retaliation*

– *31% of all EEOC charges were based on retaliation (2009)

Deliberate indifference

“Know or should have known”

Cases:Gebser v. Lago VistaDavis v. Monroe

Training

• Employees trained so they know to report harassment to appropriate school officials

• Employees with authority to address harassment, know how to investigate and respond to victim

Training continued...

• Training to any employee likely to witness or receive complaints. – Teachers– School law enforcement– Administrators– Counselors– General counsel–Health personnel– Resident advisors/ hall directors

Responding to Off-Campus Incidents

• Regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures

• School should also take steps to protect a student who was assaulted off-campus from further harassment or retaliation from perpetrator or associates.

A School that Knows or Reasonably Should Have

Known Must:

• Investigate what occurred • Take appropriate steps to resolve

the situation• Law enforcement investigation does

not relieve the school of study to independently investigated

Weighing Request for Confidentiality

• Seriousness of alleged harassment• Complaint's age• Repeat complaints• Alleged harasser’s rights– (creating an educational record)

NOTE: Even if the school cannot take disciplinary action against the alleged harasser because of confidentiality, it should pursue other steps to limit effects of alleged harassment and prevent reoccurrences

Procedural Compliance with Title IX

• MUST publish notice of nondiscrimination

• Designate at least one employee to coordinate Title IX compliance

• Adopt and widely publish guidance procedures

Notice of Nondiscrimination

• College or University does not discriminate on the basis of sex in its education programs and activities

• Inquires concerning the application of Title IX may be referred to Title IX coordinator

• Name/title– Office address– Telephone #– Email address

• Define sexual harassment- give examples

Title IX Coordinator

• Over see Title IX complaints, identifying and addressing any pattern or systematic problems that arise during the review of complaints

• Have adequate training on Title IX, harassment, and sexual violence, to know how to conduct grievance investigations and hearings

Grievance Procedures

• Procedure must apply to sex discrimination complaints filed by students against student, school employees, other students or third parties.

• Does not specify form to be used• Must meet the Title IX requirement of

according a complainant, a prompt and equitable resolution

Mediation (ADR)

• For sexual assault allegations, mediation is not appropriate even on a voluntary basis

• If mediation used for lesser issues, must have trained mediator

• Improper for a student who complains of harassment to be required to work out the problem with the accuser alone

• Student may end informal process at anytime and move to formal process

• Do your grievance procedures provide for prompt and equitable resolutions?

–Notice of procedures - where complaints can be filed

– Ability to address alleged complaints by employees, other students or third parries

– Adequate, reliable and impartial investigations

Grievance Procedures

• Designated and reasonably prompt time frames for the major stages of the complaint process

• Notice to parties of the outcome of the complaint

• Prevent recurrence of any harassment

• Conect discriminatory effects

Grievance Procedures Cont.

Hearing Standards

• Preponderance of evidence (51% sure) must be used

• Equal opportunity to present relevant witnesses and other evidence

• Both receive timely access to information used at hearing

• Equal use and role of attorney (if used)• Discourages cross examination• Requires appeal process for both parties• Maintain documentation of all proceedings

(verbatim record)

Timelines Must be Specified for:

• Full investigation*• Both parties to receive a response

regarding the outcome of the complaint

• Appeals

*60 days following receipt of complaint is recommended

Notice of Outcome

• Both parties may be told concurrently• Must be in writing and include

appeal criteria• Post secondary institution may disclose

to anyone• Re-disclosure requirements omitted

Education and Prevention

• Be proactive – training and education for new faculty, staff and employees

• Train students who serve as advisors in residential halls

• Training for student athletes and coaches

• Develop printed material• Programs and events

Remedies and Enforcement

• Must have immediate steps to eliminate the hostile environment

• Prevent recurrences

• Address effects

Interim Steps

• Help victim avoid contact with accused• Allow students to change living or

academic arrangements• Minimize burden on complainant• Offer counseling, mental health

services and tell them of their right to file a complaint with the police department

• Offer tutoring• Withdrawal without penalty• Medical support as needed

Avoiding Retaliation

• Be sure complainant knows that he/she should notify police or investigative authority if there is any form of retaliation from anyone

Things to Remember

• Be approachable and listen respectfully• Do not panic, you are not alone• Draft a memo or note to yourself after

the conversation that caught your attention– Continue to document all conversations with

student, faculty, or staff regarding relational issues

• Report incidents immediately• Do not just let it go• Try to stay neutral• You may direct the student to Title IX

Coordinator or the student conduct office

• Offer students the option to report through Ethics Point or a similar confidential system, if available

Things to Remember, Cont.

Addressing Harassment or Discrimination

• How will the issue come to you?– I have a problem with ____– ___ is bothering me– You know ____ is really a pain– ____ will not leave me alone– I feel like ________ is always

staring/leering/making comments/lurking

• Prompt and appropriate response every time

•Go back to incident and provide a full narrative of what happened

•What do you recall, what happened next?•How did you respond, how did you feel, how did you react?

•Follow up where, when, how long, anyone else heard or saw?•Did you talk to anyone after or write anything down?

•Do you have a dairy or day planner with notes?•Did you keep an voicemail, texts, emails, pictures, Facebook wall etc

•Have you reported this or discussed this with a anyone else?•Any threats or promises based upon this interaction?•What would you like t see happen as a result of this investigation•Anything else you would like to add?•Any questions that I should ask that I did not?

Initial Questions to Ask

How to Get the Message Out

• Going beyond the notice• Workshops

– Sexual harassment, employment discrimination, diversity, supervisor how to, graduate assistant awareness, disability accommodation awareness.

• Revise your posters and provide table tents for advisors

• Inclusion ambassadors program– Review each protected category

• Helpful website with complaint process and policies linked

• Meeting with department heads and deans before complaints

• Developing relationships with stakeholders so you are the resource

Thank you!Questions?