Title IX, Clery and VAWA

What are we talking about and how does an audit of these processes

help you? Jennifer Hammat & Roxanne Hall

What is Title IX?

• A section of the Education Amendments of 1972– “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 education program or activity receiving Federal financial assistance.”

• This policy covers all people (irrespective of gender identity/expression or sexual orientation identity.

Why now?

• Thousands of students are victims each year• Dear Colleague Letter 2001• Dear Colleague Letter 2011• Q&A document from OCR• White House Task Force (NotAlone.gov) • It’s On Us campaign (White House) • The Law Makers are Onboard

Terminology

• Sex Discrimination, Sexual Harassment• Sexual assault• Sexual violence/Interpersonal Violence

(domestic violence & dating violence) • Stalking• Sexual Misconduct (vs. sexual misconduct)• Consensual v. Nonconsensual Relationships• Versus CLERY ACT terms

Term Overlap

Sexual Discrimination & Sexual Harassment

Relationship Violence & Stalking

Sexual Assault

Common discrimination

• For Employees – Pregnancy– Hiring practices– Hostile environment issues overlooked/ignored– Someone told you something in confidence

• For Students– Dating violence, domestic violence, stalking, and

sexual assault – Pregnancy

Reporting

• “Once a school knows or reasonably should know”, it must take immediate action to end the discrimination and right the wrong

• Schools have responsibilities to respond; faculty and staff have responsibilities to report– Reports can be anonymous, but they must be

reported.• Tell faculty not to handle it on their own. • Call one of the Title IX Coordinators

Due Process for Accused

• Due process is required for both parties • Interim measures can be taken to protect both

parties and prevent recurrence • “No Contact Directive”• Cooperation with the investigation • If you want to bring an advisor, either party

may do so• Informal vs. formal investigations

Publicize

Title IX Coordinators • Who are they?(Names)• Where are they? (Office and the physical

address) How can I reach them? (Telephone number & email address)

Distribute the Notice of Non-Discrimination (separate communication)Publish Grievance Procedures & how to file a complaint with your campus AND with OCR

Retaliation

• Threats, intimidation• Discipline• Failure to accommodate needs• Forcing or pressuring accuser or accused to

take time off from school• Removing accuser from teams, clubs, etc.• It doesn’t matter if the claim is true.

Retaliation is prohibited.

Traps

• The tendency is to hyper provide for the students, and forget the employees – or continue to process them at Title VII exclusively

• If it can be a Title VII it can be a Title IX – and they haven’t set limits for damages under Title IX yet

• Failing to adequately provide process for the accused – more litigation and counter complaints in this area

VAWA Provisions

• Policies that encourage prompt reporting of crimes when "victim elects or is unable to make such a report"

• Addition of categories of prejudice to hate crimes (national origin and gender identity)

• Must start collecting and reporting on domestic violence, dating violence and stalking incidents reported to campus security authorities or local police

VAWA Continued

• Maintain confidentiality of victims' names when sending a warning to the campus community

• The term "dating violence" means violence committed by a person (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship. (iii) The frequency of interaction between the persons involved in the relationship.

VAWA Continued

• The term "domestic violence" includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction.

VAWA Continued

• The term "stalking" means engaging in a course of conduct directed at a specific person that would cause a reasonable person to - (A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress.

• The term "sexual assault" means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the FBI.

VAWA Continued

• 1) In collecting statistics re: murder, sex offenses, robbery, and hate crimes (including national origin and gender identity), etc. use definitions provided by the DOJ and FBI 2) In collecting statistics re: domestic violence, dating violence and stalking, use definitions provided by VAWA

VAWA Continued

• Include in ASR a statement of policy re: programs to prevent domestic violence, dating violence, sexual assault and stalking

• Include in ASR procedures that will be followed after an incident of domestic violence, dating violence, sexual assault or stalking has been reported

• Include in the ASR information about education programs

VAWA Continued

• Include in the ASR information re: possible sanctions or protective measures that may be imposed following a final determination of the institution's disciplinary procedure re: a sex-related allegation

• ASR to include information re: procedures victims should follow after a sex-based offense has occurred

VAWA Continued

• ASR to include information re: institution's disciplinary procedures

• ASR to include information re: how institution will protect confidentiality of victims

• ASR to include information re: on- and off-campus physical and mental health resources

• ASR to include information re: victims' ability to request an accommodation

VAWA Continued

• Institution to provide written explanation to students and employees of his/her rights and options

• Prohibition on retaliating against anyone exercising his/her rights under Clery Act

Clery Connection

• Because the Department of Education developed for institutions and handbook on the requirements for compliance under the Clery Act, developing audit tools may be slightly easier.

• The Handbook for Campus Safety and Security Reporting, https://www2.ed.gov/admins/lead/safety/handbook.pdf , Appendix E provides a “Checklist for the Various Components of Campus Safety and Security Compliance”

• We can use this checklist as a starting point for our audit instruments

Clery Compliance Considerations

• We must also look to Department of Education Final Program Review Determinations.

• The determinations give us insight into the standard that the DOE Program Review Team uses for their review.

Determination Findings

• From The Clery Center for Security on Campus training:o Inadequate Systems for Collecting Statisticso Failure to Report Crimes Based on Geographyo Improper Classification of Crimes and Incorrect

Reporting of Referralso Lack of or Inadequate Policy Statementso Failure to Publish and Distribute the ASR as a

Comprehensive Document

Call if you have questions

Dr. Jennifer Hammat

• Assistant Vice President for University Compliance Services UT Austin

• Title IX & Clery Coordinator• 512-232-3992• J.Hammat@Austin.utexas.e

du

Ms. Roxanne Hall

• Police Records Administrator for The University of Texas at Austin Police Department

• 512-232-9615• Roxanne.hall@austin.utexas

.edu