Title IX, Meet Clery – Clery, Meet Title IX From Compliance to Prevention Steven J. Healy Margolis...

Title IX, Meet Clery – Clery, Meet Title IX From Compliance to

Prevention

Steven J. HealyMargolis Healy &

Associates

© Margolis Healy & Associates, LLC

The Landscape

A sea change – • Renewed focus on the issues of

sexual and gender violence • Activism by students, faculty,

others• Survivor courage• Evolving legislation (Clery & TIX)• REALITY – The world is FLAT

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No – this is a TSUNAMI!

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The Landscape•The Clery Act: security policies and statistics

•October 26, 2010 DCL: Focus on bullying

•April 4, 2011 DCL: policies and procedures on sexual harassment and sexual violence

•Campus SaVE Act: adds 3rd category of crimes; codifies DCL

•April 24, 2013 DCL: Focus on retaliation

•Voluntary Resolution Agreements: NOT binding but part of evolving framework

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Resources• OCR 2001 Revised Sexual Harassment Guidance:

www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

• 2010 Dear Colleague letter on Harassment and Bullying: www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf

• April 2011 OCR Dear Colleague Letter: www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

• April 2013 OCR Dear Colleague Letter on Retaliation: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html

• 2011 Handbook for Campus Safety and Security Reporting http://www2.ed.gov/admins/lead/safety/handbook.pdf 6

http://www2.ed.gov/admins/lead/safety/handbook.pdf

http://www2.ed.gov/admins/lead/safety/handbook.pdf


Title IX

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.

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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 . . .”

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Overview of Mandates• Notice of Non-discrimination

• Title IX Coordinator

• Grievance Procedures

- Prompt and equitable

- Notice

- Adequate, reliable, and impartial investigation of complaints

- Designated and reasonably prompt time frames

- Notice of outcome9


Overview of Mandates

• Education and Prevention

• Remedies and Enforcement

• Training

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The Prevention Lens

COMPLIANCE IS IMPORTANT, BUT PREVENTION AND RESPONSE IS

MORE IMPORTANT

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Sexual Harassment Defined• Unwelcome conduct of a sexual nature

- includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, including sexual violence.

• Student-to-student harassment: - creates hostile environment if conduct is sufficiently

serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.

• The more severe the conduct, the less need there is to show a repetitive series of incidents to prove hostile environment, particularly if the harassment is physical (e.g. rape=hostile environment)12


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

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DCL Focus Points

• Interim measures

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DCL Focus Points

• Who is a “responsible employee”?

- What is the benefit of a responsible employee not meeting their obligation?

- What is the cost?

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DCL Focus Points

• Reluctant complainant – balance institutional need for safety with requests for confidentiality

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DCL Focus Points

• 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. Increased training efforts would be one possible response in this situation.

• OCR will likely respond positively to good faith efforts and actions.


DCL Focus Points

• Encouraging complaints by granting “amnesty” for other violations


DCL Focus Points

• Equity for both parties


DCL Focus Points

• The 60 day review


Points of Focus from the DCL

• Concurrent criminal and College investigations


Campus SaVE Act

• Part of VAWA Reauthorization Act

• Amends HEA “to improve education and prevention related to campus sexual violence, domestic violence, dating violence, and stalking”

• Codifies much of 2011 OCR DCL

• Effective March 2014 (good faith effort NOW)


Campus SaVE Definitions

• “Domestic violence” means crime of violence committed by spouse, cohabitant, parent of victim’s child, or similarly situated person

− as relationships/protections are defined under state domestic or family violence laws



• “Dating violence” means violence committed by a person Who is or has been in a social

relationship of a romantic or intimate nature with the victim

• Where the existence of such relationship is determined based on consideration of:

Length and type of relationship and

Frequency of interaction between persons involved



• “Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to: Fear for his or her safety or the

safety of others; or Suffer substantial emotional

distress


SaVE Requirements

• Develop and distribute in its Annual Security Report a statement of policy regarding:

Your programs to prevent domestic violence, dating violence, sexual assault, or stalking;

Procedures you’ll follow once an incident of domestic violence, dating violence, sexual assault, or stalking has been reported


SaVE Requirements

• Adopt and publish in ASR, policy statements re:

victim support resources

confidentiality

sanctions

interim protective measures

evidence preservation

reporting procedures

options for notifying law enforcement


Procedural Requirements

• Several disciplinary process procedural protections

• Some adapted from April 2011 DCL

• Applicable to cases involving student AND employee complainants


Procedural Requirements

• 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”

• Does that include legal counsel?


Anti-Retaliation Provision

No officer, employee, or agent of an IHE “shall retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights or responsibilities under any provision of this subsection”


Educational Requirements• Campus SaVE requires 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”


Campus SaVE Challenges

• Requires your IMMEDIATE attention

• Collaboration & Coordination are KEY

• Programming Resources


SaVE & TIX Challenges

• No such thing as “best practices”

Each institution is unique

Institutional values

Policies and procedures

Resources

Personnel

Public vs. Private

Culture

Challenges


Evolving Practices

• Independent Title IX Coordinator

• Coordinated response team

• Delineation of confidential resources vs. reporting options

• Integration of reporting responsibilities:

Responsible employee

Campus Security Authority

Mandatory Reporter of Suspected Child Abuse


Evolving Practices• Centralized reporting and review process

• Procedures for resolution that recognize:

Complainant autonomy/agency

Fundamental fairness

Remedies-based options

Sanctions-based options

• Communication and transparency to tend to the individual and community

• Consistent and on-going training


What to Do?

•Identify your team

•Assess your climate

•Assess your policies

•Assess your structure

•Train your FIRST responders

•Review prior cases

•Engage your community

Students

Faculty

Staff

Leadership

Local partners


Next Steps

• Make a plan with measurable action items:

Task Force

Consider external policy audit

Constituency survey

Programming Inventory

Training and education schedule

Borrowed in part from G. Smith & Leslie Gomez, PepperHamilton, LLP

YOUR FREE GUIDE TOCAMPUS SAFETY & SECURITY• Research and compare crime

data for over 4,400 schools• Access relevant safety resources• Plan for a safe spring break and

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Title IX, Meet Clery – Clery, Meet Title IX From Compliance to Prevention Steven J. Healy Margolis...

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