sexual assault on campus: title ix compliance and related

11/10/2015

1

Sexual Assault on Campus: Title IX Compliance and

Related Legal Issues

Jim Newberry Bill ThroMember General CounselSteptoe & Johnson PLLC University of [email protected] [email protected] 859.257.2936

Title IX Complexity

Title IX Complaint

Criminal Investigation

Public Relations

Student Code

Faculty/Employee Discipline

OCR Supervision

Litigation

Policy Changes

Title IX Investigation

11/10/2015

2

Course Overview

• Course Description• Learning Outcomes

‒ Understanding essential elements of a compliant sexual misconduct policy

‒ Identifying campus stakeholders who need to be involved

‒ Developing a process to involve stakeholders

Potential Title IX Stakeholders

Board

President

VP/Enrollment Management

VP/Student Affairs

Residence Life

Student Health Service

VP/Academic Affairs

VP/Business Affairs

HR Director

Campus Safety

VP Advancement

Communications

Development

AD

General Counsel Faculty

11/10/2015

3

Agenda Overview

• Overview – Legal Context– Political Context– Three-Step Policy Development

Process

Agenda Overview

• Essential Elements of a Compliant Sexual Misconduct Policy– Introduction– Scope of Policy– Options for Assistance– Title IX Coordinator– Definitions– Reporting Policies (including confidentiality)– Investigating Procedures and Protocols

11/10/2015

4

Agenda Overview

• Break• Completing the Elements

– Grievance/Adjudication Procedures– Prevention and Education– Training

• Pulling It All Together– Drafting Techniques– Identifying Campus Stakeholders– Involving Campus Stakeholders– Audit/External Assessment

Legal Context

• Statute & Regulations• Guidance

– 2001– 2011– 2014

• VAWA

11/10/2015

5

Political Context - 2014

• Task Force Report - April 29• Policy Checklist - April 29• VAWA Regulations - June 20• Proposed Campus Accountability and Safety

Act - July 30• NFL - Pick a Date• Penn State/NCAA Bowl Ban - September 8• White House Announcement - September 19

Political Context - 2014

• Florida State – Multiple Dates• University of Florida – October• University of Kentucky - October• University of Virginia

– November 19 Rolling Stone Story– December 5 Rolling Stone “Retraction”

• SMU & Harvard VRAs – December

11/10/2015

6

Political Context – A Month in 2015

• Jan. 6 – UVa releases new fraternity safety rules• Jan. 7 – OCR updates list of institutions under

investigation• Jan. 17 – NY Gov. announces support for

including privates in “yes means yes”• Jan. 22 – 28 universities announce participation

in AAU climate survey• Jan. 23 – “Hunting Ground” premiers at Sundance

Film Festival

Political Context – A Recent Month

• Jan. 26 - White House Task Force releases sample MOU for local law enforcement

• Jan. 26 - VA Senate approves legislation requiring public college employees to report sexual assaults to police

• Jan. 27 - UE report shows 104 colleges spent $17M to deal with sexual assault claims

• Jan. 27 – Vandy convictions• Jan. 29 – Dartmouth bans hard alcohol and starts

sexual violence prevention program

11/10/2015

7

Developing Policy Provisions

1. Develop master checklist of each required or suggested item from sources‒ Note source of item for future reference‒ Note whether item is required (“must”)

or suggested (“should”)

Title IX Checklist

Item No. Issue Yes/

NoRequired/ Suggested

Source of Obligation

Guidance Category

Checklist Section

1. Does policy require school to take immediate and appropriate steps to investigate or otherwise determine what happened when school knows or reasonably should know of possible sexual violence?

R 2014 Q&A, A-5 and D-2; 2011 DCL, p. 4.

School's Obligation

01. Introduction

2. Does policy require school to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects?

R 2014 Q&A, A-5, D-2 and J-2; 2011 DCL, p. 4.

School's Obligation

01. Introduction

11/10/2015

8


1. Develop master checklist of each required or suggested item from sources‒ Note source of item for future reference‒ Note whether item is required (“must”)

or suggested (“should”)2. Categorize each checklist item by sections

identified in model sexual misconduct policy outline

Model Policy Outline

1. Introduction 6. Reporting Policies and Protocols

2. Scope of Policy 7. Investigation Policies and Protocols

3. Options for Assistance Following an Incident of Sexual Misconduct

8. Grievance/Adjudication Procedures

4. Title IX Coordinator 9. Prevention and Education

5. Definitions 10. Training

11/10/2015

9

Title IX Checklist

Item No. Issue

Yes/ No

Required/ Suggested

Source of Obligation

Guidance Category

Checklist Section

1. Does policy require school to take immediate and appropriate steps to investigate or otherwise determine what happened when school knows or reasonably should know of possible sexual violence?

R 2014 Q&A, A-5 and D-2; 2011 DCL, p. 4.

School's Obligation

01. Introduction

2. Does policy require school to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects?

R 2014 Q&A, A-5, D-2 and J-2; 2011 DCL, p. 4.

School's Obligation

01. Introduction


1. Develop master checklist of each required or suggested item from sources‒ Note source of item for future reference‒ Note whether item is required (“must”) or

suggested (“should”)2. Categorize each checklist item by sections

identified in model sexual misconduct policy outline

3. Draft your institution’s sexual misconduct policy following the outline

11/10/2015

10


So how will thecompleted policy look?

The Completed Policy!

11/10/2015

11

Introduction

• Prompt and effective steps to end sexual violence

• Immediate and appropriate steps to investigate, including same-sex offenses

• Dissemination of notice of non-discrimination, including TIXC contact info

• Protect the complainant• Policies prohibiting inappropriate conduct

by personnel

Scope of Policy

• Policy applies to all students, employees and third-parties, regardless of sexual orientation or gender identity

• Describe geographic scope of policy• Describe relationships covered and those

excluded• Brief description of confidentiality policy• Include website disclosure requirements

11/10/2015

12

Options for Assistance

• Policy must cover sexual misconduct both on and off campus

• Policy must describe immediate response services available to complainant

• School must provide interim protection for complainants of sexual misconduct

• Policy must provide for counseling and support services without charge to victims

Options for Assistance

• On-campus advisor/counselor for immediate assistance

• Rape crisis center--MOU• Police assistance--MOU• Counseling services--MOU• Schedule/dormitory changes• Advocate/advisor during investigation,

disciplinary action

11/10/2015

13

Title IX Coordinator

• School must designate and train TIXC• Title IX Coordinator has appropriate authority• Name and contact information for

Coordinator published on website, handouts, etc.

• Provide training for students, faculty, and staff• All complaints reported to Title IX Coordinator

Title IX Coordinator

• Remedies made available• Oversees investigations• Monitoring and advising• Prohibition on interfering with TIXC’s work• Position must always be filled

11/10/2015

14

Definitions

• Consent• Dating Violence• Domestic Violence• Stalking• Responsible Employee• Retaliation

Reporting Policies

• Policy must state who is responsible for reporting complaints of sexual misconduct

• Are responsible employees notified of reporting requirement?

• Are responsible employees trained on their duties, including when and what to report and confidentiality requirements?

• Retaliation prohibited• Notification to complainant required• Clery Act reporting

11/10/2015

15

Investigation Procedures

• Require school to resume investigation when law enforcement has completed the evidence-gathering stage of criminal investigation

• Require school to process all complaints regardless of whether conduct occurred on campus to determine if conduct occurred in context of ed program

• Require school to process all complaints regardless of whether conduct occurred on campus to determine if conduct had continuing effects on campus or in an off-campus ed program


• Require school to treat complaints of off-campus sexual violence the same as on-campus complaints

• If off-campus sexual violence did not occur in the context of ed program, does policy still require school to consider whether the alleged misconduct has contributed to a hostile environment on or off-campus?

11/10/2015

16


• Require school to assess whether off-campus sexual violence creates continuing effects on ed programs on or off campus that create a hostile environment and, if so, to treat it the same as an on-campus hostile environment

• Specify process for preserving evidence• Provide for immediate interim steps to

protect complainant pending final outcome of investigation


• Specify types of interim academic accommodations

• Require school to immediately investigate any form of retaliation against complainant

11/10/2015

17

Break!

Group Discussion

Reports and Investigations

11/10/2015

18

Grievance/Adjudication - Overview

• Notice Requirements• Hearing Requirements• Appeals• Remedies & Post-Appeal Requirements

Grievance/Adjudication - Notice

• Adopt and publish procedures providing for prompt and equitable resolution of complaints

• Provide notice to students of the grievance process, including where to file complaints

• Provide for the application of procedure to complaints by students

• Provide for adequate, reliable, and impartial complaint investigation

11/10/2015

19


• Include statement of school’s jurisdiction over Title IX complaints

• Include definitions of sexual harassment and explanation of hostile environment

• Include reporting policies and protocols• Identify employee(s) responsible for evaluating

confidentiality requests• Provide notice that Title IX prohibits retaliation


• Provide notice of student’s right to file criminal and Title IX complaints simultaneously

• Provide notice of interim measures to protect student in educational setting

• Provide notice of potential remedies for complainants

• Provide notice of potential sanctions against perpetrators

• Provide sources of counseling, advocacy, and support

11/10/2015

20


• Provide prompt and equitable resolution of complaints

• Require school to adopt and publish grievance procedures

• Notify students and employees of procedures

• Require grievance procedures be applied to sex discrimination complaints filed by students against employees, other students, or third parties


• Require adequate, reliable, and impartial investigation of complaints, including opportunity for both parties to present witnesses and other evidence

• Require grievance procedures be applied to harassment complaints filed by students against employees, other students, or third parties

• Designate reasonably prompt time frames for major stages of the process

• Require proceedings provide a prompt, fair and impartial investigation and resolution

11/10/2015

21

Grievance/Adjudication - Hearing

• Establish preponderance of evidence as standard in resolving complaints

• Identify the persons who may attend and/or participate at hearing and the extent of their participation

• Provide equal opportunity to present expert testimony


• Provide equal opportunity for parties to be present at the hearing

• Permit hearing to proceed if complainant chooses not to attend

• Provide an equal opportunity to cross-examine witnesses

11/10/2015

22


• Provide equal opportunity for parties to present evidence and witnesses

• Provide equal opportunity for parties to be represented by counsel

• Impose equal restrictions on the ability of lawyer or other advisors to participate

• Provide parties with similar and timely access to information used at hearing

• Provide alleged perpetrator with due process (if school is state-supported)


• Require hearing be conducted by officials who receive annual training on:– Issues relating to:o Domestic violenceo Dating violenceo Sexual assaulto Stalking

– How to conduct an investigation and hearing process to protect victim safety and promote accountability

11/10/2015

23

Grievance/Adjudication - Appeals

• Provide equal opportunity for appeals• Provide both parties with written notice of how

either party may appeal

• Require same type of appellate review for both parties

Grievance/Adjudication - Appeals

• Describe appellate procedures– Grounds– Standards for review– Person or entity who will hear the appeal– Reasonably prompt time frames

• Provide notice to both parties about outcome of appeal in writing

11/10/2015

24

Grievance/Adjudication - Remedies

• Provide written notice to parties of outcome of complaint and any appeal

• Notify complainant of:– Whether alleged conduct occurred– Any remedies offered complainant– Any sanctions imposed on perpetrator as a direct

result of the complaint– Steps taken to eliminate hostile environment, if one

exists, and prevent recurrence


• Notify complainant of right to terminate informal complaint resolution efforts at any time to proceed with formal process

• Provide continuing protection for complainant after determination that violation occurred

• Provide remedies for complainant and broader student population when perpetrator is not affiliated with school

• Explain the results of the adjudication process, including remedies for complainant and for school community

11/10/2015

25


• Require notice to parties of any change in hearing results that occurs prior to results being final

• Require notice to parties when results become final

• Provide assurance that school will take steps to prevent recurrence and remedy effects

• Prohibit school from requiring party to abide by nondisclosure agreement as to hearing outcome

Complaint

Grievance/Adjudication

11/10/2015

26

Complaint

Investigation


Complaint

InvestigationProbable

Cause Determination


11/10/2015

27


• If no probable cause, matter dismissed• If probable cause is found and:

‒ If facts are disputed, hearing is scheduled to resolve the factual disputes, or

‒ If facts are not disputed, remedies and sanctions are imposed

Complaint

InvestigationProbable

Cause Determination

Informal Resolution


11/10/2015

28

Complaint

Investigation

Probable Cause

Determination

Informal Resolution

Hearing on Factual

Disputes



• Hearing Officer‒ Must be trained annually‒ May be lawyer but not required

• Hearing Board‒ Must be trained annually‒ Could involve multiple interests from

campus community‒ Must be committed to multiple hearings

if needed

11/10/2015

29

Complaint

Investigation

Probable Cause

Determination

Informal Resolution

Hearing on Factual

Disputes

Proposed Findings &

Conclusions


Complaint

Investigation

Probable Cause Determination

Informal Resolution

Hearing on Factual

Disputes

Proposed Findings &

ConclusionsRuling by VPSA


11/10/2015

30

Complaint

Investigation


Informal Resolution

Hearing on Factual

Disputes

Proposed Findings &


Appeal to President


Complaint

Investigation


Informal Resolution

Hearing on Factual

Disputes

Proposed Findings &


Appeal to President

Final Decision


11/10/2015

31

Group Discussion

Grievance/Adjudications

Prevention & Education

• Policy must be communicated to everyone• Title IX coordinator must be identified and

contact information provided• School must have a sexual violence

prevention and education program in place

11/10/2015

32

Training

• Mandatory training for new students and employees

• Title IX coordinator must be trained regarding policy, reporting, response, counseling services, disciplinary proceedings, prevention, cooperation with other school authorities

• Responsible employees must be trained regarding reporting of complaints

• Students trained on prevention, complaint procedure, available services

Drafting Techniques

• Use different font colors to specify whether a policy provision is:‒ Required (with no institutional

flexibility)‒ Suggested (with much institutional

flexibility)‒ Neither required nor suggested (with

total flexibility)

11/10/2015

33

Drafting Techniques

• Use different font colors to specify whether a policy provision is:‒ Required (with no institutional flexibility)‒ Suggested (with much institutional flexibility)‒ Neither required nor suggested (with total

flexibility)• Use footnotes for each required or suggested

provision to provide link to the source document

Drafting Techniques

• Timing‒ Short-Term Need – Interim compliant

policy ASAP‒ Long-Term Needso Campus buy-in to overall effort to

reduce sexual misconducto Permanent compliant policy

11/10/2015

34

Drafting Techniques

• Timing‒ Short-Term Need – Interim compliant

policy ASAP‒ Long-Term Needso Campus buy-in to overall effort to

reduce sexual misconducto Permanent compliant policy

• Interested and Necessary Stakeholders

Documents You Need Now

• Grievance Procedure• MOUs

‒ Local rape crisis center‒ Local law enforcement

• Responsible Employee Guidelines• Confidentiality Policy (if not integrated into

Sexual Misconduct Policy)

11/10/2015

35

Potential Title IX Stakeholders

Board

President


VP/Student Affairs

Residence Life


VP/Academic Affairs

VP/Business Affairs

HR Director

Campus Safety

VP Advancement

Communications

Development

AD


Title IX Stakeholders

Board

President


VP/Student Affairs

Residence Life


VP/Academic Affairs

VP/Business Affairs

HR Director

Campus Safety

VP Advancement

Communications

Development

AD


11/10/2015

36

Approach for Stakeholders

UpdatePresident &

Board


Update President & Board

Implement interim policy (and

announce process)

11/10/2015

37


UpdatePresident &

Board

Implement interim policy

Create broad-based task

force

Potential Task Force Members

• VP/Academic Affairs• VP/Student Affairs• VP/Business Affairs• AD• HR Director• Residence Life Director• Student Health Director• Campus Safety Director

11/10/2015

38

Potential Task Force Members

• General Counsel• Faculty Chair• Other Faculty Representatives• Student Government President• Athletes• Greek Life Representatives• Parents/Alumni/Community Leaders• Title IX Coordinator

Approach for Engaging Stakeholders

UpdatePresident &

Board



force

Assess problem with climate survey

11/10/2015

39


UpdatePresident &

Board



force


Educate task force members


UpdatePresident &

Board



force



Prepare draft using interim policy/survey

11/10/2015

40


UpdatePresident &

Board



force




Conduct campus forums


UpdatePresident &

Board



force





Revise draft

11/10/2015

41


UpdatePresident &

Board



force





Revise draft

Implement permanent

policy

Thank You!

11/10/2015

42

Sexual Assault on Campus: Title IX Compliance and

Related Legal Issues

Jim Newberry Bill ThroMember General CounselSteptoe & Johnson PLLC University of [email protected] [email protected] 859.257.2936