Title IX & Sexual Assault

Lara S. Kaufmann

Senior Counsel & Director of Education Policy for At-Risk Students

National Women’s Law Center

Dana Bolger

Founding Co-Director

Know Your IX January 29, 2015

• Welcome!

• This webinar explains the basics of Title IX as it applies to sexual harassment and assault.

• We will talk about the legal options available to survivors under Title IX, and will get into some specifics on how to file a complaint through the Department of Education’s Office of Civil Rights (OCR) complaint process.

INTRODUCTION

• Title IX is a federal law that prohibits all sex discrimination in

federally funded education programs or activities, which includes all public schools, colleges and universities and most private schools as well.

• The ban on sex discrimination includes sexual harassment

and sexual assault. • Title IX applies to students, school employees, or anyone

present on campus regardless of sexual orientation, gender identity, immigration status, or disability status.

WHAT IS TITLE IX?

Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.

Sexual violence, including sexual assault, is an extreme form of sexual harassment prohibited by Title IX.

Sexual assault refers to physical sexual acts done against a person’s will or when a person is incapable of consenting. This can include situations in which a person is unable to give consent due to drug or alcohol use.

Department of Education’s Office for Civil Rights (OCR) OCR is the primary federal agency responsible for enforcing Title IX. It handles complaints on behalf of individuals or groups, reviews schools’ policies and practices to see whether they are following Title IX, and helps schools understand their legal obligations.

DEFINITIONS

• Sexual harassment, including sexual assault, can violate

students’ civil right to an education free from discrimination on the basis of sex.

• Title IX focuses on a school’s responsibility to ensure that everyone has equal access to educational opportunities.

• Sexual harassment and assault can also constitute civil and criminal offenses under other laws, and those offenses can lead to an investigation by law enforcement, penalties, and jail time.

TITLE IX, CRIMINAL LAW, AND CIVIL LAW

THE CLERY ACT

• The Clery Act requires colleges to disclose information about crime on and around their campuses.

• Schools must:

• Publish an annual security report that includes statements of their policies and procedures

• Keep a public crime log

• Disclose crime statistics for incidents that occur on campus and at some off-campus facilities.

THE CLERY ACT

• In 2013, the Violence Against Women Act (VAWA) amended the Clery Act and added requirements that schools publicly report information about various policies and programs, including:

• Prevention and education programs

• Grievance and disciplinary procedures

• Confidentiality policy

• Victim services

• In fall 2014, the Department of Education issued a set of regulations to implement these changes.

ALL SCHOOLS MUST TAKE STEPS TO PREVENT HARASSMENT AND ASSAULT

Regardless of whether a report of harassment or assault has been made, a school must comply with the following basic requirements under Title IX:

•Distribute a Notice of nondiscrimination to all students, such as by posting it on their website or in publications.

•Designate a Title IX Coordinator and make sure the school community knows how to reach her or him.

ALL SCHOOLS MUST TAKE STEPS TO PREVENT HARASSMENT AND ASSAULT

• Grievance procedures. Schools must adopt and publish procedures for handling all complaints of sexual harassment and assault.

• Training. School employees must receive effective training on how to recognize and report harassment. Students should too.

• Monitoring. Schools should monitor campus safety through accurate record-keeping and periodic assessments of campus climate.

ALL SCHOOLS MUST HAVE A PROCESS TO RESOLVE COMPLAINTS OF SEXUAL HARASSMENT AND ASSAULT

• This process, commonly called a “grievance process,” enables students to file complaints and get a resolution from the school.

• The school must widely distribute the grievance procedures and explain how to file a complaint and what to expect.

• The school’s resolution of a student’s complaint must be prompt and equitable.

WHEN SEXUAL ASSAULT OR SEXUAL HARASSMENT IS REPORTED, A SCHOOL MUST RESPOND

• Once it becomes aware of an incident, the school must take the following steps right away, even if its investigation has not started yet:

• Tell the survivor how to file a Title IX complaint if she chooses, and how to report an incident to law enforcement if she so chooses;

• Offer services that are available to survivors; and

• Offer accommodations the school can make to ensure that the complainant feels safe.

• The school must try to minimize the burden on the complainant/survivor.

CONFIDENTIALITY

• In general, school counselors and victim advocates can keep conversations with survivors confidential.

• However, other school employees—sometimes called “responsible employees”—must report identifying information to the school.

• The school must make clear who these employees are. Any “responsible employee” must make their reporting obligations clear before a survivor reveals information she may want to remain confidential.

• Once a survivor has made a report, the school is still required to maintain confidentiality to the greatest extent possible.

WHEN A COMPLAINT OF SEXUAL ASSAULT OR SEXUAL HARASSMENT IS MADE, A SCHOOL MUST INVESTIGATE

• When a student files a complaint with the school, even for a sexual assault occurring off campus during a non-school activity, the school must promptly investigate.

• If the investigation reveals (or if a school otherwise becomes aware or should know) that the conduct has created a “hostile environment,” it must take immediate and effective action to address the problem.

SCHOOL INVESTIGATION AND POLICE INVESTIGATION

• When a school learns of a possible sexual assault, it must immediately begin conducting an investigation that is prompt, thorough, and impartial.

• Even if the police are conducting an investigation, a school is required to conduct its own investigation.

• While a school may delay its investigation while the police are gathering evidence, it may not wait for the outcome of the police investigation before beginning its own investigation, nor may the school abandon its own investigation if the police decline to take action.

THE GRIEVANCE PROCESS

All schools are required to:

•Widely disseminate information about the grievance process and how to file a complaint,

•Resolve complaints in a way that is:

• Adequate

• Reliable

• Impartial

THE GRIEVANCE PROCESS

• All school officials taking part in the process must be trained and impartial.

• Both parties must be treated equally, and have an equal opportunity to present evidence, including witnesses. Both parties must have equal, timely access to information that will be used at the hearing.

THE GRIEVANCE PROCESS

• Questioning about the survivor’s sexual history, except with the alleged perpetrator, is not permitted.

• The school must decide claims by the preponderance of the evidence, meaning that it must determine whether it is more likely than not (at least 51% likely) that the alleged conduct occurred.

THE GRIEVANCE PROCESS

Timeframes

A school must notify the complainant of time frames of the major stages of the complaint process, and these time frames must be prompt.

Your school must tell the complainant:

• How long it will take to complete a full investigation of the complaint (the recommended time is 60 days)

• When it will inform both parties of the outcome; and

• The time in which to appeal (if available).

THE GRIEVANCE PROCESS

The Resolution

•The school must inform you, in writing, of the outcome.

•The school must provide you with any information necessary to remedy the hostile environment and prevent further harassment.

•The school must take steps to prevent harassment from recurring.

LEGAL OPTIONS

If you believe that your school is not in compliance with Title IX, here are some of the options you have:

•Go to your school’s Title IX Coordinator and/or write a letter to your school pointing out the ways it is not in compliance with Title IX.

•File a complaint with the Department of Education’s Office of Civil Rights (OCR). You do not need a lawyer to do this.

•File a civil lawsuit in federal court.

WHEN DOES SEXUAL HARASSMENT RISE TO THE LEVEL OF A “HOSTILE ENVIRONMENT” UNDER TITLE IX?

Legally speaking, the definition of “hostile environment” for Title IX purposes depends on the relief the student is seeking.

If:

•You are filing a complaint with OCR, or

•You are bringing a lawsuit against your school solely to get the school to change its policies,

(1) The legal standard is whether sexual assault and sexual harassment is severe or pervasive enough to interfere with a student’s education or participation in a school program (including extracurricular activities and sports).

(2) If the answer to that question is “yes” and the school knew or reasonably should have known about the harassment/assault, then it will be liable if it does not take effective action to stop it, remedy it, and prevent it from recurring.

WHEN SEXUAL HARASSMENT BECOMES A “HOSTILE ENVIRONMENT”

If, on the other hand,

•You are bringing a lawsuit in federal court against your school seeking money damages,

(1) the court will ask whether the sexual assault and sexual harassment is severe, pervasive, and objectively offensive enough to interfere with a student’s education.

(2) the court also will ask whether the school had “actual notice” of this hostile environment and acted “deliberately indifferent” to it.

FILING A COMPLAINT WITH OCR

• Anyone can file a Title IX complaint.

• You must file a complaint within 180 days of the date of the most recent harassment (this requirement can be waived in certain circumstances).

• Your confidentiality is guarded, with some narrow exceptions.

• It is illegal for your school to retaliate against you for filing a complaint with OCR, even if you aren’t the person experiencing harassment.

ABOUT THE OCR PROCESS

• If OCR decides to investigate the complaint, it will notify you and your school.

• OCR will then collect and analyze evidence from you, your school, and possibly others.

• Ultimately OCR will issue a “letter of findings.”

• The OCR process takes time—at least 180 days and often much longer.

• You have 60 days to appeal OCR’s decision.

ABOUT THE OCR PROCESS

Voluntary Resolution Agreements

•Before issuing a “letter of findings,” if OCR finds your school in violation of Title IX, it will contact your school to negotiate a “voluntary resolution agreement.”

•This agreement lays out specific steps your school must take in order to come into compliance.

•It must be completed within 90 days

•After the “resolution agreement” goes into effect, OCR will monitor your school for a period of time.

OCR PROCESS: EARLY COMPLAINT RESOLUTION

• Voluntary

• Both parties must agree

• OCR staff – not the same person assigned to investigate your matter – will facilitate a settlement between you and your school.

• You can reject the outcome of this negotiation.

OCR PROCESS: TIPS FOR FILING

• Tell your story clearly and succinctly, following chronological order.

• If you know of others who have experienced sexual assault or harassment at your school, encourage them to join your complaint.

• Explain how sexual assault and harassment has affected your life and education.

• Include information about witnesses, if any.

• Explain what you would like your school to do as a result of your complaint—what changes you are seeking.

FILING A LAWSUIT

• Lawsuits offer different remedies, but the legal standards are harder to meet.

• You don’t need to file a complaint with OCR before you file a Title IX lawsuit, but once you file a lawsuit, OCR will not proceed with your complaint.

• Complaints with OCR and lawsuits each have their own time limits.

• Litigation can be costly and time-consuming, but a strong case can make an important impact. If you’re considering filing a lawsuit, talk with a lawyer.

CONTACT US

If you have further questions or need help, please contact the National Women’s Law Center at:

info@nwlc.org, or (202) 588-5180.

For more on our work on school sexual harassment and assault, go to http://www.nwlc.org/our-issues/education-%2526-title-ix/sexual-harassment-%2526-assault

For “Myths and Facts” about Title IX and campus sexual assault, go to http://www.nwlc.org/sites/default/files/pdfs/fire_talking_points.pdf

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• Proactively educate survivors about their rights

• Anticipate financial barriers to educational access, justice, and safety • Protect survivors of all genders • Protect survivors of all forms of gender-based and sexual violence • Center survivors in your school’s policy-making process • Invest in community support services

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