S E P T E M B E R 2 3 , 2 0 1 1

P E N N S Y L V A N I A C O M M U N I T Y C O L L E G E S

H A R R I S B U R G , P A

Title IX, Sexual Misconduct and

Bullying: New Concerns for

College Student Affairs Leaders

Objectives

Basic understanding of Title IX and its application to student on student sexual misconduct and bullying.

Awareness of contents and implications of Dear Colleague letters issued by ED OCR re: bullying and sexual misconduct.

Awareness of key issues to be addressed by colleges seeking to comply with Title IX with respect to policies and procedures applicable to bullying and sexual misconduct on college campuses.

Plain Language Disclaimers

This is not legal advice.

You and your college have a lawyer; I’m not

your lawyer.

This issue is very complicated.

Criminal, civil

On campus/off campus

Title IX, student conduct codes, criminal law, tort claims

Victim-centered vs. equitable vs. rights of the accused

Multi-jurisdiction

Multiple responses

Title IX Substantive Standards

Title IX of the Education Amendment of 1972, 20 U.S.C. §§ 1681*, et seq and implementing regs, 34 C.F.R. Part 106* prohibit discrimination on the basis of sex in federally financed education programs.

Sexual harassment, which includes sexual misconduct and bullying, can be sex discrimination prohibited by Title IX.

Harassment of LGBT students may constitute gender-based harassment that would violate Title IX. See Dear Colleague, October 2010*

Hostile Environment

“When a student sexually harasses another

student, the harassing conduct creates a hostile

environment if the conduct is sufficiently serious

that it interferes with or limits a student’s ability

to participate in or benefit from the program.”

2001 Guidance *, Dear Colleague Letter April

2011*

Scope of Coverage

Every aspect of a college’s education program and activities. Academic

Extracurricular

Athletic

Other programs of the college/on or off campus.

Third parties also protected.

“Consider effects of the off-campus conduct when evaluating whether there is a hostile environment on campus.” Dear Colleague April 2011*

Duty

“If a school knows or reasonably should know

about student-on-student harassment that

creates a hostile environment, Title IX requires

the school to take immediate action to

eliminate the harassment, prevent its recurrence

and address its effects.”

Dear Colleague April 2011*

Substantive Standards: Sexual Misconduct

Sexual misconduct or sexual violence is a form

of sexual harassment.

Sexual violence refers to “physical acts perpetrated

against a person’s will or where the person is incapable

of giving consent due to the victim’s use of drugs or

alcohol … or due to an intellectual or other disability.”

“A number of different acts fall into the category of

sexual violence, including rape, sexual assault, sexual

battery and forms of sexual coercion. All such acts of

sexual violence are forms of sexual harassment covered

by Title IX.”

Dear Colleague April 2011*

Substantive Standards: Bullying

Bullying is a form of harassment.

Harassing conduct may take many forms, including

verbal acts and name‐calling; graphic and written

statements, which may include use of cell phones or the

Internet; or other conduct that may be physically

threatening, harmful, or humiliating. Harassment does not

have to include intent to harm, be directed at a specific

target, or involve repeated incidents.

“If abusive behavior is on the basis of race, color,

national origin, sex or disability and creates a hostile

environment, the school is obligated to respond.”

Dear Colleague October 2010*

Title IX Procedural Requirements

Adopt and publish nondiscrimination policy.

Adopt and publish grievance procedures.

Provide for prompt and equitable resolution of complaints.

Designate person(s) to coordinate compliance with Title IX including investigations and adjudication.

Notify all parties of nondiscrimination policy, provide name and contact info for Title IX coordinator(s) and describe available procedures to resolve complaints.

Title IX Procedural Requirements

Title IX grievance process has different

objectives from university disciplinary processes.

Grievance process is focused on addressing

and remedying the complaints of the alleged

victim of discrimination.

Disciplinary process is focused on determining

guilt or innocence of person accused of

misconduct and implementing appropriate

sanction.

Both are different from criminal process.

Key Elements of Sexual Misconduct Policy

Defines sexual misconduct.

Not tied to criminal law definition.

Includes all non-consensual acts.

Includes sex-based cyber-harassment.

Defines consent.

No inference from silence or from current or past

relationship.

Intoxication is not an excuse for failure to get consent;

intoxication can render someone incapable of giving

consent.

Key Elements of Sexual Misconduct Policy

Explains difference between privacy and

confidentiality.

Protects privacy of all parties to the extent possible.

Confidentiality cannot be guaranteed.

Campus officials (except defined confidential resources)

who receive reports of sexual misconduct must share

with university or college official for

investigation/adjudication.

Makes clear that a request for anonymity or inaction can

hinder the institution’s ability to respond.

Key Elements of Sexual Misconduct Policy

Names person(s) to whom report of sexual misconduct or assault is to be made. Consider limiting number of individuals to whom official

reports can be made.

Prohibits retaliation or intimidation. Encourages reporting.

Makes clear that retaliation or intimidation can lead to additional sanctions.

Address “amnesty” for victims/witnesses.

Describes reporting options available to students. Criminal complaint, disciplinary action or both.

Key Elements of Sexual Misconduct Policy

Clarifies responsibilities of University Under Title IX States that university will initiate administrative

investigation under Title IX regardless of option the student chooses.

Indicates that administrative action may be deferred at request of complainant choosing to file criminal complaint if the accused does not present an imminent threat.

Administrative investigations must result in written investigative reports that meet certain standards. Notre Dame Resolution Agreement*

Investigations must be complete in 60 days, except in extraordinary circumstances.

Key Elements of Sexual Misconduct Policy

Describes disciplinary process.

Can be formal/informal but mediation is not acceptable for

sexual assault cases.

Equal notice.

Same opportunities to have others present and to present witnesses and information.

Alternative arrangements if complainant doesn’t want to be in

hearing room with accused.

Past conduct of complainant not at issue except relevant to consent where parties had a prior sexual relationship.

Both parties informed of outcome.

Both parties have opportunity for review of decision on same

terms (e.g., procedural flaw).

Key Elements of Sexual Misconduct Policy

Describes other available resources.

Equally available to victim and accused.

Medical, counseling, pastoral care (confidential).

Sexual violence program advocate or designated on

campus coordinators (confidential?)

Sexual assault response team (SART), on-campus or off

campus

Key Elements of Sexual Misconduct Policy

Describes temporary, intermediate and

permanent relief available to victim.

No contact orders.

Academic adjustments.

Change in housing/dining arrangements.

Extracurricular activities.

Institution has responsibility to bring

discrimination to an end; take steps reasonably

calculated to prevent future occurrence;

restore victim to pre-deprivation status

Communication/Education/Awareness Issues

Education about sexual violence (common myths,

common circumstances) Prevention programs, e.g., Red Flag Campaign on Dating

Violence*

Effective dissemination of policy and procedures. Efficient resource (i.e., information gathered in one

document/one place)

Multi-format (on-line, student handbook, student newspaper,

in-person programming, new student orientation)

Targeted (specific programs for specific populations, e.g.,

athletes.

Provide written materials to complainant within 24 hours.

Communication/Education/Awareness Issues

Ongoing evaluation of effectiveness of

communication and of investigations and

adjudications.

Warnings to campus when there is a serious,

ongoing threat.

Training Requirements

Training for all involved in investigation and

adjudication of Title IX sexual misconduct

complaints including investigators, fact-finders,

decision-makers.

Training for any employees likely to witness or

receive reports of sexual harassment or sexual

violence re: policy and procedures, reporting

options.

“Legal” Issues

Jurisdiction

On-campus/off-campus conduct by students, especially

against other students.

Statute of Limitations

Time allowed to file complaint.

Specific number of days or duration of student status?

Standard of Evidence

Preponderance of the evidence vs. clear and

convincing vs. beyond a reasonable doubt

Preponderance must be used in Title IX procedures.

“Legal” Issues

Judicial standard for monetary liability

Recipient had “actual knowledge” of

discrimination/harassment;

Recipient was “deliberately indifferent” to known acts of

harassment;

Harassment was so “severe,” “pervasive” and

“objectively offensive” that it “can be said to deprive the

victims of access to the educational opportunities or

benefits provided by the school.” Davis case*

Context matters… subject to the recipient’s “control”

over the victim, the accused and the circumstances.

“Legal” Issues

OCR standard of liability is less stringent.

“Sufficiently severe, pervasive or persistent to interfere

with or limit a student’s ability to participate or benefit.”

A single act of rape can establish the existence of a

hostile environment.

College is “responsible for addressing harassment

incidents about which it knows or should have known.”

Notice To Students

Clear policies.

Who is protected?

What conduct is prohibited?

Accessible procedures.

What is the role of the Title IX coordinator?

Where does a student file a complaint?

Effective communication.

Do students know their rights?

How do you know?

Obligation to Respond

Absence of a formal complaint.

Requests for confidentiality.

Off campus conduct.

Not just a criminal case.

Prompt and Effective Response

What is needed to protect community and end discrimination?

What is prompt?

Formal/informal procedures.

Effect of police/criminal investigations.

Standard of proof.

Equal opportunity to present relevant evidence and witnesses.

Required training of investigators and judicial officers.

Resources

Title IX Bookmarks: Law, Regulation, Cases, Model

and Campus Policies, Research Reports

www.delicious.com/CG2LegalStrategies

Claire Guthrie Gastañaga

cgg@cg2consulting.com

804-521-4067

This presentation is

copyrighted but may

be used or quoted

with attribution.

©2011 Changeservant,

LLC