1. SEPTEMBER 23, 2011 PENNSYLVANIA COMMUNITY COLLEGES HARRISBURG, PA Title IX, Sexual Misconduct and Bullying: New Concerns for College Student Affairs Leaders

2. 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.

3. 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

4. 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*

5. 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*

6. 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*

7. 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*

8. 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*

9. 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*

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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).

17. 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

18. 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

19. 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.

20. 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.

21. 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.

22. “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.

23. “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.

24. “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.”

25. 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?

26. Obligation to Respond Absence of a formal complaint. Requests for confidentiality. Off campus conduct. Not just a criminal case.

27. 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.

28. Resources Title IX Bookmarks: Law, Regulation, Cases, Model and Campus Policies, Research Reports www.delicious.com/CG2LegalStrategies

29. Claire Guthrie Gastañaga cgg@cg2consulting.com 804-521-4067 cgg@cg2consulting.com This presentation is copyrighted but may be used or quoted with attribution. ©2011 Changeservant, LLC