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

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Presentation on theme: "Title IX, Meet Clery – Clery, Meet Title IX From Compliance to Prevention Steven J. Healy Margolis Healy & Associates."— Presentation transcript:

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

2 © 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 2

3 © Margolis Healy & Associates, LLC No – this is a TSUNAMI! 3

4 © Margolis Healy & Associates, LLC

5 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 3 rd category of crimes; codifies DCL April 24, 2013 DCL: Focus on retaliation Voluntary Resolution Agreements: NOT binding but part of evolving framework 5

6 © Margolis Healy & Associates, LLC 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 pdf April 2011 OCR Dear Colleague Letter: www2.ed.gov/about/offices/list/ocr/letters/colleague pdf April 2013 OCR Dear Colleague Letter on Retaliation: html 2011 Handbook for Campus Safety and Security Reporting 6

7 © Margolis Healy & Associates, LLC 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. 7

8 © Margolis Healy & Associates, LLC 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 § : “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...” 8

9 © Margolis Healy & Associates, LLC 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 outcome 9

10 © Margolis Healy & Associates, LLC Overview of Mandates Education and Prevention Remedies and Enforcement Training 10

11 © Margolis Healy & Associates, LLC The Prevention Lens COMPLIANCE IS IMPORTANT, BUT PREVENTION AND RESPONSE IS MORE IMPORTANT 11

12 © Margolis Healy & Associates, LLC 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

13 © Margolis Healy & Associates, LLC 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 13

14 © Margolis Healy & Associates, LLC DCL Focus Points Interim measures 14

15 © Margolis Healy & Associates, LLC DCL Focus Points Who is a “responsible employee”?  What is the benefit of a responsible employee not meeting their obligation?  What is the cost? 15

16 © Margolis Healy & Associates, LLC DCL Focus Points Reluctant complainant – balance institutional need for safety with requests for confidentiality 16

17 © Margolis Healy & Associates, LLC 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.

18 © Margolis Healy & Associates, LLC DCL Focus Points Encouraging complaints by granting “amnesty” for other violations

19 © Margolis Healy & Associates, LLC DCL Focus Points Equity for both parties

20 © Margolis Healy & Associates, LLC DCL Focus Points The 60 day review

21 © Margolis Healy & Associates, LLC Points of Focus from the DCL Concurrent criminal and College investigations

22 © Margolis Healy & Associates, LLC 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)

23 © Margolis Healy & Associates, LLC 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

24 © Margolis Healy & Associates, LLC Campus SaVE Definitions “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

25 © Margolis Healy & Associates, LLC Campus SaVE Definitions “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

26 © Margolis Healy & Associates, LLC 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

27 © Margolis Healy & Associates, LLC 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

28 © Margolis Healy & Associates, LLC Procedural Requirements Several disciplinary process procedural protections Some adapted from April 2011 DCL Applicable to cases involving student AND employee complainants

29 © Margolis Healy & Associates, LLC 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?

30 © Margolis Healy & Associates, LLC 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”

31 © Margolis Healy & Associates, LLC 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”

32 © Margolis Healy & Associates, LLC Campus SaVE Challenges Requires your IMMEDIATE attention Collaboration & Coordination are KEY Programming Resources

33 © Margolis Healy & Associates, LLC 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

34 © Margolis Healy & Associates, LLC 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

35 © Margolis Healy & Associates, LLC 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

36 © Margolis Healy & Associates, LLC 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

37 © Margolis Healy & Associates, LLC 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

38 YOUR FREE GUIDE TO CAMPUS SAFETY & SECURITY Research and compare crime data for over 4,400 schools Access relevant safety resources Plan for a safe spring break and travel abroad experience Get breaking campus safety and security-related news


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