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

2. 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. No – this is a TSUNAMI! 3

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

6. 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. Title IX
Title IX of the Education Amendments of (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. 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. 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. Education and Prevention Remedies and Enforcement Training
Overview of Mandates
Education and Prevention
Remedies and Enforcement
Training 10

11. COMPLIANCE IS IMPORTANT, BUT PREVENTION AND RESPONSE IS MORE IMPORTANT
The Prevention Lens
COMPLIANCE IS IMPORTANT, BUT PREVENTION AND RESPONSE IS MORE IMPORTANT 11

12. 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. 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. DCL Focus Points
Interim measures 14

15. Who is a “responsible employee”?
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. DCL Focus Points
Reluctant complainant – balance institutional need for safety with requests for confidentiality 16

17. 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. DCL Focus Points
Encouraging complaints by granting “amnesty” for other violations

19. DCL Focus Points
Equity for both parties

20. DCL Focus Points
The 60 day review

21. Points of Focus from the DCL
Concurrent criminal and College investigations

22. 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. 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. 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. 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. 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. 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. Procedural Requirements
Several disciplinary process procedural protections
Some adapted from April 2011 DCL
Applicable to cases involving student AND employee complainants

29. 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. 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. 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. Campus SaVE Challenges
Requires your IMMEDIATE attention
Collaboration & Coordination are KEY
Programming Resources

33. 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. 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. 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. What to Do? Engage your community 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. Borrowed in part from G. Smith & Leslie Gomez, PepperHamilton, LLP
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. CAMPUS SAFETY & SECURITY
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