Presentation on theme: "Clery Meet Title IX: Implementing the VAWA Amendments"— Presentation transcript:
1 Clery Meet Title IX: Implementing the VAWA Amendments Title IX, Meet Clery,Clery Meet Title IX: Implementing the VAWA AmendmentsSteven J. Healy, Margolis Healy & AssociatesJeffrey J. Nolan, Esq., Dinse, Knapp & McAndrew, P.C.
2 Agenda If it's not Title IX, why should I care? Codification of portions of the DCLRequirementsPractical ChallengesNegotiated Rulemaking
4 Title IX FundamentalsTitle 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.4
5 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 alcoholAn individual also may be unable to give consent due to an intellectual or other disabilityMay include rape, sexual assault, sexual battery, and sexual coercion5
6 Scope of CoverageTitle IX also prohibits gender-based harassment, including:acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex, even if those acts do not involve conduct of a sexual natureSex-based harassment by those of same sexdiscriminatory sex stereotyping (e.g., harassment of gay and lesbian students)6
7 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 ”7
8 Overview of Mandates Notice of Non-discrimination Title IX Coordinator Grievance ProceduresNoticePrompt and equitableAdequate, reliable, and impartial investigation of complaintsDesignated and reasonably prompt time framesNotice of outcomePrevention, Education & Training8
9 Summary of Institutional Obligations If institution knows or reasonably should know, Title IX requires immediate action to eliminate the harassment, prevent its recurrence, and address its effects.Must designate Title IX Coordinator, publish notice of nondiscrimination, and adopt and publish grievance procedures.9
10 Summary of Institutional Obligations Train employees to report harassment to appropriate institutional officialsTrain employees with authority to address harassment, or who are likely to witness it or receive reports, how to respond properlyOCR examples: “teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.”10
11 Summary of Institutional Obligations Investigate complaints adequately, reliably and impartiallyProvide grievance procedures that promote prompt, equitable resolution of complaintsUndertake education and prevention efforts11
12 Violence Against Women Act (1994) Designed to improve criminal justice response to violence against women by, for example:Strengthen federal penalties for repeat sex offendersCreate a federal “rape shield law,” which is intended to prevent offenders from using victims’ past sexual conduct against themStrengthen victims’ ability to obtain/enforce protection orders
13 Violence Against Women Act (1994) Funding training for police and judges regarding domestic and sexual violenceestablishing the National Domestic Violence Hotlinedeveloping coordinated community responses to prevent and respond to violence against women
14 Clery Act VAWA Amendments Part of Violence Against Women Reauthorization Act (“VAWRA”) of 2013Amends HEA “to improve education and prevention related to campus sexual violence, domestic violence, dating violence, and stalking”Effective March, 2014/October, ASR
15 Keeping PerspectiveCOMPLIANCE IS IMPORTANT, BUT PREVENTION AND RESPONSE IS MORE IMPORTANT
16 The Connections Title IX/DCL/VAWA Guidance Essential Components Policy: Coordinated/multi- disciplinary response and investigationsCompassionate, victim-centered services and trauma informed responseTitle IX requires immediate action to eliminate the harassment, prevent its recurrence, and address its effects.Training be provided to any employees likely to witness or receive reports of sexual harassment and violence, including teachers, school law enforcement unit employees, school administrators…
17 The Connections Title IX/DCL/VAWA Guidance Essential Components The fact-finder and decision-maker should have adequate training or knowledge regarding sexual violence.Adequate, Reliable and Impartial investigationsObjective fact findingThorough investigations and reports
18 New Policy Requirements Several specific procedural protections/statements must be included in 2014 ASRSome were derived or adapted from April DCLApplicable to cases involving student AND employee complainantsMust align policies with ASR statements
19 New Policy Requirements Institutional Commitment to Prevention[Name of institution] is committed to providing a safe learning and working environment. In compliance with federal laws, we have adopted policies and procedures to prevent and respond to incidents of sexual assault, domestic violence, dating violence, and stalking involving members of our campus community. These guidelines apply to all students, faculty, staff, contractors and visitors
20 New Policy Requirements DefinitionsSexual Assault, Domestic Violence, Dating Violence, and StalkingMust include local and should include institutional definitionsMust include definition of consent in applicable jurisdiction
21 New Policy Requirements Reporting An IncidentProcedures victims should follow… ,including written information about–The importance of preserving evidence that may assist in proving that the alleged criminal offense occurred or may be helpful in obtaining a protection order;How and to whom the alleged offense should be reported;Options about the involvement of law enforcement and campus authorities, including notification of the victim’s option to–Notify proper law enforcement authorities, including on-campus and local police;Be assisted by campus authorities in notifying law enforcement authorities if the victim so chooses; andDecline to notify such authorities; andWhere applicable, the rights of victims and the institution’s responsibilities for orders of protection, no contact orders, restraining orders, or similar lawful orders issued by a criminal, civil, or tribal court or by the institution.
22 Challenges to Implementation Coexisting response requirementsResponsible employeeCampus Security AuthorityMandatory Reporter of Suspected Child AbuseCentralized reporting & review processesConsistent and on-going training adjusted regularly based upon community needs & climate (DFSCA)
23 New Policy Requirements Victim (& Other Party) ConfidentialityInformation about how the institution will protect the confidentiality of victims and other necessary parties, including how the institution will…[Name of institution] recognizes the often-sensitive nature of sexual assault, domestic violence, dating violence, and stalking incidents. We are committed to protecting the privacy of any individual who makes a report. Different officials and personnel are, however, able to offer varying levels of privacy protection to victims.Reports made to [name of institution] officials will be kept confidential, and identifying information about the victim shall not be made public
24 Challenges to Implementation The reluctant complainantIf 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. OCR will likely respond positively to good faith efforts and actions.Amnesty?
25 New Policy Requirements Written NotificationA statement that the institution will provide written notification to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, visa and immigration assistance, and other services available for victims, both within the institution and in the community; (applies for both on & off campus incidents)Any student or employee who reports an incident of sexual assault, domestic violence, dating violence, or stalking, whether the incident occurred on or off campus, shall receive a written explanation of their options and rights as provided for under this policy.
26 New Policy Requirements SAMPLE WRITTEN STATEMENT
27 Challenges to Implementation Investigator skillsetTimelinesConcurrent criminal and IHE investigationsEmployees are often the forgotten or under- attended population
28 New Policy Requirements Explanation of Disciplinary ActionAn explanation of the procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking, as required by paragraph (k) of this section; and….Must state that 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”
29 New Policy Requirements Explanation of Disciplinary ActionQuestion: Does that include legal counsel?
30 New Policy Requirements Explanation of Disciplinary ActionMust include statements that:covered disciplinary proceedings will provide a prompt, fair and impartial investigation and resolutionsuch proceedings will be conducted by officials who receive annual training on issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that “protects the safety of victims and promotes accountability”
31 New Policy Requirements Educational RequirementsDescription of education programs to promote awareness of offenses of DV, DV, SA and stalkingRequirement 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 New Policy Requirements Educational RequirementsRegarding “safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of” a covered offense against another personRegarding “information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks”
33 Rule MakingTerm – Domestic Violence: local variations esp. where multi-campus systems are involved.Term – Cohabitating: Various housing arrangements… does this include roommates?Term – Dating violence: Does the IHE investigate a claim of dating relationship? If so what benchmarks apply to the criteria used (length, type, frequency, etc.)? Investigator’s judgment (similar to hate crime)?
34 Rule MakingStalking vs. Intimidation – Hierarchy, logging (lesser included).Oodles of electronic variations on the theme. Operationalized by Clery geographies (presently requires cyber-intimidation while victim is in Clery geography)And it is all the more confused when the log portions of Clery are included.
35 How to judge the sufficiency of… Rule MakingHow to judge the sufficiency of…On-goingCampaignAwareness ProgrammingPrimary PreventionBystander interventionTraining (afford, track or require participation)… if so what about casual students
36 Rule MakingPrograms to prevent – comprehensive ed. and training to prevent violence incorporating diverse approaches that are culturally relevant, inclusive, sustainable, responsive and consider risk and protective factors.Primary prevention – programming, initiatives and strategies intended to stop DV, DV, SA, & Stalking before it happens through positive healthy behaviors and beliefs. Ex.: efforts to change social norms, promote healthy relationships, change bystander inaction, etc.
37 Rule MakingAwareness programs – programs, campaigns initiatives increasing knowledge of SA, DV, DV & Stalking. May be community wide, or targeted. Ex.: theme months, speak out campaigns, etc.Bystander intervention – Safe and positive options preventing harm where risk of SA, DV, DV & Stalking exists. Includes training of recognition, overcoming barriers, identifying safe options, and taking action.
38 Rule MakingRisk Reduction – Mitigating factors that increase the likelihood. Addresses institutional or cultural conditions facilitating risk. Ex.: escorts, bystander intervention, communication systems, etc.Ongoing awareness and prevention – sustained over time from diverse sources, and various strategies. Ex.: information delivery, involvement opportunities, etc.
39 Engage your community Students Faculty Staff Leadership Local partners What to doEngage your communityStudentsFacultyStaffLeadershipLocal partners
40 Make a plan with measurable action items: Task Force What to doMake a plan with measurable action items:Task ForceInclude External Partners (SAO, Sex Crime Task Force, local PD)Consider external policy auditSurveysProgramming InventoryTraining and education inventory
41 Questions?Jeffrey J. Nolan, Esq. Steven J. Healy