Campus Assaults: What is Your College’s Responsibility & Liability? Bob Joyce UNC School of Government September 4, 2014

1964 Congress passes Title VII of the Civil Rights Act

1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of

1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of race

1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of race color

1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of race color religion

1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of race color religion national origin

1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of race color religion national origin sex

1974 Title VII case: “inharmonious personal relationship”

Late 1970s Quid pro quo sexual harassment Violation of Title VII if there was sexual harassment that resulted in some kind of tangible job detriment

1981 Title VII case “an employer violates Title VII merely by subjecting female employees to sexual harassment, even if the employee’s resistance to that harassment does not cause the employer to deprive her of any tangible job benefits”

1972 Congress passes Title IX

1972 Congress passes Title IX Title IX bans discrimination on the basis of sex

Title IX Congress passes Title IX Title IX bans discrimination on the basis of sex What is discrimination on the basis of sex

Title IX Direct, intentional unequal treatment, yes.

Title IX Direct, intentional unequal treatment, yes But what about sexual harassment?

EEOC Definition: Title VII Sexual harassment “Effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.”

OCR Definition: Title IX Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

OCR Definition: Title IX Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

OCR Definition: Title IX “sufficiently severe, persistent, or pervasive”

OCR Definition: Title IX “a single or isolated incident of sexual harassment may, if sufficiently severe, create a hostile environment”

2006 UNC case “those exceptional cases where a single incident of sexual harassment, such as sexual assault or rape, has been deemed sufficient to raise a jury question.”

Late 2000s Under Title IX Sexual harassment is a form of unlawful discrimination on account of sex If “sufficiently severe, persistent, or pervasive” A single incident may meet that standard

2011 Dear Colleague Letter

2011 Dear Colleague Letter Student-run honor court may not be the proper forum

2011 Dear Colleague Letter Student-run honor court may not be the proper forum Can’t wait for the police

2011 Dear Colleague Letter Student-run honor court may not be the proper forum Can’t wait for the police Must use the “preponderance of the evidence” standard

Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

Today Conduct on campus or in connection with a college event

Today Conduct on campus or in connection with a college event Conduct off campus

Today Conduct on campus or in connection with a college event Conduct off campus Limits a student’s ability to participate or benefit Creates a hostile or abusive educational environment

My Experience

ID10T

My Experience What conduct occurred?

My Experience What conduct occurred? Was there consent?

My Experience What conduct occurred? Was there consent? “Sexual harassment also includes sexual misconduct.”

My Experience What conduct occurred? Was there consent? “Sexual misconduct refers to physical sexual acts perpetrated against a person without their Consent”

My Experience What conduct occurred? Was there consent? Role of alcohol

My Experience What conduct occurred? Was there consent? Role of alcohol “or where a person is incapable of giving Consent due to the person’s use of drugs, alcohol, or other impairing substances.”

My Experience What conduct occurred? Was there consent? Role of alcohol “The relevant standard... is whether the person alleged to have engaged in sexual misconduct knew, or a sober, reasonable person in the same position should have known, that the Complainant was incapacitated.”

My Experience Two students, off campus, drink alcohol together voluntarily They both become intoxicated They engage in sexual contact One student subsequently asserts that consent was not given because that student was incapacitated by the use of alcohol

My Experience What conduct occurred? Was there consent? Role of alcohol Role of attorneys In UNC disciplinary hearings, students “shall have the right to be represented... by a licensed attorney... who may fully participate during any disciplinary procedure”

Active Questions How to educate students How to receive and investigate reports How to cooperate with law enforcement How to conduct investigations and hearings How to deal fairly with all parties