The Nuts and Bolts (updated March 2015) (Institution) A Guide to Title IX on Campus: The Nuts and Bolts (updated March 2015) Richard T. (Rick) Olshak Associate Dean of Students Illinois State University Affiliated Consultant, National Center for Higher Education Risk Management (NCHERM) (date)

OUTLINE A. History of Title IX B. The 2011 Dear Colleague Letter C OUTLINE A. History of Title IX B. The 2011 Dear Colleague Letter C. Developments since the 2011 DCL D. Future Challenges

DISCLAIMERS This session is not intended to service as legal advice Intended for a wide audience and presumes no previous knowledge; some of this material is likely to be a review for some participants The material is primarily centered around incidents involving students, but all of the material is transferrable to the employment context. This Power Point presentation is text heavy – for a reason Views expressed today reflect the presenter’s views only; not Illinois State University, NCHERM, or ASCA

YOUR PRESENTER Associate Dean of Students at Illinois State University Previously conduct and conflict resolution officer at Illinois State University, SUNY-Cortland, and Georgetown University Certified Title IX Officer and TIX Investigator Past President, Association for Student Conduct Administration (ASCA) Affiliated Consultant, NCHERM Community, court, and higher education mediator and mediation trainer Experienced Title IX hearing officer

A. History of Title IX

History Originally passed in 1972 as Title IX of the Education Amendments of 1972; governed by the Department of Education and enforced through its Office for Civil Rights (OCR) Amended Title IX of the Civil Rights Act of 1964 Often understood only in the context of its impact on high school and collegiate athletics though there was no explicit mention of sports; the scope of Title IX is much broader…

History The law states that: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance..." —United States Code

History Covers all educational activities and applies to all members of the academic community “Educational activities” includes activities both inside and outside the classroom, including student activities, clubs and organizations (some sex-specific organizations exempted) Applies to all institutions receiving any federal funding (public and private) TIX is a gender equity law that prohibits discrimination based on any gender bias (not solely a women’s rights law)

History 1990 Clery Act 1997 Dear Colleague Letter from OCR (Sexual Harassment Guidance) 1997 Higher Education Reauthorization Act 2001 Dear Colleague Letter from OCR (Revised Sexual Harassment Guidance) 2009-2010 Center for Public Integrity investigative articles 2011 Dear Colleague Letter from OCR (Sexual Violence Guidance)

B. The 2011 DCL

2011 DCL What is an OCR Dear Colleague Letter (DCL)? Simply, OCR DCL letters provide regulatory guidance from the Office for Civil Rights; these letters are published in the Federal Register and are intended to influence institutional policies and procedures. The contents of the letters are enforceable through OCR. Enforcement comes in the form of Voluntary Resolution Agreements (“302 Letters”) and Resolution Agreements (“303 Letters”)

2011 DCL Obligation to respond: “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.” Page 4, 2011 DCL (emphasis added)

2011 DCL Simply put, we must: STOP PREVENT REMEDY

2011 DCL “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.” “Knowing” means that a “responsible employee” has been given either actual or constructive notice of sexual harassment, sexual misconduct, relationship/domestic violence, stalking, or any other incidents which are driven by gender bias/discrimination

2011 DCL – Obligation to Respond The obligation to respond may include incidents that take place off-campus, if that behavior may result in a hostile environment on campus It does not matter who files a complaint (student, parent, third party); school must promptly investigate the complaint OCR notes that Title IX investigations are different than law enforcement investigations, and a criminal investigation does not relieve the institution of its responsibility to act in a prompt, thorough, and impartial manner.

2011 DCL – Obligation to Respond Who is a responsible employee? A responsible employee is one who: Has authority to take action in response to sexual harassment, sexual misconduct, etc. Has the duty to report sexual harassment, sexual misconduct, etc. to appropriate officials Is someone a student could reasonably believe has this authority or duty (2014 Q&A) Don’t confuse responsible employees with Campus Security Authorities (defined under Clery) which include campus police, security, those defined as recipients of reports, and officials with responsibility for student/campus activities

2011 DCL Was the 2011 DCL necessary? There are 4,000 reported incidents of sexual battery and over 800 reported rapes/attempted rapes in U.S. high schools Estimates indicate that 20% of women and 6% of men will be victims of sexual violence during their years in college Victims of assault are more likely to perform poorly academically, and to experience depression and PTSD, abuse alcohol/drugs, and to contemplate suicide

2011 DCL Was the 2011 DCL necessary? OCR has found numerous schools out of compliance with the 2011 DCL and required those schools to institute compliant policies and processes Higher education behaved its way into the 2011 DCL, given attempts by the federal government to get our attention in 1990, 1997, and 2001 “Free speech” activists have complained that the DCL has created an anti-male bias on college campuses. This is a false argument that I have written extensively about at olshak.com In short, YES, the 2011 DCL was necessary

2011 DCL The Structure of the DCL I. Obligation to Respond II. Procedural Requirements III. Prevention and Remedial Measures IV. Remedies and Enforcement For the purpose of today’s session, we will focus almost exclusively on the first two sections of the 2011 DCL.

2011 DCL – Areas of Emphasis Applies to sexual harassment, sexual violence (a form of sexual harassment), relationship violence, and stalking All schools are required to publish and disseminate a notice of nondiscrimination, and direct inquiries to institution’s Title IX Coordinator; must be broadly distributed to students, employees, and those seeking admission or employment. All schools are required to publish and disseminate the name, title, and contact information for the person designated to coordinate compliance with Title IX. Title IX coordinators must have adequate training to be able to meet their compliance obligations.

2011 DCL – Areas of Emphasis Once on notice, school must inform complainant of process and seek consent to move forward; confidentiality may be requested, but not guaranteed If complainant insists that her/his name not be used, school must inform complainant that ability to respond may be limited (unless sufficient information is otherwise available to move forward independently) However, if environment is pervasive, school must weigh request for confidentiality against the greater good of the community – and must inform complainant that her/his name is being used

2011 DCL – Areas of Emphasis All schools are required to adopt and publish grievance procedures for the prompt and equitable resolution of student and employee sex discrimination complaints. There are 11 key points worth noting within grievance procedure requirements and recommendations.

2011 DCL – Areas of Emphasis Procedural Guidance Separate processes are not required as long as existing processes conform to OCR expectations; student conduct procedures (and other forms of managing grievances) may be employed if they are adequate. While mediation may be used to resolve some sexual harassment cases, it may not be conducted solely between parties, but must include a trained mediator. Mediation is not to be used in cases involving sexual assault or rape. (It may be used to address conditions in the environment, but not the violation itself.)

2011 DCL – Areas of Emphasis Procedural Guidance Grievance procedures must be published and widely distributed to all members of the campus community; electronic publication is highly encouraged and should be in a predominant location. There must be a thorough investigation of all complaints. In each case, schools must review options and resources available. MOUs (Memorandums of Understanding) with local police forces are encouraged in order to establish protocols for how a university may meet its obligation to respond in the face of a criminal investigation. Schools cannot wait for the outcome of a criminal investigation to move forward.

2011 DCL – Areas of Emphasis Procedural Guidance Complaints must be adjudicated with the preponderance of evidence (more likely than not) standard; this is the same standard employed by OCR. Equal due process rights must be afforded to both complainant and respondent. This includes (but is not limited to) pre-hearing meetings, the right to an advisor/attorney, and the ability to present information and witnesses. Schools may not provide due process rights for respondents that restrict or delay Title IX protections for the complainant. Equal appeal rights must be afforded to both complainant and respondent.

2011 DCL – Areas of Emphasis Procedural Guidance Training is required for all people involved in the receiving, investigation or resolution/adjudication of complaints. Universities must be able to investigate, resolve, and complete appeals processes of Title IX cases within 60 days. A Notice of Outcome must be provided to both parties in writing indicating a finding, any action taken, and outlining the appeals process. This does not violate FERPA and is in compliance with the Clery Act.

2011 DCL – Prevention/Remedial Schools should take proactive measures to prevent harassment and violence through education programs and by making resources and services available for victims. Schools should provide training for all new students, faculty, staff, and employees. Schools must encourage reporting and insure that reporting processes do not deter complaints. Schools must take immediate action to investigate and adjudicate complaints.

2011 DCL – Prevention/Remedial Schools must deter retaliation and offer remedies to mitigate the complainant’s concerns about campus safety and/or being able to move freely about campus. Schools should offer counseling, medical, and academic support as needed.

2011 DCL – Remedies/Enforcement When school processes are found to not be in compliance with OCR expectations: Federal Funding may be cut/removed Case may be referred to the Department of Justice OCR may assert its own resolution processes

C. Developments since the 2011 DCL

Since the 2011 DCL Numerous 302 and 303 letters involving colleges and universities across the nation (key findings come from University of Montana and SUNY system) 2013 DCL on Students with Disabilities and Athletics 2013 DCL on Retaliation 2013 DCL on Pregnant and Parenting Students 2014 Campus SaVE Act (Campus Sexual Violence Elimination Act - DNP) and VAWA (Violence Against Women Act) resulted in rule-making changes affecting the expectations of campuses 2014 White House report and OCR “Questions and Answers on Title IX and Sexual Violence” (46 p.) Several bills pending in Congress

2014 OCR “Q&A” – Key Components Further defined “confidentiality” in Title IX reporting Who is “Confidential”? Licensed professional counselors (acting within scope) Pastoral counselors (acting within scope) Who may be “Confidential”? Student health centers and staff*** Mental health professionals and staff*** Victim advocate / Sexual assault services and staff*** *** when acting in capacity both for which they are employed and receive the disclosure within the scope of that employment Who is not “Confidential”? Faculty Faculty Advisors Student organization Advisors Mediators Ombuds RAs, residence hall staff Student Affairs staff Academic Affairs Campus Police / public safety Athletics staff Anyone else…….

2014 OCR “Q&A” – Key Components Further defined “responsible employee” (previously noted), but went further: Schools can be held responsible for harassment if any person perceived to be a responsible school employee was put on notice and took no corrective action Offered additional guidance on training, education, and prevention Offered clarity on the responsibility to conduct robust investigations Provided additional guidance on interim measures, appeals, and other issues

2014 VAWA Changes New reporting requirements New training requirements Domestic violence, dating violence, stalking National origin and gender identity added to hate crime categories Victim’s names to be withheld from timely reports involving where such reporting causes reasonable fear of harm New training requirements New students and new employees must be offered “primary prevention and awareness programs” that promote awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking

2014 VAWA Changes New procedural requirements Institutions must inform students of reporting procedures, as well as other procedures such as the preservation of evidence Institutions must inform students of both criminal and institutional reporting options Institutions must review victim’s rights and institutional responsibilities such as judicial no-contact, restraining, and protective orders Burden of proof (standard of evidence) must be stated in institutional policy (remember OCR requires the preponderance test) Institutional officials must be trained on investigations and conducting hearings that protects the safety of victims and promotes accountability Sanctions and protective measures must be identified and communicated

2014 VAWA Changes New procedural requirements Both accuser and accused are allowed an advisor of their choice in any campus meetings or proceedings Both accuser and accused must be simultaneously notified in writing of the outcome of all conduct and appeal proceedings Institutional policy must address how victim’s confidentiality will be protected

D. Future Challenges

Future Challenges As previously noted, several bills have been introduced in Congress which might significantly effect colleges and universities. The most well known has been introduced by Senator McCaskill and others called the Campus Safety and Accountability Act Additionally, a number of other OCR DCLs are in the pipeline. Among the topics that OCR is expected to address are: Defining “consent” and defining “due process” requirements Expulsion as a default sanction in sexual violence cases Students on TIX hearing panels (OCR has already opined on this)

QUESTIONS ???

After my visit If you have additional questions and/or comments, please feel free to contact me at: olshak.rick@gmail.com or visit www.olshak.com

Acknowledgements Materials presented today were developed with the assistance of: US Department of Education National Center for Higher Education Risk Management (NCHERM) Association of Title IX Administrators (ATIXA) National Association of College and University Attorneys (NACUA)