Judy Ryan, J.D. Enterprise Risk and Institutional Compliance Officer Regulatory Overview for Title IX, Clery and VAWA

Special Thanks Jackie W. Moran, J.D., Director of Compliance for Student Affairs & Title IX Coordinator-New Brunswick National Association of College and University Attorneys

Regulatory Framework  Title IX Title IX of the Education Amendments of 1972 is a Federal law that prohibits discrimination based on sex in educational programs and activities that receive Federal financial assistance.  Jeanne Clery Act  Violence Against Women Act/Campus SaVE Act

What is Title IX? “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.” Title IX is enforced and interpreted by the U.S. Department of Education, Office for Civil Rights

Conduct Prohibited by Title IX Sex Discrimination Sexual Harassment Sexual Violence Hostile Environment Title IX & possibly criminal Title IX & criminal

 Protects students and employees in connection with all the academic, educational, extracurricular, athletic and other programs that occur: – On-campus – During off-campus activities that are school-related  Schools must process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct: – occurred in the context of an education program or activity or – had continuing effects on campus or in an off-campus education program or activity  Even if there are no continuing effects of the off-campus sexual violence, the school still should handle these incidents as it would handle other off-campus incidents of misconduct or violence Scope of Title IX

 If a school knows or reasonably should have known about sexual harassment, the school must take immediate action to: eliminate the harassment prevent its occurrence address its effects  Schools must also: Appoint a Title IX Coordinator Have published “prompt and equitable” grievance procedures. “Prompt and equitable” includes:  Notice of procedures and where to file complaint  “Adequate, reliable and impartial investigation”  Opportunity to present witnesses and evidence  Reasonable and prompt timeframes (60 days)  Notice of outcome Provide remedies and resources to complainants/victims Provide training for members of its community  If someone believes that a school has not met these obligations, they can file a complaint with OCR. Title IX Requirements

Sex Discrimination Sex discrimination includes all forms of sexual harassment, including verbal sexual harassment and sexual violence. It also includes: – Unequal pay based on gender – Discrimination on the basis of pregnancy or parental status – Unequal distribution of athletic funds – Unequal admissions policies or practices – Unequal access to/receipt of financial aid

OCR defines sexual violence as “an extreme form of sexual harassment.” It includes physical sexual acts perpetrated without consent. Examples are: Rape Sexual assault Sexual coercion Sexual contact with a person who is unable to consent due to incapacity or impairment Sexual Violence

 Sexual harassment is unwelcome conduct of a sexual nature. It includes: Requests for sexual favors Unwelcome advances Sexist comments Comments about someone’s body, sexual activity or sexual attractiveness Sexually suggestive touching, leering, gestures, sounds, comments, or displays of sexually suggestive objects  A hostile environment exists when the conduct is sufficiently serious (severe & pervasive) that it interferes with or limits a student’s ability to participate in or benefit from the school’s program. Sexual Harassment

Sexual exploitation refers to non-consensual abuse or exploitation of another person’s sexuality for the purpose of sexual gratification, financial gain, personal benefit or advantage, or any other non-legitimate purpose. Examples of sexual exploitation include, but are not limited to: observing another individual’s nudity or sexual activity or allowing another to observe nudity or sexual activity without the knowledge and consent of all participants; non-consensual streaming of images, photography, video or audio recording of sexual activity or nudity, or distribution of such without the knowledge and consent of all participants; exposing one’s genitals in non-consensual circumstances; or inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity. Sexual Exploitation

Sexual intimidation refers to threatening behavior of a sexual nature directed at another person or group that reasonably leads that target(s) to fear for their physical well-being or to engage in sexual conduct for self- protection, such as threatening to sexually assault another person or engaging in indecent exposure. Sexual Intimidation

Relationship violence refers to any act of physical, sexual, and/or psychological harm against an individual by a current or former intimate or romantic partner, or by a person with whom the victim shares a child in common. Intimate or romantic partners may be dating, cohabitating, married, separate or divorced, and may be of the same or different sex. Dating violence and domestic violence are both considered “relationship violence.” Relationship Violence

Stalking refers to any course of conduct directed at a specific person that would cause a reasonable person to be fearful of serious harm or danger to themselves or to individuals close to them. Examples of stalking include: non-consensual communication and physical contact following or pursuing the other person waiting or showing up at locations visited by the other person spying on a person trespassing or vandalism gathering of information about a person from others or manipulating and controlling behaviors such as threats to harm oneself or threats to harm someone close to the victim. Stalking

Title IX does not prohibit discrimination on the basis of sexual orientation, BUT: LGBTQ students are protected from sexual harassment and sexual violence the same as all other students. Title IX prohibits gender-based harassment, which is harassment based on sex, sex- stereotyping, gender identity and gender- nonconformity. Discrimination and harassment based on sexual orientation are prohibited by state law and university policy. Gender-Based Harassment and Sexual Orientation

Clery Act  Requires reporting on annual crime statistics.  Purpose is to provide students, their families and employees with accurate, complete and timely information about campus safety.  Mandates that schools develop policies, procedures and programs regarding sexual assault and interpersonal violence.

 Amendments to the Clery Act Collection & reporting of crime statistics  Includes stalking, dating violence and domestic violence  “Prompt, fair, and equitable” proceedings Adviser of their choice Simultaneous written notice  Training and education requirements For all incoming students & staff For those involved in investigation & adjudication processes VAWA Amendments

 “Not Anymore” online program for all students  In-person training for employees  New Policy: “Student Policy Prohibiting Sexual Harassment, Sexual Violence, Relationship Violence, Stalking, and other Related Misconduct” How Does Rutgers Comply with Title IX and VAWA?

 Covers misconduct committed by a current Rutgers University student that either: occurs on any University campus or in connection with University programs or activities; or creates a hostile environment for University students; or involves a Complainant who is a current University student.  Affirmative definition of consent  Defines all violations covered by Policy  Defines “responsible employees” and “confidential employees”  Explains procedures for investigation & adjudication of complaints Student Policy Prohibiting Sexual Harassment, Sexual Violence, Relationship Violence, Stalking, and other Related Misconduct

Sub-Regulatory Guidance from OCR  Significant Guidance Documents: – 1997 Sexual Harassment Guidance – 2001 Revised Sexual Harassment Guidance – April 4, 2011 “Dear Colleague Letter” – April 29, 2014 Q & A on Title IX and Sexual Violence  OCR Resolution Letters and Agreements for 2014 – Tufts University, The Ohio State University

Tufts University Resolution Agreement OCR investigated allegations that Tufts discriminated against student on the basis of sex by failing to take prompt and equitable steps to investigate and respond to her report that she was sexually assaulted by her then-boyfriend. Specifically, the student claimed Tufts investigation took too long, that the university did not provide appropriate interim protective measures during the investigation and that Tufts retaliated by threatening to remove her from a university leadership program.

Tufts (cont’d) OCR’s findings included: (1) at the time the sexual assault was reported, Tufts was without a permanent Title IX Coordinator. (2) Tufts’ notice of nondiscrimination included inaccurate information about filing a complaint with OCR. (3) Most significantly, OCR found that Tufts “failed to respond in a prompt and equitable manner to complaints, reports, and other incidents of sexual harassment/violence of which it had notice, including the student’s complaint of sexual violence and sexual harassment and at least one other complaint filed in the and academic years.”

Ohio State 2014 Resolution Agreement OCR commenced its review to examine whether OSU “responded promptly and equitably to complaints, reports, or any other notice…of incidents of sexual harassment, sexual assault and other forms of sexual violence and whether any failure to respond appropriately allowed for the creation and/or continuation of a sexually hostile environment.” Nearly four years into OCR’s compliance review, OSU received a complaint against the director of the marching band alleging that the band’s culture facilitated acts of sexual harassment, creating a sexually hostile environment for students.

Observations about OCR Investigations As a general rule, a university will be well-positioned for any investigation if it has developed up-to-date Title IX policies and grievance procedures, followed the policies and procedures in practice, provided appropriate Title IX training to students and staff, taken prompt and equitable steps to investigate and respond to complaints and reports of sexual harassment and sexual violence, and made determinations, as appropriate, about interim relief.* * From 12/2/15 NACUANOTE

Proposed Legislation Federal – Campus Accountability and Safety Act (CASA) – S.O.S. Campus Act – Hold Accountable and Lend Transparency (HALT) Bill – Fair Campus Act – Safe Campus Act

Proposed Legislation  New Jersey Senate Bill S2317 (report sexual assault to local law enforcement) Senate Bill S2357 (appoint advocates for victims of sexual assault) Senate Bill S2358 (publish sexual assaults on websites) Assembly Bill No (task force to study issues related to sexual assault on college campuses)