1. Clery Meet Title IX: Implementing the VAWA Amendments
Title IX, Meet Clery,
Clery Meet Title IX: Implementing the VAWA Amendments
Steven J. Healy, Margolis Healy & Associates
Jeffrey 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 DCL
Requirements
Practical Challenges
Negotiated Rulemaking

3. Agenda
A Good Faith Effort GEN1413.html

4. Title IX Fundamentals
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. 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 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 5

6. Scope of Coverage
Title 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 nature
Sex-based harassment by those of same sex
discriminatory 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 Procedures
Notice
Prompt and equitable
Adequate, reliable, and impartial investigation of complaints
Designated and reasonably prompt time frames
Notice of outcome
Prevention, Education & Training 8

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 officials
Train employees with authority to address harassment, or who are likely to witness it or receive reports, how to respond properly
OCR 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 impartially
Provide grievance procedures that promote prompt, equitable resolution of complaints
Undertake education and prevention efforts 11

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 offenders
Create a federal “rape shield law,” which is intended to prevent offenders from using victims’ past sexual conduct against them
Strengthen victims’ ability to obtain/enforce protection orders

13. Violence Against Women Act (1994)
Funding training for police and judges regarding domestic and sexual violence
establishing the National Domestic Violence Hotline
developing 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 2013
Amends HEA “to improve education and prevention related to campus sexual violence, domestic violence, dating violence, and stalking”
Effective March, 2014/October, ASR

15. Keeping Perspective
COMPLIANCE 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 investigations
Compassionate, victim-centered services and trauma informed response
Title 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 investigations
Objective fact finding
Thorough investigations and reports

18. New Policy Requirements
Several specific procedural protections/statements must be included in 2014 ASR
Some were derived or adapted from April DCL
Applicable to cases involving student AND employee complainants
Must 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
Definitions
Sexual Assault, Domestic Violence, Dating Violence, and Stalking
Must include local and should include institutional definitions
Must include definition of consent in applicable jurisdiction

21. New Policy Requirements
Reporting An Incident
Procedures 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; and
Decline to notify such authorities; and
Where 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 requirements
Responsible employee
Campus Security Authority
Mandatory Reporter of Suspected Child Abuse
Centralized reporting & review processes
Consistent and on-going training adjusted regularly based upon community needs & climate (DFSCA)

23. New Policy Requirements
Victim (& Other Party) Confidentiality
Information 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 complainant
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. OCR will likely respond positively to good faith efforts and actions.
Amnesty?

25. New Policy Requirements
Written Notification
A 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 skillset
Timelines
Concurrent criminal and IHE investigations
Employees are often the forgotten or under- attended population

28. New Policy Requirements
Explanation of Disciplinary Action
An 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 Action
Question: Does that include legal counsel?

30. New Policy Requirements
Explanation of Disciplinary Action
Must include statements that:
covered disciplinary proceedings will provide a prompt, fair and impartial investigation and resolution
such 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 Requirements
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. New Policy Requirements
Educational Requirements
Regarding “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 person
Regarding “information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks”

33. Rule Making
Term – 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 Making
Stalking 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 Making
How to judge the sufficiency of…
On-going
Campaign
Awareness Programming
Primary Prevention
Bystander intervention
Training (afford, track or require participation)… if so what about casual students

36. Rule Making
Programs 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 Making
Awareness 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 Making
Risk 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 do
Engage your community
Students
Faculty
Staff
Leadership
Local partners

40. Make a plan with measurable action items: Task Force
What to do
Make a plan with measurable action items:
Task Force
Include External Partners (SAO, Sex Crime Task Force, local PD)
Consider external policy audit
Surveys
Programming Inventory
Training and education inventory

41. Questions?
Jeffrey J. Nolan, Esq. Steven J. Healy