Title IX, Sexual Misconduct and Bullying: New

Title IX, Sexual Misconduct and
Bullying: New Concerns for
College Student Affairs Leaders
SEPTEMBER 23, 2011
 Basic understanding of Title IX and its
application to student on student sexual
misconduct and bullying.
 Awareness of contents and implications of Dear
Colleague letters issued by ED OCR re: bullying
and sexual misconduct.
 Awareness of key issues to be addressed by
colleges seeking to comply with Title IX with
respect to policies and procedures applicable
to bullying and sexual misconduct on college
Plain Language Disclaimers
 This is not legal advice.
 You and your college have a lawyer; I’m not
your lawyer.
 This issue is very complicated.
Criminal, civil
On campus/off campus
Title IX, student conduct codes, criminal law, tort claims
Victim-centered vs. equitable vs. rights of the accused
Multiple responses
Title IX Substantive Standards
 Title IX of the Education Amendment of 1972, 20
U.S.C. §§ 1681*, et seq and implementing regs,
34 C.F.R. Part 106* prohibit discrimination on the
basis of sex in federally financed education
 Sexual harassment, which includes sexual
misconduct and bullying, can be sex
discrimination prohibited by Title IX.
 Harassment of LGBT students may constitute
gender-based harassment that would violate
Title IX. See Dear Colleague, October 2010*
Hostile Environment
 “When a student sexually harasses another
student, the harassing conduct creates a hostile
environment if the conduct is sufficiently serious
that it interferes with or limits a student’s ability
to participate in or benefit from the program.”
 2001 Guidance *, Dear Colleague Letter April
Scope of Coverage
 Every aspect of a college’s education program
and activities.
Other programs of the college/on or off campus.
 Third parties also protected.
 “Consider effects of the off-campus conduct
when evaluating whether there is a hostile
environment on campus.” Dear Colleague April
 “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.”
 Dear Colleague April 2011*
Substantive Standards: Sexual Misconduct
 Sexual misconduct or sexual violence is a form
of sexual harassment.
Sexual violence refers to “physical acts perpetrated
against a person’s will or where the person is incapable
of giving consent due to the victim’s use of drugs or
alcohol … or due to an intellectual or other disability.”
“A number of different acts fall into the category of
sexual violence, including rape, sexual assault, sexual
battery and forms of sexual coercion. All such acts of
sexual violence are forms of sexual harassment covered
by Title IX.”
Dear Colleague April 2011*
Substantive Standards: Bullying
 Bullying is a form of harassment.
 Harassing conduct may take many forms, including
verbal acts and name‐calling; graphic and written
statements, which may include use of cell phones or the
Internet; or other conduct that may be physically
threatening, harmful, or humiliating. Harassment does not
have to include intent to harm, be directed at a specific
target, or involve repeated incidents.
 “If abusive behavior is on the basis of race, color,
national origin, sex or disability and creates a hostile
environment, the school is obligated to respond.”
 Dear Colleague October 2010*
Title IX Procedural Requirements
 Adopt and publish nondiscrimination policy.
 Adopt and publish grievance procedures.
 Provide for prompt and equitable resolution of
 Designate person(s) to coordinate compliance
with Title IX including investigations and
 Notify all parties of nondiscrimination policy,
provide name and contact info for Title IX
coordinator(s) and describe available
procedures to resolve complaints.
Title IX Procedural Requirements
 Title IX grievance process has different
objectives from university disciplinary processes.
 Grievance process is focused on addressing
and remedying the complaints of the alleged
victim of discrimination.
 Disciplinary process is focused on determining
guilt or innocence of person accused of
misconduct and implementing appropriate
 Both are different from criminal process.
Key Elements of Sexual Misconduct Policy
 Defines sexual misconduct.
 Not tied to criminal law definition.
 Includes all non-consensual acts.
 Includes sex-based cyber-harassment.
 Defines consent.
 No inference from silence or from current or past
 Intoxication is not an excuse for failure to get consent;
intoxication can render someone incapable of giving
Key Elements of Sexual Misconduct Policy
 Explains difference between privacy and
Protects privacy of all parties to the extent possible.
Confidentiality cannot be guaranteed.
Campus officials (except defined confidential resources)
who receive reports of sexual misconduct must share
with university or college official for
Makes clear that a request for anonymity or inaction can
hinder the institution’s ability to respond.
Key Elements of Sexual Misconduct Policy
 Names person(s) to whom report of sexual
misconduct or assault is to be made.
Consider limiting number of individuals to whom official
reports can be made.
 Prohibits retaliation or intimidation.
 Encourages reporting.
 Makes clear that retaliation or intimidation can lead to
additional sanctions.
 Address “amnesty” for victims/witnesses.
 Describes reporting options available to
Criminal complaint, disciplinary action or both.
Key Elements of Sexual Misconduct Policy
 Clarifies responsibilities of University Under Title IX
 States that university will initiate administrative
investigation under Title IX regardless of option the
student chooses.
 Indicates that administrative action may be deferred at
request of complainant choosing to file criminal
complaint if the accused does not present an imminent
 Administrative investigations must result in written
investigative reports that meet certain standards. Notre
Dame Resolution Agreement*
 Investigations must be complete in 60 days, except in
extraordinary circumstances.
Key Elements of Sexual Misconduct Policy
 Describes disciplinary process.
Can be formal/informal but mediation is not acceptable for
sexual assault cases.
Equal notice.
Same opportunities to have others present and to present
witnesses and information.
Alternative arrangements if complainant doesn’t want to be in
hearing room with accused.
Past conduct of complainant not at issue except relevant to
consent where parties had a prior sexual relationship.
Both parties informed of outcome.
Both parties have opportunity for review of decision on same
terms (e.g., procedural flaw).
Key Elements of Sexual Misconduct Policy
 Describes other available resources.
 Equally available to victim and accused.
 Medical, counseling, pastoral care (confidential).
 Sexual violence program advocate or designated on
campus coordinators (confidential?)
 Sexual assault response team (SART), on-campus or off
Key Elements of Sexual Misconduct Policy
 Describes temporary, intermediate and
permanent relief available to victim.
No contact orders.
Academic adjustments.
Change in housing/dining arrangements.
Extracurricular activities.
 Institution has responsibility to bring
discrimination to an end; take steps reasonably
calculated to prevent future occurrence;
restore victim to pre-deprivation status
Communication/Education/Awareness Issues
 Education about sexual violence (common myths,
common circumstances)
Prevention programs, e.g., Red Flag Campaign on Dating
 Effective dissemination of policy and procedures.
Efficient resource (i.e., information gathered in one
document/one place)
Multi-format (on-line, student handbook, student newspaper,
in-person programming, new student orientation)
Targeted (specific programs for specific populations, e.g.,
Provide written materials to complainant within 24 hours.
Communication/Education/Awareness Issues
 Ongoing evaluation of effectiveness of
communication and of investigations and
 Warnings to campus when there is a serious,
ongoing threat.
Training Requirements
 Training for all involved in investigation and
adjudication of Title IX sexual misconduct
complaints including investigators, fact-finders,
 Training for any employees likely to witness or
receive reports of sexual harassment or sexual
violence re: policy and procedures, reporting
“Legal” Issues
 Jurisdiction
 On-campus/off-campus conduct by students, especially
against other students.
 Statute of Limitations
 Time allowed to file complaint.
 Specific number of days or duration of student status?
 Standard of Evidence
 Preponderance of the evidence vs. clear and
convincing vs. beyond a reasonable doubt
 Preponderance must be used in Title IX procedures.
“Legal” Issues
 Judicial standard for monetary liability
 Recipient had “actual knowledge” of
 Recipient was “deliberately indifferent” to known acts of
 Harassment was so “severe,” “pervasive” and
“objectively offensive” that it “can be said to deprive the
victims of access to the educational opportunities or
benefits provided by the school.” Davis case*
 Context matters… subject to the recipient’s “control”
over the victim, the accused and the circumstances.
“Legal” Issues
 OCR standard of liability is less stringent.
 “Sufficiently severe, pervasive or persistent to interfere
with or limit a student’s ability to participate or benefit.”
A single act of rape can establish the existence of a
hostile environment.
 College is “responsible for addressing harassment
incidents about which it knows or should have known.”
Notice To Students
 Clear policies.
 Who is protected?
 What conduct is prohibited?
 Accessible procedures.
 What is the role of the Title IX coordinator?
 Where does a student file a complaint?
 Effective communication.
 Do students know their rights?
 How do you know?
Obligation to Respond
 Absence of a formal complaint.
 Requests for confidentiality.
 Off campus conduct.
 Not just a criminal case.
Prompt and Effective Response
 What is needed to protect community and end
What is prompt?
Formal/informal procedures.
Effect of police/criminal investigations.
Standard of proof.
Equal opportunity to present relevant evidence
and witnesses.
Required training of investigators and judicial
Title IX Bookmarks: Law, Regulation, Cases, Model
and Campus Policies, Research Reports
This presentation is
copyrighted but may
be used or quoted
with attribution.
©2011 Changeservant,
Claire Guthrie Gastañaga
[email protected]

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