Title IX, Meet Clery, 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.

© Margolis Healy & Associates, LLC

Agenda

•  If it's not Title IX, why should I care?

•  Codification of portions of the DCL

•  Requirements

•  Practical Challenges

•  Negotiated Rulemaking


Agenda

A Good Faith Effort

http://www.ifap.ed.gov/dpcletters/ GEN1413.html


Title IX Fundamentals

Title IX of the Education Amendments of 1972 (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.

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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

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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)

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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

•  § 106.31: “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 . . .”

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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


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.

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•  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.”

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•  Investigate complaints adequately, reliably and impartially

•  Provide grievance procedures that promote prompt, equitable resolution of complaints

•  Undertake education and prevention efforts

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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


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


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, 2014 ASR


Keeping Perspective

•  COMPLIANCE IS IMPORTANT, BUT PREVENTION AND RESPONSE IS MORE IMPORTANT


The Connections

•  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…

Essential Components Title IX/DCL/VAWA Guidance


The Connections

•  Objective fact finding

•  Thorough investigations and reports

•  The fact-finder and decision-maker should have adequate training or knowledge regarding sexual violence.

•  Adequate, Reliable and Impartial investigations

Essential Components Title IX/DCL/VAWA Guidance


New Policy Requirements

•  Several specific procedural protections/statements must be included in 2014 ASR

•  Some were derived or adapted from April 2011 DCL

•  Applicable to cases involving student AND employee complainants

•  Must align policies with ASR statements



•  [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

Institutional Commitment to Prevention



•  Sexual Assault, Domestic Violence, Dating Violence, and Stalking

•  Must include local and should include institutional definitions

•  Must include definition of consent in applicable jurisdiction

Definitions



•  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.

Reporting An Incident


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)



•  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

Victim (& Other Party) Confidentiality



•  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?

The reluctant complainant



•  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.

Written Notification



•  SAMPLE WRITTEN STATEMENT



•  Investigator skillset

•  Timelines

•  Concurrent criminal and IHE investigations

•  Employees are often the forgotten or under- attended population



•  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”

Explanation of Disciplinary Action



Question: Does that include legal counsel?




•  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”




•  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”

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”

Educational Requirements


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)?


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.


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


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.


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.


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.


What to do

•  Engage your community   Students   Faculty   Staff   Leadership   Local partners


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


Questions?

Jeffrey J. Nolan, Esq. ��[email protected] ��www.dinse.com ��

��Steven J. Healy

[email protected] www.margolishealy.com

Title IX, Meet Clery, Clery Meet Title IX: Implementing the VAWA Amendments

Education

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