Understanding TITLE IX, CAMPUS SaVE, VAWA & CLERY

December 2, 2014

Presented By: Bill Rudersdorf, ARM, CSP

Director - Risk Management EIIA 200 South Wacker Drive, Suite 1000

Chicago, IL 60606 800-537-8410 x235

brudersdorf@eiia.org

Natasha J. Baker Hirschfeld Kraemer LLP

(415) 835-9004 nbaker@hkemploymentlaw.com

Webinar Agenda • Understanding the requirements of Title

IX: What do you need to do? • Understanding the intersection of

Campus SaVE and Title IX: Which definitions, policies and training requirements?

2

Learning Outcomes • Understand all of the requirements that

govern campus sexual violence and sexual harassment.

• Learn about how key terms are interpreted and how your policies should incorporate these interpretations.

• Develop questions for part II of Webinar on December 10, 2014.

3

TITLE IX: Fundamentals

• Notice of Non-Discrimination

• Designate Title IX Coordinator

• Adopt and Publish Grievance Procedures

4

TITLE IX Fundamentals

• Notice of Non-Discrimination

– Must state school does not discriminate on the basis of sex in its education programs and activities and that it is required by Title IX not to discriminate

– Questions regarding Title IX may be referred to Title IX Coordinator or to OCR

5

TITLE IX: Fundamentals • Title IX Coordinator

– Oversees the school’s response to Title IX reports and complaints;

– Identifies and addresses patterns or systemic problems; and

– Should be informed of ALL aspects of Title IX reports or complaints, including confidentiality requests.

– Sample job description: www.itsonus.gov

6

TITLE IX: Fundamentals • Grievance Procedures – Required

Elements – Must be published; – Application to complaints against

employees, other students or third parties; – Provisions for adequate, reliable, and

impartial investigations;

7

TITLE IX: Fundamentals • Grievance Procedures – Required

Elements – Opportunity for complainant and accused

to present witnesses and evidence;

– Designated and reasonably prompt time frames for complaint process;

– Written notice to both parties of outcome of complaints; and

8

TITLE IX Fundamentals

• Grievance Procedures – Required Elements – Assurance that the school will take steps to

prevent recurrence of any sexual violence and remedy discriminatory effects, if appropriate.

9

Question Q: Who are mandatory reporters under

Title IX? To whom and what do they have to

report?

10

TITLE IX: Responsible Employees

Title IX and Responsible Employees: • Under Title IX, whether an individual is

obligated to report incidences of alleged sexual violence depends on whether the individual is a responsible employee.

11

TITLE IX: Responsible Employees

Responsible employees are any employees who: • Has the authority to redress sexual violence; • Has the duty of reporting sexual violence to Title IX

Coordinator or other school designee; • A student could reasonably believe has this authority

or duty.

12

Question Q: What employees are NOT required to report Title IX issues?

13

TITLE IX: Sanctuaries • A: Mental health counselors, pastoral

counselors, social workers, psychologists, health center employees, or any other person with a professional license requiring confidentiality.

14

TITLE IX: Sanctuaries

Professional counselors and pastoral counselors whose official responsibilities include providing counseling are not required to report any information regarding alleged sexual assault

15

TITLE IX: Sanctuaries Non-professional counselors or advocates, including those who work or volunteer in health centers, are not required to report allegations of sexual violence in a way that identifies the student, without the student’s consent.

16

Develop a Reporting Framework

• Designate required reporters. • Designate sanctuaries. • Train everyone. • Publicize the difference.

17

Question

• What are the training requirements under Title IX?

18

TITLE IX: Training • Responsible employees

– Those with authority to act must know how to respond to reports;

– Obligation to report sexual violence; – What should be included in a report; – Procedures for responding to student

confidentiality requests; and – Any consequences for failure to report.

19

TITLE IX: Training • Responsible employees must inform

students of the following: – Reporting obligations of responsible employees; – Students’ option to request confidentiality and

available confidential advocacy or counseling; – Their right to file a Title IX complaint; and – How to report a crime to local law enforcement.

20

TITLE IX: Training • Professional and Pastoral Counselors

and Non-Professional Counselors and Advocates – Reporting requirements; – Extent to which a complaint may be kept

confidential.

21

TITLE IX: Training • Employees Implementing Grievance

Procedures – Grievance procedures; – Information on working with and interviewing

parties; – Conduct that could constitute sexual violence; – Consent, including the role of drugs and alcohol;

22

TITLE IX: Training • Employees Implementing Grievance

Procedures – Proper standard of review for sexual violence; – How to determine credibility and evaluate

evidence while remaining impartial; – The need for accountability and remedial action;

and – Cultural awareness training on how sexual

violence can impact different students.

23

TITLE IX: Training • All Employees Likely to Witness or

Receive Complaints: – How to prevent and identify sexual violence; – Behaviors that may lead to sexual violence; – Bystander attitudes that may allow conduct to

continue; – Potential for revictimization;

24

TITLE IX: Training • All Employees Likely to Witness or

Receive Complaints: – Methods for responding to students who have

experienced sexual violence; and – Impact of trauma on victims and the person(s) to

whom misconduct is reported.

25

TITLE IX Training

• Students: – Title IX and what constitutes sexual

violence under applicable policies; – Institution’s definition of consent; – Definitions of inappropriate conduct; – Reporting options; – Grievance procedures; – Disciplinary code related to sexual

violence, including sanctions;

26

TITLE IX: Training • Students:

– Effects of trauma, including neurobiological changes;

– The role of drugs and alcohol in sexual violence;

– Bystander intervention; – How to report sexual violence to campus or

local law enforcement; and – Protection against retaliation.

27

Question

• Are those ALL of the requirements pertaining to campus sexual violence? Do we only need to worry about Title IX?

28

VAWA/CAMPUS SaVE Fundamentals

Institutions must have statements of policy related to dating violence, domestic violence, sexual assault and stalking.

29

VAWA/CAMPUS SaVE Fundamentals

Statement of Policy must include: • A description of programs to prevent

domestic violence, dating violence, sexual assault.

30

VAWA/CAMPUS SaVE Fundamentals

Statement of Policy must include: • A description of procedures that an

institution will follow once an incidence of domestic violence, dating violence, sexual assault or stalking has been reported, including grievance procedures.

31

VAWA/CAMPUS SaVE Fundamentals

Grievance Procedures: • Must be prompt, fair, and impartial disciplinary

proceeding; • Officials must be trained and do not have a conflict of

interest or bias for or against the accuser or the accused;

• The accuser and the accused have equal opportunities to have others present, including an advisor of their choice;

32

VAWA/CAMPUS SaVE Fundamentals

Grievance Procedures: • The proceeding must be completed in a reasonably

prompt timeframe; • The accuser and accused must be given timely

notice of meetings at which one or the other or both may be present;

• The accuser, the accused, and officials have timely and equal access to information;

33

VAWA/CAMPUS SaVE Fundamentals

Grievance Procedures: • The accuser and the accused must receive simultaneous

notification, in writing, of the following: – The result of the proceeding and any available appeal

procedures; – Any change to the results that occurs prior to the time the

results become final; and – When such results become final.

34

VAWA/CAMPUS SaVE Fundamentals

Policies should also include: • Information about protecting confidentiality; • Written notification of students and employees about

counseling, health, mental health, victim advocacy, legal assistance and other services; and

• Written notification of victims regarding options for changing living, academic, transportation or work situations.

35

VAWA/CAMPUS SaVE Common Question

Q: Are institutions required to allow parties to have attorneys as advisors?

36

Allowing an Advisor • A: Yes. Both parties must be allowed

to have an advisor of their choice. However, that advisor can be a “potted plant.”

37

VAWA/CAMPUS SaVE Training

New and Current Students and Employees – Primary Prevention & Awareness: • A statement that the institution prohibits the crimes of dating

violence, domestic violence, sexual assault, and stalking, as defined by regulations;

• The definitions of these terms in the applicable jurisdiction; • The definition of ‘‘consent,’’ in reference to sexual activity, in the

applicable jurisdiction; • A description of safe and positive options for bystander

intervention; information on risk reduction;

38

CAMPUS SaVE Training

New and Current Students and Employees – Primary Prevention & Awareness: • Possible sanctions or protective measures that an institution

may impose following a disciplinary proceeding; • Procedures victims should follow if an offense of this nature

occurs, including information on preserving evidence, where an offense should be reported, and options regarding campus or local law enforcement;

• Procedures for institutional disciplinary actions; and • Ongoing prevention and awareness campaigns.

39

• If Campus SaVE amended the Clery Act, are there existing Clery Act requirements that institutions should consider?

40

CLERY Fundamentals

Requires all postsecondary institutions participating in Title IV student financial aid programs to disclose campus crime statistics and security information.

41

CLERY Fundamentals

Policies That Should Be Included In Annual Security Reports: • Timely Warning Policy; • Annual Security Report Policy; • Crime Reporting Policy; • Security of and Access to Campus Policy; • Campus Law Enforcement Policy; • Statement on Use of Local Law Enforcement; • Alcohol & Drug Policies; • Substance Abuse Education Policy;

42

CLERY Fundamentals

Policies That Should Be Included In Annual Security Reports: • Sexual Offense Policy; • Campus Sex Crimes Prevention Act Statement

Policy; and • Retaliation Policy.

43

CLERY Fundamentals

Sexual Offense Policies Should Include: • A description of the education programs required by Campus

SaVE; • Procedures victims should follow if a rape, sexual assault,

domestic violence, dating violence or stalking (as outlined in Campus SaVE);

• Notification of Law Enforcement; • Availability of Counseling; • Written Notifications to Complainants; • Complainant Assistance;

44

CLERY Fundamentals

Sexual Offense Policies Should Include: • Procedures for Campus Disciplinary Action; • Information Regarding Protecting the Confidentiality of the

Complainant; • Written Explanation of Rights and Options to Students and

Employees; and • Sanctions for a Sexual Offense.

45

CLERY Training

Institutions must train their Campus Security Authorities. “Campus security authority” is a Clery-specific term that encompasses four groups of individuals and organizations associated with an institution: Campus Security Authorities: A campus police department or a campus security department of an institution. If your institution has a campus police or security department, those individuals are campus security authorities. A security department can be as small as one person.

46

CLERY Training

Campus Security Authorities: Any individual or individuals who have responsibility for campus security but who do not constitute a campus police department or a campus security department (e.g., an individual who is responsible for monitoring the entrance into institutional property). Include individuals who provide security at a campus parking kiosk, monitor access into a campus facility, act as event security or escort students around campus after dark.

47

CLERY Training

Campus Security Authorities Any individual or organization specified in an institution’s statement of campus security policy as an individual or organization to which students and employees should report criminal offenses. This includes any individual the campus community is directed to report criminal incidents to in addition to police or security-related personnel.

48

CLERY Training

Campus Security Authorities

An official of an institution who has significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline and campus judicial proceedings. An official is defined as any person who has the authority and the duty to take action or respond to particular issues on behalf of the institution.

49

CLERY Training

Campus Security Authorities Should Be Trained On: • The role of CSAs; • Good crime reporting recordkeeping; • The importance of documentation; • Clery geography; • Timely reporting; and • Crimes that must be counted in an institution’s crime

statistics report policy, including: – The definition of such crimes; – How the crimes should be reported (Hierarchy Rule)

50

Training Resources

51

Training Resources

• Internal • Local/state agencies, domestic violence and

sexual assault coalitions • Department of Education/White House Task Force • Online – EIIA partnered with online training

programs, free webinars via Clery Center, etc. • Third Parties – Title IX ASAP (disclosure – this is

my training program), NACUA, NASPA, etc. • www.vimeo.com/titleixasap • @titleixasap for updates

52

EIIA’s Title IX Resource Link

• https://www.eiia.org/members/Risk-Management/Regulatory/Title-IX.aspx

53

Questions & Answers

54