UNC Title IX Training Seminar, FEB 2013

University of North Carolina System

Title IX and Campus Security
Authority Training Program
February 13-14, 2013

Agenda

• Introductions
• About MHA Housekeeping Issues
• Schedule
• Topical Areas
• Digital Guidebook

© Margolis Healy & Associates, LLC
2

Faculty

• Steven J. Healy
• Gary J. Margolis, Ed.D.
• Jeffrey J. Nolan, Esq.

3

Schedule Day 1
8:30 a.m. – 8:45 a.m.: Opening & Introduction
8:45 a.m. – 9:45 a.m.: Setting the Stage: Overview of Title IX Institutional
Obligations and Enforcement Context
9:45 a.m. – 9:55 a.m.: Introduction to Capstone Case Study
10:00 a.m. – 12:00 p.m.: Understanding Sexual & Gender Violence on
Campus
12:00 p.m. – 1:00 p.m.: Lunch
1:00 p.m. – 2:00 p.m.: Duties & Responsibilities of a Title IX Coordinator
2:00 p.m. – 2:15 p.m.: Inject 1, Capstone Case Study Discussion
2:20 p.m. – 3:20 p.m.: Defining Roles & Confronting Conflict
3:20 p.m. – 3:30 p.m.: Break
3:30 p.m. – 4:30 p.m.: Complaint Intake, Confidentiality & Conducting
Investigations
4:30 p.m. – 4:45 p.m.: Injects 2 & 3, Capstone Case Study Discussion
and Day 1 Wrap-Up
4

Schedule Day 2

8:30 a.m. – 8:45 a.m.: Day 2 Opening
8:45 a.m. – 9:45 a.m.: Conducting Hearings, Respecting Rights
9:45 a.m. – 9:55 a.m.: Break
9:55 a.m. – 10:40 a.m.: Navigating the Legislative Minefield – The
Intersection Between Clery, FERPA, Title IX and
Other Legislative Mandates
10:40 a.m. – 11:00 a.m.: Title IX Training, Education & Prevention
Requirements
11:05 a.m. – 11:45 a.m.: Injects 4 & 5, Final Case Study
Discussion
11:45 a.m. – 12:00 p.m.: Title IX Program Closing
12:00 p.m. – 12:30 p.m. Lunch


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Setting the Stage:
Overview of Title IX
Institutional Obligations and
Enforcement Context

Jeffrey J. Nolan, Esq.

Agenda

• Statutory, regulatory requirements and OCR
guidance
• OCR investigation/enforcement process
• Sexual harassment/violence definitions
• Scope of Title IX coverage
• Summary of institutional obligations

9

Title IX

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.

10

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 . . .”

11

Dep’t of Educ. Office for Civil
Rights

• “The mission of the Office for Civil Rights is to
ensure equal access to education and to
promote educational excellence throughout
the nation through vigorous enforcement of
civil rights.”
• Enforces laws that prohibit discrimination in
education on basis of race, color, national
origin (Title VI), sex (Title IX), disability
(Section 504 & ADA) and age (Age Discrim.
Act 1975)
12

Dep’t of Educ. Office for Civil
Rights

• OCR Activities, e.g.:
- Investigates individual complaints
- Conducts agency-initiated compliance
reviews
- Provides technical assistance to promote
voluntary compliance

13

OCR Enforcement Process

• Theoretically, negative OCR findings can
result in:
- loss of federal funding through Dept. of
ED proceedings, or
- referral to Dept. of Justice for litigation

14

OCR Enforcement Process

• Practically, resolutions are negotiated with recipients,
who take “voluntary remedial actions”
- Policy issues: policy deficiencies are remedied
- Example individual complaint remedies:
 Providing changes in class and residential
arrangements
 Providing counseling, academic, medical and other
supports and accommodations
 Providing broad-based training for students,
employees
15

Civil Remedies
• Title IX nondiscrimination obligations may be
enforced in court by individual or class
actions
• “deliberate indifference” standard applies
• Compensatory damages and injunctive relief
available
• Plaintiff’s attorney’s fees and costs available
• State nondiscrimination statutes may provide
additional remedies, different liability
standards
16

OCR Title IX Resources

• April 2011 OCR Dear Colleague Letter:
http://www2.ed.gov/about/offices/list/ocr/letters/collea
gue-201104.pdf

• OCR 2001 Revised Sexual Harassment
Guidance:
http://www2.ed.gov/about/offices/list/ocr/docs/shguid
e.pdf

• 2010 Dear Colleague letter on Harassment
and Bullying:
http://www2.ed.gov/about/offices/list/ocr/letters/collea
gue-201010.pdf
17

Sexual Harassment
Definition
• Unwelcome conduct of a sexual nature
- includes unwelcome sexual advances, requests for
sexual favors, and other verbal, nonverbal, or
physical conduct of a sexual nature.
• Student-to-student harassment:
- creates hostile environment if conduct is sufficiently
serious that it interferes with or limits a student’s
ability to participate in or benefit from the school’s
program.
• The more severe the conduct, the less need there is to
show a repetitive series of incidents to prove hostile
environment, particularly if the harassment is physical
(e.g. rape=hostile environment)
18

Sexual Violence Definition

• 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
19

Scope of Coverage

• Title IX protects students from sexual
harassment in an institution’s education
programs and activities, including:
- All academic, educational, extracurricular,
athletic, and other programs of the institution
- On-campus, off-campus, in transit, sponsored at
other locations, etc.

20

Scope of Coverage

• Institutions may have obligation to respond
to student-on-student sexual harassment that
initially occurred off campus and outside
institution’s education program or activity
- If student files a complaint re off-campus
conduct, institution “must process the complaint in
accordance with its established procedures.”
- Should consider and address on-campus
continuing effects of off-campus sexual harassment
(e.g., on-campus retaliation by alleged perpetrator
or friends)
21

Scope of Coverage
• Title IX protects third parties from sexual
harassment or violence in an institution’s
education programs and activities
- E.g.: Title IX protects a high school student
participating in a college’s recruitment program, a
visiting student athlete, and a visitor in a school’s on-
campus residence hall

• Title IX prohibits
discrimination/harassment by faculty, staff
• Title IX protects employees from sexual
harassment
22

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)
23

Summary of Institutional
Obligations

• If institution knows or reasonably should know
about sexual harassment that creates a hostile
environment, 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.

24

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.”
25

Obligations

• Investigate complaints adequately, reliably
and impartially

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

• Undertake education and prevention efforts

26

QUESTIONS?


Understanding Sexual &
Gender Violence on
Campus

Dr. Gary J. Margolis

Our conversation today...

• Sexual Assault
• Stalking
• Intimate Partner Violence
• Reluctance to Report
• Trauma
• Impact on Student Development


Sexual Assault

In a survey of more than 6000 students at 32 colleges
and universities in the U.S., it was found that:
• One in four women had been victims of rape or
attempted rape
• Only 27% of the women considered themselves
to be victims of rape, although their assaults met
the legal definition of rape
• 84% of the rape victims knew their attacker


Sexual Assault

• 57% of the rapes happened on dates
• 42% told no one of the assault, and only
5% reported to the police

Warshaw, Robin. I Never Called it Rape: The Ms. Report on Recognizing and
Surviving Date and Acquaintance Rape. New York: Harper Perennial, 1994.


What about the guys?

• More than 8% of male college students
committed acts that met the legal definition of
rape or sexual assault (Warshaw, 1988)(Lisak)
• 88% of men whose actions came under the legal
definition of rape were adamant that their
behavior did not constitute rape. (Warshaw, 1988)
• 13% of Naval recruits admitted perpetrating rape or
attempted rape prior to or during 1st year of military
service. (McWhorter, Stander, Merrill, 2009)


Sexual Assault

At least 20% of American men report
having perpetrated sexual assault and 5
percent report having committed rape

(Crowell and Burgess 1996; Spitzberg 1999; Tjaden and Thoennes 2000)


Sexual Assault

• Alcohol and other substances are used
intentionally by men who commit rape
(alcohol is the “weapon of choice”)
• 55% of men who admitted to committing
rape and 53% of women who
experienced rape were drinking at the
time
• If both parties are drinking, society often
blames the victim and excuses the
offender

Barriers to reporting

• Confusion; was that rape?
• Self blame
• Minimization
• Fear of not being believed
• Fear of the response of others (especially
in specialized communities such as
LGBTQ)
• Fear of offender

Stalking


What is Stalking?

• Stalking generally refers to repeated
harassing or threatening behavior
putting another person in fear

• Experiencing repeated, obsessive,
and frightening behavior that
made the victim afraid or
concerned for safety

Stalking is a...

Course of Conduct Crime
not
Incident Based Crime


Research

• National Violence Against Women
Survey – 1998 (Tjaden & Thoennes)
• National Sexual Victimization of
College Women Survey – 2000 (Fisher,
Cullen & Turner)
• Femicide Study – 1999 (McFarlane et
al.)
• BJS 2009

Relationship to Stalker

80.3% of campus stalking victims knew
their stalkers
• 42.5% stalked by a current/former
boyfriend
• 24.5% stalked by a classmate
• 10.3% stalked by an acquaintance
• 5.6% stalked by a friend
• 5.6% stalked by a coworker

Prevalence of Stalking
• Estimated 3.4 million people are stalked
annually
- Stalking Victimization in the United States, BJS (2009)

• 1 out of every 12 U.S. Women (8.2
million) and 1 out of every 45 U.S. men
(2 million) has been stalked at some
point
- National Violence Against Women Survey (1998)

• 13.1% of college women were stalked
during one semester of college
- The Sexual Victimization of College Women (2000)


IPV and Stalking

• 81% of stalking victims who were stalked
by an intimate partner reported that they
had also been physically assaulted by
that partner.
• 31% were also sexually assaulted by
that partner

NVAW Survey


Gender of Stalking Victims

Gender of Stalking Victims

78% F emale

22% Male


Stalkers

• 94% of female victims were stalked
by men
• 60% of male victims were stalked by
men
• Overall, 87% of stalkers were men


Stalking on Campus

• Stalking incidents lasted an average of
60 days
• 30% of victims were stalked only off
campus
• 66% of victims reported being stalked at
least 2 – 6 times per week

- National Sexual Victimization of College Women Survey (2000)


Relationship Between V & O
Relationship Between Victim and Offender
Percentage of Cases
Spouse/Ex-spouse 38%
13%

Co-habiting Partner/Ex-partner 10%
9%

Date/Former Date 14%
10%

Relative Other Than Spouse 4%
2%

Aquaintance 19%
34%

Stranger 23%
36%

0% 10% 20% 30% 40%

Female victims (N=650)
Male victims (N=179)


Stalking Behaviors
Stalking Behaviors
Percentage of cases
82%
Followed, spied on, stood outside home, etc.
72%

Made unwanted phone calls 61%
42%

33%
Sent/left unwanted letters, items
27%

Vandalism 29%
30%

Killed or threatened pet 9%
6%

0% 18% 36% 54% 72% 90%

Female Victims (N=625)
Male Victims (N=168)


Prevalence– Femicide Study

• 76% of femicide cases involved at least
one episode of stalking within 12 months
prior to the murder
• 85% of attempted femicide cases
involved at least one episode of stalking
within 12 months prior to the attempted
murder


Physical Abuse & Stalking
Physical Abuse and Stalking
Percentage of cases

89%
100% 91%

80% 68% 56%

60%
40%

20%
0%
Nonabused victims who were stalked
Abused victims who were stalked

Femicide Victims
Attempted Femicide Victims


Stalking Behaviors
Stalking Behaviors
Percentages of cases

100%
80% 53%
60% 47% 45%
60% 46% 43%
40%
20%
0%
Waited outside house/school/work
Followed/Spied on Unwanted phone calls

Femicide Victims
Attempted Femicide Victims


Reporting Stalking Incidents

Overall, 83.1% of stalking incidents were
NOT reported to police
BUT….
93.4% of victims confided in
someone, most often a friend, that they
were being stalked


Stalking Reported to Police

Reported to Law Enforcement
Reported to Law Enforcement
Campus Police
Campus Police
Municipal/Local/City Police/911
Municipal/Local/City Police/911
County Sheriff
County Sheriff
State Police

State Police
Other

Other
0% 20% 40% 60% 80% 100%

0% 20% 40% 60% 80%

Both On/Off-Campus Stalking
© Margolis Healy & Associates, LLC Off-Campus Stalking On-Campus Stalking

Reports to Law Enforcement

• 54% of femicide victims reported stalking
to police before they were killed by their
stalkers
• 46% of attempted femicide victims
reported stalking to police before the
attempted murder


Impact on Victims

“It’s going to take getting a bullet put in
my head before people understand how
serious this is.”
Statement by Peggy Klinke made one
month before she was killed in January
2003


Intimate Partner Violence
(IPV)



Willful
intimidation, assault, battery, sexual
assault or other abusive behavior
perpetrated by one family
member, household member, domestic
partner, or intimate partner; in many
states it includes roommates.



• Power, control and
authority
• Domination
• Isolation
• Verbal and physical
abuse


IPV – The Reality

32% of students report dating
violence by a previous
partner, and 21% report
violence by a current partner.

C. Sellers and M. Bromley, “Violent Behavior in College Student Dating
Relationships,” Journal of Contemporary Justice, (1996).


IPV – The Reality

Females ages 16-24 are more vulnerable to
intimate partner violence than any other
age group– at a rate almost triple the
national average.
U.S. Department of Justice, Bureau of Justice Statistics, Special Report:
Intimate Partner Violence and Age of Victim, 1993-99 (Oct. 2001, rev.
11/28/01).

Domestic violence is the leading cause of
injury to women outnumbering car accidents,
rapes and muggings combined.


Victims’ Reluctance to Report

• Sexual violence myths, misperceptions and
victim blaming impact the pursuit of justice…
• Victims need reassurance that reporting is the
right thing to do…
• Ensure coordinated, compassionate and
professional response for victim/survivor
• Promote victim / survivor empowerment



• Fear of hostile treatment/disbelief by police
prevents almost 25% of college rape victims
from reporting (Fisher)
• Unsupportive or hostile response put victims
at a higher risk for post-traumatic stress
disorder & life long impacts (Kaukinen &DeMaris 2009)
• NIJ estimates annual cost of sexual violence
exceeds $127 billion



• Victims fear re-victimization by University
Judicial Process – Criminal Justice System
• Don’t identify act as rape, or being a rape
victim
• Concerns involving offender – social circles
• Family reaction
• Fear of being labeled, rumors (technology)



• Alcohol / drug use
• Fear of hostile treatment by Police or
University
• Lack of confidence in reporting process
• Lack of consequences for offender



While there is no “normal” victim response, most
experience the following concerns and fears:
• “I can’t believe this is happening…”
• “It’s my fault… “I’m so ashamed…”
• “No one will believe me…”
• “How can I trust anyone…”
• “I thought I was going to die / be killed…”
• “I’m afraid and so overwhelmed…”
• “What are people going to think…”


Impact of Trauma

Credit to Dr. Sheri Vanino


Victim Doesn’t Fight Back/No Injuries

• “Real” Victims Fight
• “Real” Victims
Scream
• “Real” Victims Bleed

OH, REALLY. . . . . .


Victim Doesn’t Fight Back/No Injuries

• 80% of college rape victims have no physical
injuries from the assault
• 50% Physically Fought Back
• 50% Say No


Why 80% of Victims Don’t Fight Back
• Confusion
• Fear - 49% of rape victims describe being fearful of
death or serious injury during an assault
• Self-preservation - 72% of rape victims report using
“self-protective” measures, meaning:
- 19% Resisted
- 11% Warned
- 11% Appeased the offender
- 31% Other
• Too intoxicated to fight back
• Dissociation
• Fight/Flight/Freeze

Who do you identify with?


The Good News:

Prey Have Many
Choices
• Flight
• Freeze
• Fight


What Do You See?


How Trauma Influences Victim Response

What we experience
and how we interpret it Branch?
(including our history)
determines what part Snake?
of our brain will take
precedence and
react…


Fight, Flight or Freeze

Branch Snake!
Cognitive and Higher Reactive or Survival Functioning:
Functioning are Activated Flight or Fight

Normal Brain Stress Chemicals Released
Chemistry
Bypasses Cognitive and Higher
Functioning
Assessment & Decision Making
Based on Previous Learning If Stress Continues, Additional
Chemicals Facilitate Freezing
Action Based on Decision
Making

; Dr. Sheri Vanino

Why Would Freezing Be Important
??

; Dr. Sheri Vanino

Freezing Can Lead To

• Not fighting back
• Not saying no
• Dissociation
- During the trauma
- On the stand
- In your office
- While attending court

; Dr. Sheri Vanino

Impact on Student Development

Credit to Dr. Eugene Zdziarski


Maslow’s Hierarchy

Psychology Wiki
http://psychology.wikia.com/wiki/Maslow's_hierarchy_of_needs

Emotional/Psychological Effects of Sexual
Violence

• Shock/denial • Loss of self-esteem
• Irritability/anger • Loss of security/loss of trust
in others
• Depression
• Guilt/shame/embarrassment
• Social withdrawal
• Impaired memory
• Numbing/apathy
(detachment, loss of • Loss of appetite
caring)
• Suicidal ideation (thoughts of
• Restricted affect suicide and death)
(reduced ability to
express emotions) • Substance Abuse
• Nightmares/flashbacks • Psychological disorders
• Difficulty concentrating
© 2008 National Center for Victims of Crime

Impact of Sexual Violence

• Loss of self-esteem
• Social withdrawal
• Loss of trust in others
• Loss of security

Psychology Wiki http://psychology.wikia.com/wiki/Maslow's_hierarchy_of_needs


Student Outcomes

• Academic Performance Declines
• Lack of Engagement
• Social Isolation
• Suicide Risk
• Withdrawal from Institution


Summary

• Sexual Assault
• Stalking
• Intimate Partner Violence
• Reluctance to Report
• Trauma
• Impact on Student Development


Duties & Responsibilities
of a
Title IX Coordinator

Defining Roles &
Confronting Conflict
Steven J. Healy

Agenda

• Campuses have unique challenges due
to climate, environment and culture

• We can overcome these challenges

• Collaboration, communication,
coordination and capitalization are keys

96

Challenge # 1

Many “touch points” are both
positive and potentially
negative

97

Many Touch Points
• Campus public safety (sworn and non-
sworn)
• Student Affairs (Dean, Residence
Life, RAs)
• Health Services
• Counseling Center
• Women’s Center
• Advocates
• Off-campus resources
98

Many Touch Points

Challenges
• Poor collaboration leads to cross
purposes and poor support for
survivors
• Different institutional policies
regarding reporting complicates the
process

99

Many Touch Points

Successes
• Strong collaboration (before incidents are
reported) ensures survivor’s interest
remain top priority
• Access to advocates; advocates
embedded in PD; appropriate protocols

100

Challenge #2

Coordination with local
authorities is often a source of
tension

101

Coordination w/local
authorities

• Campus public safety

• Local police

• Student Affairs

• Prosecution

• Advocates

102

authorities

• What are community expectations? There are
actually several communities…
• Do local police handle all cases? Are there
appropriate protocols in place?
• Is there a county-wide task force?
• Does UPD handle, and if so, what about the
administrative inquiry/investigation

103

authorities
Challenges
• Law enforcement perspective:
- Are UPD officers trained to appropriate level
- Are they representing survivor, institution, or
“the people?”
• Adjudication perspective:
- Deans want to move swiftly (Title IX)
- Prosecutors want to build best possible case

104

authorities
Challenges
• Police investigations are not determinative of
whether sexual harassment/violence violates Title
IX
• Police investigations do not relieve institutions of
Title IX duty to resolve sexual violence complaints
promptly and equitably
• Institutions cannot wait for the conclusion of a
criminal investigation or criminal proceeding to
begin their own Title IX investigation and, if
needed, must take immediate steps to protect the
student in the educational setting.
105

authorities

Successes
• Pre-coordination
• Close coordination when incident
reported

106

authorities

• Develop respectful working relationship (and
good contacts) with local law enforcement.
• Keep in touch with law enforcement to
determine the status of their work and to let
them know the status of yours
• Ensure that law enforcement understands that
institution has obligation to protect campus
community while law enforcement fact-
gathering is in progress

107

authorities
• If criminal charges are pending and you are a
public institution, respondent has a due
process right to have an attorney present at the
hearing
- Attorney serves as respondent’s advisor, not
active participant (unless your hearing
procedure allows for that)
- Title IX demands parity for complainant and
respondent, so complainant would be entitled
to have an attorney present as well
• Dealing with requests to hold the institution’s
case in abeyance
108

authorities

• “Double jeopardy” argument – don’t fall for it
• Did the prosecutor decline to prosecute? Keep
moving forward…
- Note: If the criminal case is over, consider allowing
respondent (and complainant) an attorney if an
appeal is pending

109

Challenge #3

Access to on & off campus
support services

110

Access to support services

• Not all campuses have victim support
services. Survivors rely on community
resources…
• Local providers may not understand
campus processes or culture. Could lead
to poor advice or worst, further danger for
the survivor…
• Reverse also possible

111

Access to support services

Successes
• On and off campus advocates work closely
together
- Some jurisdictions, advocates serve both
community and campus (capitalization)
• Close coordination and communication
- Local support services understand campus
culture and processes
- Regular meetings to exercise a coordinated
response

112

Challenge #4

Lack of
understanding/knowledge
about gender/sex crimes

113

Lack of understanding &
knowledge

• Interconnected nature of gender and
sexual violence crimes
- Stalking, sexual assault, intimate partner
violence
• Failure to acknowledge the prevalence of
relationship violence

114

Lack of understanding &
knowledge
Successes
• Fully informed campus constituents
(e.g., public safety, student
affairs, legal, counseling center, health
center, etc.)
• VAWA Grants require joint training
• Presence of viable crime prevention and
security awareness programs
- Men Against Rape programs
- Bystander Intervention (UNH)

Opportunities for
Success

• Collaboration
• Communication
• Coordination
• Capitalization


Complaint Intake,
Confidentiality &
Conducting Investigations
Dr. Gary J. Margolis

Experience has taught us…
• A Multi-disciplinary trained response is
critical for the effective response to sexual
violence
• Training and exercise with the policy and
those responsible for response, investigation
and findings, is essential
• First
responders, investigators, advocates, SANE, pr
osecutors and institutional administrators need
advanced training to handle reports of sexual
violence

Complainant’s First Impression

• Complainants need reassurance that reporting
the act of sexual violence is the right thing to do
• What message is the institution sending
about sexual violence awareness & prevention?
• Complainants will be evaluating your first
response to determine if you are capable of a
compassionate, coordinated and professional
response


Receiving Complaints

Employees likely to receive complaints initially (e.g.,
medical, counseling, public safety, coaches,
residence life, student affairs, etc.) must:
• Be trained to recognize reports of sexual
harassment and sexual violence
• Know where on campus (and off-campus) to
direct complainants for further support,
procedures, etc.
• Understand limits on requests for
confidentiality
• Understand what “not to say” in intake
discussion

Receiving Complaints, cont.

At all intake levels, complainants should be
told:
• Title IX prohibits retaliation
• Institution will take steps to prevent retaliation
• Institution will also take strong responsive
action if retaliation occurs
• Complainant has right to file criminal
complaint, before, during or after any
institutional Title IX investigation



Once complainant is in touch with appropriate campus
office(s), assistance for complainant should be
coordinated, e.g.:
• Medical
• Counseling
• Changes in academic, residential arrangements
• Connection with advocacy groups (e.g., for
support and assistance institution cannot
provide, such as obtaining a restraining order)
• Interim relief from recent/pending discipline?
• Other appropriate available resources



• Don’t require a written complaint – verbal is
sufficient (but written is preferable)
• Should investigate complaints received from
third parties (e.g., parents, friends, etc.)



• If have separate procedures for complaints
against students, faculty, staff and/or visitors,
consider developing flow chart that shows
where to bring complaints & how procedures
interrelate
• Consider developing short document (one
for complainant, one for respondent)
summarizing most relevant portions of
procedures & provide to parties along with
procedures

Interim Measures

Consider whether interim measures are appropriate
immediately upon receiving complaint
Examples include:
• Separating the parties (changing academic
schedules, housing)
• Instructing the respondent not to have contact with
the complainant or to go to areas where the
complainant is expected to be present
• Interim suspension: Justified if the respondent’s
remaining part of the community appears reasonably
to pose a risk of danger (e.g., stalking, further
violence, retaliation); At public institutions, offer a
pre-suspension hearing

Confidentiality Issues (Per OCR)

“If the complainant requests confidentiality or asks that
the complaint not be pursued, the school should take all
reasonable steps to investigate and respond to the
complaint consistent with the request for confidentiality or
request not to pursue an investigation.”
“If a complainant insists that his or her name or other
identifiable information not be disclosed to the alleged
perpetrator, the school should inform the complainant
that its ability to respond may be limited.”
April 4, 2011 Dear Colleague
Letter


“In some cases, such as those where the school is
required to report the incident to local law
enforcement or other officials, the school may not be
able to maintain the complainant’s confidentiality.”
“The school should inform the complainant if it cannot
ensure confidentiality.”
“Even if the school cannot take disciplinary action
against the alleged harasser because the
complainant insists on confidentiality, it should pursue
other steps to limit the effects of the alleged
harassment and prevent its recurrence.”

(e.g.: education and prevention programs)

Requests for Confidentiality - Suggested
Solutions

• When the student comes in, be clear up front
that if you know, you may have to act
• Be comforting, let student know you want to
help, but respect him/her and want him/her
to retain control over what happens and when


Requests for Confidentiality - Suggested Solutions
(IF No Current/Future Threat)

Determine why complainant is reluctant
• That others will know? Discuss the level of confidentiality you
can offer
• Retaliation by Respondent or others? Discuss your
institutional response to retaliation
• That a criminal investigation will ensue? Discuss
complainant’s options regarding involvement in a criminal
process (be careful not to make statements that dissuade)

Emphasize that the request for confidentiality
may limit the institution’s ability to respond


Requests for Confidentiality – Suggested
Solutions (IF No Current/Future Threat)

• Let student know about campus resources
that can offer a confidential “listening ear,”
- offer to walk there with the student or have staff
come over to your office to see the student

• Be clear that you care, the institution cares
and when student is ready for the institution to
act, to come back to talk with you


Requests for Confidentiality – Suggested Solutions

• Make sure your confidential campus resources
are all knowledgeable about your policies
and procedures so they can be of assistance
to the student when/if they decide to come
forward
• Be certain your confidential resources are
trained re Title IX, and support institutional
processes


Confidentiality Issues for Confidential Resources

• Be cognizant of any applicable state law re
need or ability to breach privilege due to risk of
imminent harm
• Understand institutional processes and
support student access where appropriate
• Support student access to law enforcement
and other resources where appropriate
• Document all communications re whether to
pursue institutional and outside processes


• Give the student a copy of the applicable
policy, procedures and your card
• Document any communications re not
investigating:
- this must be done carefully to avoid the appearance
of sweeping under the rug


Weighing Current/Future Threats

If complainant continues to insist on complete
confidentiality, institution “should evaluate that request in the
context of its responsibility to provide a safe and
nondiscriminatory environment for all students.”
Institution may weigh confidentiality request against:
• seriousness of the alleged harassment;
• complainant’s age;
• whether there have been other harassment complaints
about the same individual; and
• the alleged harasser’s potential right to review documents
re allegations if contained in a FERPA “education record”


(If Current/Future Threat Present)

If need to investigate without complainant’s cooperation:
• Rely on other witnesses?
• Look to any other complaints involving this
respondent?
• Consider whether you can proceed fairly in some
fashion without complainant’s cooperation
• There will be significant constraints if complainant
insists on confidentiality and there are no witnesses,
etc., but always focus on what you can do
• Increased training efforts would be one
possible/partial response

Preparing to Investigate

• Hire knowledgeable and experienced
investigators, or develop them from existing
staff
• Ensure investigators understand their role as a
neutral party, not advocates
• Ensure investigators have regular contact with
the Title IX Coordinator


Preparing to Investigate
• Impartial investigator
- No bias or conflict of interest
- Consider giving the parties an opportunity to object to the
investigator
- Use a different investigator if you feel there is a possible
or actual conflict
- Per OCR, should not be Title IX Coordinator or
college/university attorney, which could present a conflict
of interest
- Per OCR, should have adequate training or knowledge
regarding sexual violence
- Per OCR, do not rely on police or insurance
investigations. The institution needs to conduct its own
review

Effective Investigations

Tools for Effective Investigations


I. Recognize impact of trauma on investigations
• There is no “normal” victim response
• Most complainants/victims/survivors do not physically resist
• Most complainants/victims/survivors who report do so after
some delay
• Most complainants/victims/survivors have difficulty
remembering all the details or sequence of the sexual assault
• Complainants/victims/survivors experience trauma reactions
on an ongoing basis after the assault
• We can use expert witnesses (through training) to explain
impact of trauma



II. Understand Reluctance to Report
• Complainants/victims/survivors first impression matters…
• Build rapport/trust, reassure…
• Work with and maintain relationships with advocates
• The recipe for a bad investigation is to form a hypothesis and
try to prove it (my “gut” tells me…)
• The strategy for a good investigation is to examine all the
evidence and let it take you to the truth
• Approach a case believing that “something” occurred, victims
are sensitive to this



III. Corroboration of details is essential

• Physical evidence: exam, photos, digital forensics/social
media/hidden recordings, etc
• Witness accounts from before and after assault
• Outcry witnesses (person who first hears an allegation)
• Stalking or abuse behavior
• Documentation of sensory and peripheral details from the
victim’s perspective - What did “no” look like? What did fear
feel like?
• Follow up to see the effects of ongoing trauma in victim’s
life


IV. Focus on Respondent’s behavior, not Complainant’s
• Investigate pre and post assault behavior
• “He said, she said” becomes “He said, they said”
• Why did s/he choose/target the
complainant/victim/survivor?
• How did s/he manipulate the environment and
circumstances to get the victim into a position of
vulnerability?
- Role of alcohol or drugs
- Chosen location for the assault
- Grooming behavior
- Contrived circumstances


V. Gather information about the Respondent

• History/background
• Social circles for other complainants and interrelated crimes
• Social media, pre and post assault messages & calls
• Develop interview strategy (tie in offender behavior,
background, sexual violence awareness prevention)



VI. Thorough Documentation
• Goal of investigation is to be objective and thorough
• While every case is different, investigations must be
consistent and thorough (Policy)
• Detailed case documentation/report writing
• Supervisory review of all cases
• Multi-disciplinary case audits, after action review
• Seek expert guidance/testimony when uncertain
• Pursue Justice & Fairness…


Behind the Scenes

• Ensure interim measures are effective
• Keep relevant administrators (as determined
by the investigator) apprised of investigation
progress
• Consult with Title IX Coordinator and Legal
Counsel
• Consult with media relations, as appropriate


Conducting Hearings,
Respecting Rights

Steven J. Healy

Sources of Rights

• Contractual/student handbook rights
(rights granted by your institution)

• Constitutional Due Process (public
institutions only)

• Rights granted by state constitution
(publics)

• Rights granted by federal or state law
(e.g., Title IX, Clery Act, FERPA, state
nondiscrimination statutes)

Student handbook/contract
rights

• Courts routinely find student handbook
procedures to be enforceable as contracts
• Concept applies to private and public
institutions
• Since institutions wrote and can change
procedures, courts:
- apply them strictly as written
- construe any ambiguities in favor of students


What is Constitutional Due
Process?
• 14th Amendment
• Government cannot deprive you of a
liberty or property interest without “due
process”
• No right to go to college, but once
attending, the right to remain a student is
“an interest of extremely great value”
• Two types: procedural (what process is
due) and substantive (action won’t be
arbitrary or capricious)

What Constitutional Process is Due in a
Student Disciplinary Hearing?

Balance between
• The (responding) student’s interest

• The school’s interest, including the burden
of additional procedural requirements

• The risk of erroneous deprivation versus
the value of additional proceedings


Minimum Due Process Required When
Student Could Face Expulsion

• Notice (statement of specific charge)

• An opportunity to defend oneself, including
providing own witnesses and other evidence


Minimum Due Process Required When
Student Could Face Expulsion

• An impartial decision maker

• A report of the findings

• Double check that more isn’t offered by
state constitution/law


Due Process and Title IX

• Per OCR: “Public . . . Schools must provide
due process to the alleged perpetrator.
However, schools should ensure that steps
taken to accord due process rights to the
alleged perpetrator do not restrict or
unnecessarily delay the Title IX protections for
the complainant.”
• Should focus on rights of both complainant and
respondent
• What one party gets, so does the other

“Prompt, Equitable” Procedures under Title IX

• In general, institutions must provide:
− Notice of sexual harassment/violence grievance
procedures and where complaints may be filed
− Adequate, reliable and impartial review, including
opportunity of complainant and respondent to
present witnesses and other evidence
− Designated and reasonably prompt time frames
− Notice of the outcome of the hearing
− Assurance that institution will take steps to prevent
recurrence of harassment/violence and will correct
its discriminatory effects

Investigation/Grievance
Procedures

• Overall structure of procedures not mandated by
OCR – Choices could include, e.g.:
− Stand-alone sexual harassment/violence
investigation or investigation/hearing
procedures
− Student disciplinary hearing procedures that
apply special Title IX-compliant features only in
sexual harassment/violence cases
− Student disciplinary hearing procedures that
apply Title IX-compliant features in all cases


Title IX Minimum Procedural Requirements

• In investigations and hearings, parties
must have equal opportunity to present
relevant witnesses and other evidence
• Both parties must have equal opportunity
to have support people and counsel
present (if any counsel are permitted)


Title IX Minimum Procedural
Requirements

• Both parties must be afforded similar and
timely access to any information that will be
used at a hearing, similar pre-hearing
meetings, ability to present character
witnesses, review statements, etc.

• OCR strongly discourages schools from
allowing the parties personally to question
or cross-examine each other during the
hearing


Title IX Minimum Procedural Requirements

• Use the appropriate standard of review
(preponderance of the evidence)
• Per OCR, no separate procedures for student
athletes
• OCR recommends policy statement to effect that:
- Institution’s primary concern is student safety
- Other rules violations will be addressed
separately from a sexual violence allegation, and
- Drug/alcohol use never makes complainant at
fault for sexual violence

Title IX Minimum Procedural
Requirements

• Timeliness:
• Time frames must be specified for time in which:
- Major events in investigations/hearings will
occur
- School will conduct full investigation of
complaint (OCR expects 60 days max)
- Parties will be notified regarding outcome of
complaint
- Parties may file an appeal, if applicable

Additional Procedure-Related
Requirements

• All persons involved in implementing grievance
procedures (e.g., Title IX
coordinators, investigators, and adjudicators) must
have training or experience in handling complaints of
sexual harassment and sexual violence, and in the
grievance procedures.
• Training also should include applicable confidentiality
requirements.
• In sexual violence cases, the fact-finder and decision-
maker also should have adequate training or
knowledge regarding sexual violence.

Informal Resolution
• OCR states that this is never appropriate for cases
involving sexual violence
• OCR states that it may be used for other forms of
sexual harassment, provided it’s voluntary and the
complainant can request that the informal process
end and a formal process begin at any time. A
neutral third party should be present (not just
complainant and respondent).
• Due process would demand the same for
respondent, that respondent could request a formal
process at any time as well (and presumably
OCR’s statements about parity for the parties
would demand the same)

Informal Resolution, cont.

• The institution should reserve the right to
end mediation and move to the formal
process as it determines appropriate

• Regardless of what the parties may agree
to, the institution should be certain that the
resolution meets its needs to ensure the
behavior is not repeated toward
complainant or others


At the Hearing
• Use neutral terminology
(e.g., complainant, not survivor or victim)
• Impartial fact finder/decision-maker
– No malice, no bias, no conflict of interest
– Consider giving the parties an opportunity
to object to the decision-maker on the basis
of lack of impartiality
– No constraints on who may be decision-
maker, but ensure you can act throughout
the year

At the Hearing, cont.

• Impartial fact finder/decision-maker
– Consider the value of having a Title IX expert as
your decision-maker, versus a panel of members
of the University community
– Per OCR, should not be Title IX Coordinator or
university attorney, which could present a conflict
of interest
– Per OCR, fact finder/decision-maker should have
adequate training or knowledge regarding sexual
violence

• Open or closed hearing?
– Suggest closed, even if open for other matters
– Never let this decision rest with respondent (which doesn’t meet
Title IX parity standards anyway)

• Physical layout
– If complainant and respondent will be in the same room, allow
for physical separation
– Consider visual separation, such as a screen

• Timing
– It will be an emotional situation for both parties. Be certain to
allow time for breaks, and take them as scheduled (and as
appropriate when requested)

• Per OCR, must maintain documentation of hearing
(written findings of fact, transcripts or audio recordings)
• Support persons
– Consider allowing in cases involving sexual violence,
even if not allowed for other matters
• Evidence
– Do not allow information regarding extraneous
matters, such as past sexual history, sexual
reputation, etc.
– If forensic evidence is offered, have an impartial
trained forensic examiner available to interpret the
information

• Testimony
– Consider allowing complainant to testify outside of
the presence of respondent, but in a matter that
still allows respondent to hear complainant, such
as via telephone or behind a screen
• Cross-Examination
– OCR suggests no direct cross-examination
– Have parties submit questions to the hearing
officer/panel, which determines which questions to
ask (e.g., removing questions about past sexual
history, etc.)
• Check state law for any additional requirements

After the Hearing

• Findings/decision based only on the
evidence presented

• Remind both parties of the institution’s
prohibition on retaliation (direct or
indirect) and how to report any
suspected retaliation


After the Hearing, cont.

• If respondent is found to have violated the institution’s policy by
engaging in sexual violence, sanctions must be aimed at
eliminating the hostile environment, preventing its recurrence
and addressing its effects
– Impact on the complainant should be minimized
– Consider consulting with Title IX coordinator regarding
appropriate sanctions and to ensure consistency
– Consider how to address the effects of the harassing
behavior on complainant (see p. 16 of 2011 DCL for
suggestions from OCR)
– Consider whether broader actions, such as policy revisions
or campus-wide education, are appropriate



• Notify complainant and respondent in writing of the
outcome and the sanctions imposed
– Notification of sanctions is required under the Clery
Act and permitted under FERPA when the matter
involves sexual violence (more detail on this is
provided elsewhere in this curriculum)
– In cases that involve sexual harassment, but not
sexual violence, the complainant can only be
informed of those sanctions directly related to the
complainant, such as an instruction to the
respondent not to have any contact with complainant


• Appeals
– Not required by Title IX or Due Process
– If available, must be available to both parties
– Usual bases:
• Newly acquired evidence
• Prejudicial error
• Abuse of discretion (decision was arbitrary and
capricious)


Civil Case Examples

• Cases brought by complainants

• Cases brought by respondents

• Common pitfalls, themes and lessons
learned


Navigating the
Legislative Minefield

Steven J. Healy

Agenda

• Introduction
• Legislative Review
• The Intersections
• Avoiding the Minefields

177

Where are the Mines?

• Title IX is not the only Federal law that imposes
obligations re: sexual violence
• Clery Act directly imposes requirements for
response to SA
- There are also indirect implications
• FERPA may also impact your actions
• Campus SaVE Act on the horizon

178

Clery Act Basic
Requirements

• Policy disclosure – provide accurate statements of
current security policies and practices
• Records collection and retention – maintain
certain records and request records from local law
enforcement agencies
• Information dissemination – provide campus
community with information and disseminate that
information in several ways

179

Direct Implications

• Definitions of Sex Offenses (forcible & non-
forcible)
• Campus Sexual Assault Victims Bill of Rights:
- Sexual offense awareness programs
- Procedures following a report of a sexual assault

• Campus Sex Crimes Prevention Act (2000)

180

Definitions of Sex Offenses

• Uses the FBI’s National Incident-Based
Reporting System (NIBRS) edition of the UCR
handbook to define sexual offenses
• Implications for Title IX SA Investigations
- Institutional policy violations definitions may
differ significantly

181

Definitions of Sex Offenses

• Sex Offenses – Forcible
- Forcible Rape
- Forcible Sodomy
- Sexual Assault With An Object
- Forcible Fondling
• Sex Offenses – Non-forcible
- Incest
- Statutory Rape
• Remember – these are CRIME definitions
182

Sex Offense Policy &
Procedures
• Must have a statement in your ASR about the
institution’s sex offense policy, procedures and
programs.
- “A statement of policy regarding the institution’s
campus sexual assault programs to prevent sex
offenses, and procedures to follow when a sex
offense occurs.”
• Similar to the OCR Title IX DCL “Steps to Prevent
Sexual Harassment and Sexual Violence and
Correct its Discriminatory Effects on the
Complainant and Others” and “Remedies and
Enforcement”
183

Procedures

• The statement must include:
- Educational programs that promote awareness of:

 Rape
 Acquaintance rape
 Other forcible and non-forcible sex offenses
• You should interpret this to mean that you
SHOULD have such programs

184

Procedures
• When a sex offense occurs
- Who to contact
- Preserving evidence
- Whom to report alleged offense
• Option to notify law enforcement
- On-campus and local police
- Statement that institutional personnel will assist
students in notifying authorities

185

Procedures

• Notification of on/off campus services
- Counseling and other mental health centers
- Rape/Sexual assault crisis centers
- On campus advocacy centers
• Change academic & living situation
- Provide options
- Must provide, if reasonably available

186

Procedures
• Campus disciplinary procedures must provide
the accuser/accused:
- Right to have others present
(attorney, advisor, witnesses);
- Right to be advised of final results - disclosure to
accuser is UNCONDITIONAL;
- Sanctions that may be imposed
• Prompt and Equitable Requirements of OCR
Title IX DCL

187

CSCPA of 2000

• Simply required to inform
• Not required to disseminate
• Disclosure must be made in the
Annual Security Report

188

Indirect Implications

• Understanding Campus Security Authorities
- Campus police/security department
- Individuals responsible for security
- Access monitor
- Resident assistants
- Individual or offices designated to receive crime
reports
- Officials with significant responsibility for student
and campus activities

189


Campus Security Authority’s Responsibility:
“to report allegations made in good faith
to the reporting structure established
by the institution.”

• Significant Title IX implications

190

When is a Crime Considered
“Reported?”

“A crime is reported when it is brought to the
attention of a campus security authority or the
local police by a victim, witness, other third
party, or even the offender.”

• An institution must disclose crime reports
regardless of whether any of the individuals
involved in either the crime itself, or in the reporting
of the crime, are associated with the institution.

191

Timely Warning Notices

• An institution must alert the campus community of
certain crimes in a manner that is timely and will
aid in the prevention of similar crimes. These
include all Clery Act crimes that are:
- Reported to campus security authorities or local police
agencies; and,
- Considered by the institution to represent a serious or
continuing threat to students and employees.

192

Daily Crime Log

• Any institution that has a campus police
department or security office must
create, maintain and make available a daily
crime log.
- A crime is entered into the log when it is reported
to the campus police or security department.

193

Voluntary, Confidential
Reporting

• 2 Requirements:
- A list of titles of each person or organization to whom
students and employees should report criminal offenses
for the purpose of making timely warning reports and the
annual statistical disclosure.
 Statement must also disclose whether the
institution has any institutional policies or
procedures that allow victims or witnesses to report
crimes on a voluntary, confidential basis for
inclusion in the annual security report.


Reporting
• Don’t confuse voluntary, confidential reporting
with anonymous reporting…
- A confidential process allows one to come forth
without the institution disclosing his/her identity.
- A “Jane or Jim Doe” report
• Significant implications for Title IX SA
investigations
• May also impact whether or not the campus
public safety entity is able to participate in the
investigation
195

Reporting

• Significant implications for Title IX SA
investigations
- Title IX requires institutions to “take immediate action
to eliminate the harassment, prevent its recurrence,
and address its effects”

• May also impact whether or not the campus
public safety entity is able to participate in the
investigation

196

Reporting

• Describes procedures, if any, that encourage
pastoral counselors and professional
counselors, if and when they deem it
appropriate, to inform the persons they are
counseling of any procedures to report crimes
on a voluntary, confidential basis for inclusion
in the annual disclosure of crime statistics.

197


• ASR Current Policies Regarding Campus Law
Enforcement:
- The working relationship of campus security personnel
with state and local law enforcement
agencies, including whether the institution has
agreements with such agencies, such as written
memoranda of understanding, for the investigation of
alleged criminal offenses.
- Don’t have to include a copy of MOUs, simply state
whether they exist.

198


• Implications for Title IX SA Investigations
- Any agreement or Memorandum of Understanding
(MOU) with a local police department must allow the
school to meet its Title IX obligation to resolve
complaints promptly and equitably.

199

FERPA
Fundamentals
• Unless an exception applies, FERPA prohibits
nonconsensual disclosure of information from
education records which is personally
identifiable or easily traceable to an individual
student
- Education record means any information
recorded in any way and maintained by
institution
• Disclosure without consent may be made to
school officials with “legitimate educational
interest” in receiving information

200

Pertinent FERPA
• Law enforcement unit records:
Exceptions
- Records created by security department/campus police
department that were created for a law enforcement
purpose
- Only applies if in the hands of campus security/campus
police

• Health or safety emergency:
- Institution may disclose records without consent to
appropriate parties (including parents) in connection with
an emergency if knowledge of the information is
necessary to protect the health or safety of the student or
other individuals
201

UNC Title IX Training Seminar, FEB 2013

UNC Title IX Training Seminar, FEB 2013

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