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HIGHER EDUCATION ANNUAL CLERY TRAINING AND INTRODUCTION TO TITLE IX BASICS

A Disclaimer

We can't help ourselves. We're lawyers.

We are not giving you legal advice. Consult with your legal counsel regarding how best to address a specific situation.

This training satisfies both annual Clery training and Title IX regulations training.*

Use the chat function to ask general questions and hypotheticals, or raise your hand—this is a meeting setting so we can discuss issues.

This training is not being recorded, but we will provide you with a packet of the training to post on your websites for Title IX compliance.

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Presentation Rules

Questions are encouraged

“For the sake of argument…” questions help to challenge the group, consider other perspectives, and move the conversation forward

Be aware of your own responses and experiences

Follow-up with someone if you have any questions or concerns

Take breaks as needed

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Aspirational Agenda

Level 1: Clery Training, Title IX Training on “Education Program or Activity,” Sexual Harassment Definitions, and Avoiding Sex Stereotypes

9:00-9:10 Introduction: Overview of training requirements

9:10-9:20 Ethic of Care and Themes of Title IX

9:20-10:00 Sexual Violence Data and Statistics

10:00-10:15 Break (Q&A with presenters available during break)

10:15-12:00 Law & Regulation: Overview of law, existing guidance, and the new Title IX Regulations with focus on “educational program or activities”

12:00-12:30 Lunch Break

12:30-2:00 Sexual Harassment under Title IX, employees, mandatory and discretionary definitions

2:00-2:45 Panel Discussion (and break)

2:45-5:00 Continue Sexual Harassment: Mandatory and Discretionary/Avoiding Sex and Cultural Stereotypes

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Posting these Training Materials

Yes!

The “recipient” is required by §106.45(b)(10)(i)(D) to post materials used to train Title IX personnel on its website

We know this and will make this packet available to you electronically to post.

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Training Requirements

“A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training of sexual harassment in §106.30, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution process, as applicable, and how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias.” §106.45(b)(1)(iii)

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Training Requirements

Under Clery Act, must receive annual training on:

Issues related to sexual assault, domestic violence, dating violence, stalking

How to conduct an investigation and hearing process that protects the safety of victims and promotes accountability

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Training Requirements

Additional specific training requirements may apply to each of these categories. All require training on the definition of “sexual harassment” under the Regulations.

Today's training covers:

“educational program or activity,”

the definitions under $106.30 for “sexual harassment,”

annual Clery training, and

avoiding cultural and sex stereotypes.

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Training Requirements

Today will also cover an overview of the process that will have more specialized coverage in relevant Level 2 courses

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TITLE IX TODAY: Themes

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Title IX is an Equity Statute

EQUALITY

EQUITY

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Ethic of Care

What do you think are the top values of your institution's community?

Do you think institutional values align between administration, faculty and staff?

What about students?

What about the town or city around your institution?

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Overview of Themes

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Themes

It is meant to ensure ACCESS to your programs and activities, regardless of sex.

“What we do for one, we do for the other” (or at least consider whether it is appropriate under the circumstances) • Why are you treating someone differently?

Why are you treating someone differently?

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Themes

We have an obligation to PROTECT our campus. ○ “ They are all our students.”

Supportive measures

Any action by a recipient that results in changes or removal of access to education for respondents require a process to respond (if interim emergency measure) or engage in live cross-examination (if formal process that could lead to disciplinary action).

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Themes

TRANSPARENCY is key to trusting the process.

Know your grievance process

Help them understand next steps.

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Themes

We base decisions on EVIDENCE.

○ “Don’t weigh your gut.” ○ We can make reasonable inferences and credibility determinations, but be mindful of implicit bias, stereotypes, and using our own behavior as a yardstick.

We can make reasonable inferences and credibility determinations, but be mindful of implicit bias, stereotypes, and using our own behavior as a yardstick.

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Themes

Always be working to IMPROVE:

Yourself as a neutral

Your campus as a healthy and fair place to be Your policy to provide a better process informed by case law, regulations, guidance, and experience Your resources for all involved

Your policy to provide a better process informed by case law, regulations, guidance, and experience

Your resources for all involved

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SEXUAL VIOLENCE: Data and statistics

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Data and Statistics

• More Disclaimers

Should not influence your decision in any particular Title IX case

Included in the Preamble, but with caveats

We didn't do the research ourselves and can't vouch for it

Okay but really, this SHOULD NOT influence your decision in any particular Title IX case

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Data and Statistics

Caveats:

o “The Department references statistics, data, research, and studies throughout this preamble. Such references to or summarization of these items does not indicate that the Department independently has determined that the entirety of each item is accurate.” Preamble, p. 30031 (Official).

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Data and Statistics

More Caveats:

o “Statistical findings can be instructive but not dispositive, and statistics cannot by themselves justify or rationalize procedural protections in a process designed to determine the truth of particular allegations involving specific individuals.” Preamble, p. 30262 (Official)

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Sexual Assault Data

43.6% of women and 24.8% of men experienced some form of contact sexual violence in their lifetime, with 4.7% and 3.5% experiencing such violence in the 12 months preceding the survey.

Statistics from the National Intimate Partner and Sexual Violence Survey (NISVS), Centers for Disease Control and Prevention, 2015 Data Brief, available online at https://www.cdc.gov/violenceprevention/datasources/nisvs/2015NISVSdatabrief.html (last visited June 2020).

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Sexual Assault Data

1 All percentages are weighted to the U.S. population.

2 Contact sexual violence includes rape, being made to penetrate someone else, sexual coercion, and/or unwanted sexual contact.

Statistics from the National Intimate Partner and Sexual Violence Survey (NISVS), Centers for Disease Control and Prevention, 2015 Data Brief, available online at https://www.cdc.gov/violenceprevention/datasources/nisvs/2015NISVSdatabrief.html

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Sexual Assault Data

Figure 2 Lifetime Prevalence of Sexual Violence Victimization—U.S. Men, NISVS 20151,2

1 All percentages are weighted to the U.S. population.2 Contact sexual violence includes rape, being made to penetrate someone else, sexual coercion, and/or unwanted sexual contact.

Statistics from the National Intimate Partner and Sexual Violence Survey (NISVS), Centers for Disease Control and Prevention, 2015 Data Brief, available online at https://www.cdc.gov/violenceprevention/datasources/nisvs/2015NISVSdatabrief.html

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Sexual Assault Data: Bricker & Eckler ATTORNEYS AT LAW Prevalence Data for Postsecondary Institutions

More than 50 percent of college sexual assaults occur in August, September, October, or November, and students are at an increased risk during the first few months of their first and second semesters in college.

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Additional Data referenced in the Preamble for:

Postsecondary Institutions, p. 30076 (Official)

Women, p. 30077 (Official)

Men, p. 30077 (Official)

LGBTQ Persons, p. 30077 (Official)

Persons of Color, p. 30078 (Official)

Individuals with Disabilities, p. 30079 (Official)

Immigrants, p. 30079 (Official)

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Sexual Assault Data: Identity of Perpetrator (BJS 2014)

Preamble, p. 300767(Official) notes that “Commenters cited: U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics Special Report: Rape and Sexual Assault Victimization of College Age Females, 1995-2013 (2014).

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Sexual Assault Data: Alcohol/Drug Use

“About half of sexual assaults involve survivors drinking alcohol before the assault.”

“Survivors impaired by alcohol are more likely to disclose to informal, but not formal support sources than are non-impaired victims.”

Lorenz, Katherine, and Sarah E Ullman. “Exploring Correlates of Alcohol-Specific Social Reactions in Alcohol-Involved Sexual Assaults.” Journal of aggression, maltreatment & trauma vol. 25, 10 (2016): 1058-1078. doi:10.1080/10926771.2016.1219801.

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Data and Statistics: Reporting Data

About 65 percent of surveyed rape victims reported the incident to a friend, a family member, or roommate but only ten percent reported to police or campus officials.

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Data and Statistics: Impact Data

Approximately 70 percent of rape or sexual assault victims experience moderate to severe distress, a larger percentage than for any other violent crime.

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Data and Statistics: Impact Data

81% percent of women and 35% percent of men report significant short- or long-term impacts of sexual assault, such as post-traumatic stress disorder (PTSD).

Preamble, p. 30080 (Official) notes that “Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS); 2010 Summary Report (Nov. 2011).

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Sexual Harassment Data

	Female gender	Male gender
Sexual harassment	62%	61%
Sexual comments	57%	48%
Grabbed	28%	22%
Called homophobic name	13%	37%
Cornered sexually	13%	10%
Forced to kiss	7%	8%
Sexual postings	6%	12%

Preamble, p. 30076 (Official) notes that “Commenters cited: American Association of University Women Educational Foundation, Drawing the Line: Sexual Harassment on Campus (2005).”

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Sexual harassment has a statistically significant heavier toll on female students

Figure 7. Reactions to Sexual Harassment Experiences (By Gender)

Preamble, p. 30076 (Official) notes that “Commenters cited: American Association of University Women Educational Foundation, Drawing the Line: Sexual Harassment on Campus (2005).”

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Sexual Harassment Data

LGBT students are more likely to be sexually harassed and have negative emotional and behavioral responses to harassment.

73% of the LGBT students report harassment (versus 62% of heterosexual students).

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Sexual Harassment Data

LGBT students are more likely to be harassed “often” – 18% versus 7% of heterosexual students.

LGBT students are more likely than heterosexual students to be angry (76% versus 42%)

LGBT students are more likely than heterosexual students to be embarrassed (61% versus 49%)

LGBT students are more likely than heterosexual students to be less confident (42% versus 25%)

LGBT students are more likely than heterosexual students to be afraid (32% versus 20%)

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The most common rationale for harassment (59%) is “I thought it was funny.”

Source: Drawing the Line: Sexual Harassment on Campus (AAUW Educational Foundation, 2005). Base = Those who say they ever harassed someone (n=776); 451 male and 325 female college students ages 18 to 24.

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Less than one-fifth (17%) admitted to harassing others because they wanted a date with the person

Source: Drawing the Line: Sexual Harassment on Campus (AAUW Educational Foundation, 2005).

Base = Those who say they ever harassed someone (n=776); 451 male and 325 female college students ages 18 to 24.

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Many students do not report to anyone that they have been harassed

A school employee, such as a professor or

Source: Drawing the Line: Sexual Harassment on Campus (AAUW Educational Foundation, 2005). Base = Respondents who experienced harassment (n=1,225); 659 female and 566 male college students ages 18 to 24.

☐ Male

Why are males less likely to report?

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Data and Statistics: Reporting Data

Research shows that students are deterred from reporting sexual harassment and assault for the following reasons:

Policies that compromise or restrict the victim's ability to make informed choices about how to proceed; A desire to avoid public disclosure

A desire to avoid public disclosure

Concerns about confidentiality

Uncertainty as to whether they can prove the sexual violence or whether the perpetrator will be punished Campus policies on drug and alcohol use Policies requiring victims to participate in adjudication

Campus policies on drug and alcohol use

Policies requiring victims to participate in adjudication

Trauma response

The desire to avoid the perceived or real stigma of having been victimized

Preamble, p. 30082 (Official) notes that “Commenters cited: U.S. Dep’t of Justice, Office of Justice Programs, National Institute of Justice, Sexual Assault on Campus: What Colleges and Universities are Doing About It (2005).” 41

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Stalking Data

4.5 million women and 2.1 million men are stalked in one year in the United States.

Over 85% of stalking victims are stalked by someone they know.

61% of female victims and 44% of male victims of stalking are stalked by a current or former intimate partner.

First statistic: National Intimate Partner and Sexual Violence Survey: 2015 Data Brief (CDC)

Second and third statistics: National Intimate Partner and Sexual Violence Survey: 2010-2012 State Report (CDC)

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Stalking Data

11% of stalking victims have been stalked for 5 years or more.

46% of stalking victims experience at least one unwanted contact per week.

[Matthew J. Breiding et al., “Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization – National Intimate Partner and Sexual Violence Survey, United States, 2011”, (referenced in Preamble, p. 30079 fn 366 (Official))

Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report, Vol. 63, No. 8 (2014): 7 (referenced in Preamble, p. 30079 fn 366 (Official))

[Katrina Baum et al., (2009). "Stalking Victimization in the United States," (Washington, DC:BJS, 2009).]

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Impact of Stalking on Victims

46% of stalking victims fear not knowing what will happen next.

[Baum et al., (2009). "Stalking Victimization in the United States." BJS.]

29% of stalking victims fear the stalking will never stop.

[Baum et al.]

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Impact of Stalking on Victims

1 in 8 employed stalking victims lose time from work as a result of their victimization and more than half lose 5 days of work or more.

1 in 7 stalking victims move as a result of their victimization.

[Baum et al.]

The prevalence of anxiety, insomnia, social dysfunction, and severe depression is much higher among stalking victims.

[Eric Blauuw et al. "The Toll of Stalking," Journal of Interpersonal Violence 17, no. 1(2002):50-63.]

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LAW AND REGULATION

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Terminology

“Complainant” – “an individual who is alleged to be the victim of conduct that could constitute sexual harassment.” §106.30

o Not just students (employees, guests, visitors)

“Respondent” – “an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.” §106.30

○ Not just students (employees, guests, visitors)

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Terminology

“Recipient” – “means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives such assistance, including any subunit, successor, assignee, or transferee thereof. “§106.2

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Terminology

“Post-secondary institution”- “an institution of graduate higher education as defined in §106.2(l), and institution of undergraduate higher education as defined in §106.2(m), an institution of professional education as defined in §106.2(n), or an institution of vocational education as defined in §106.2(o).” §106.30(b)

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What applies?

Law – 20 U.S.C. 1681 et seq.

Regulations – 34 C.F.R. Part 106

Athletics, employment, admissions, housing, etc.

Clery – 20 U.S.C. 1092(f); 34 C.F.R. 668.46; Clery Handbook

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What applies?

To the extent they do not conflict with the Regulations:

2001 Guidance

2015 – DCL on obligations of TIX Coordinators

2015 – DCL on VAWA Final Regulations

2017 – DCL and Q&A – reaffirming 2001 Guidance

Rolled into or addressed in Regulations.

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What applies?

Case Law

Supreme Court, federal courts

State courts

Look to other court decisions for persuasive authority

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And of course...

The New Title IX Regulations!!

(and Title VII and your student conduct code, as discussed more throughout)

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New Regulations

“Non-negotiable principles” include the right of every survivor to be taken seriously and the right of every person accused to know that guilt is not predetermined. (30059 and throughout)

Training requirements

Different definitions

Different processes

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Overview of the Process

Not every employee has to be a mandatory reporter in the postsecondary institution

This is so complainants can talk to employees without having to initiate the Title IX process

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Overview of the Process

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Overview of the Process: Actual Knowledge

Notice of sexual harassment or allegations of sexual harassment to a recipient's Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient (discretion of the postsecondary institution)

Notice to employees is no longer enough to trigger actual knowledge (ability or obligation to report not enough)

Purpose to allow complainants to speak with employees without automatically triggering process

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Overview of the Process: Formal Complaint

A document filed by a complainant or signed by the Tile IX Coordinator alleging sexual harassment against a respondent and requesting the recipient investigate the allegation of sexual harassment

In response to a formal complaint, a recipient must follow a grievance process (set by 106.45)

Title IX Coordinator must offer complainant supportive measures (regardless if files formal complaint – if complainant does not want to file a formal complaint)

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Overview of the Process: Formal Grievance Process

Any provisions, rules, or practices, other than those in the regulations, must apply equally to both parties.

Basic requirements:

Treat complainants and respondents equitably

Follow grievance process

Only impose any disciplinary sanctions against a respondent after grievance process followed

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Overview of the Process: Formal Grievance Process

Requires an objective evaluation of all relevant evidence (inculpatory and exculpatory)

Provide credibility determinations not based upon person's status as complainant, respondent, or witness

Require individual designated by recipient as Title IX Coordinator, investigator, decision-maker, informal resolution officer, and/or appeals officer be free from conflict of interest or bias

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Overview of the Process: Formal Grievance Process

Include presumption that respondent is not responsible for the alleged conduct until a determination regarding responsibility is made through the grievance process

Include prompt time frames (some discretion)

Describes range of possible disciplinary outcomes

States standard of evidence (preponderance of the evidence or clear and convincing)

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Overview of the Process: Formal Grievance Process

Include procedures and bases for complainant and respondent to appeal

Describe range of supportive measures available to complainants and respondents

Not require legally privileged evidence absent a voluntary written waiver by the holder of the privilege

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Overview of the Process: Written Notice

Recipient's grievance process and informal resolution process

Allegations with sufficient time for review with sufficient detail, such as date, location if known

Respondent presumed not responsible for alleged conduct and determination made at conclusion of grievance process

Parties may have an advisor of choice

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Overview of the Process: Written Notice

Any provision in recipient's code of conduct that prohibits knowingly making false statements or providing false information during the grievance process

Additional notification to parties if new allegations arise as apart of the investigation

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Overview of the Process: Dismissal

Recipient MUST investigate allegations in a formal complaint

BUT recipient MUST dismiss

if conduct alleged would not constitute sexual harassment, even if proven, OR

Conduct did not occur within recipient's education program or activity or in the United States

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Overview of the Process: Investigation

Only of a formal complaint

Burden of proof and evidence gathering rests with recipient

Cannot access, require, disclose, or consider treatment records of a party without that party's voluntary, written consent

Provide equal opportunity for parties to present witnesses (fact and expert)

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Overview of the Process: Investigation

Provide equal opportunity for parties to present inculpatory and exculpatory evidence

Not restrict ability of either party to discuss or gather and present relevant evidence

Provide parties same opportunities to have others present during the grievance process, including advisor of choice

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Overview of the Process: Investigation

Provide written notice of date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with sufficient time to prepare

Provide both parties equal opportunity to inspect and review any evidence obtained in the investigation – recipient must send to party and party's advisor with at least 10 days to submit a written response before completion of investigation report

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Overview of the Process: Investigation

Recipient must make all such evidence subject to inspection and review at any hearing

Create an investigation report at least 10 days before a hearing that fairly summarizes the relevant evidence and send to each party and party's advisor

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Overview of the Process: Hearings

Must provide a live, cross-examination hearing

Parties must have an advisor and the recipient must provide an advisor for a party if the party does not have one

Advisors ask only relevant cross-examination questions—no party-on-party questioning

May be virtual, but must be recorded or transcribed

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Overview of the Process: Determinations

Decision-maker (not Title IX Coordinator or investigator) must issue a written determination regarding responsibility

Must include

Allegations

Procedural steps taken from receipt of formal complaint

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Overview of the Process: Determinations

Findings of fact

Conclusions

Statement of and rationale for each result of each allegation, including determination of responsibility and any disciplinary imposition and whether remedies designed to restore or preserve access to educational program or activity will be provided to complainant

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Overview of the Process: Determinations

• Procedures and bases for appeal by both parties

Provide written determination to parties simultaneously

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Overview of the Process: Appeals

Recipient must offer to both parties the following bases of appeal:

Procedural irregularity that affected outcome

New evidence not reasonably available at the time regarding responsibility or dismissal that could affect outcome

Conflict of interest or bias by the Title IX Coordinator, investigator, and/or decision-maker that affected the outcome

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Overview of the Process: Appeals

The decision-maker for the appeal cannot be the same decision-maker from the hearing, or the Title IX Coordinator or investigator

Must provide both parties a reasonable, equal opportunity to submit a written statement in support of or challenging the determination

Must issue a written decision describing the result of the appeal and rationale and provide the decision simultaneously to the parties

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Overview of the Process: Informal Resolution

At any time prior to the determination regarding responsibility, the recipient may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication

Recipient cannot require this and also cannot offer unless a formal complaint is filed

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Overview of the Process: Informal Resolution

Recipient can offer informal resolution if:

○ Provides written notice to the parties

Obtains the parties' voluntary, written consent to the informal process

○ Does not offer for employee sexual harassment of a student

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Overview of the Process: Retaliation

Neither recipient nor any other person may retaliate against an individual for purpose of interfering with any right or privilege secured by Title IX or because made a report or complaint, or participated or refused to participate in the process

(Further discussion in codes of conduct discussion at lunch)

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Overview of the Process: Confidentiality

Recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who made a report, any complainant, any alleged perpetrator, any respondent, and any witness, unless required by law, permitted by FERPA, or for the purposes of carrying out Regulations grievance process.

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Jurisdictional Changes

No obligation to address off-campus conduct that does not involve a program or activity of school BUT

“Schools are responsible for redressing a hostile environment that occurs on campus even if it relates to off-campus activities.”

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Jurisdiction

A recipient with actual knowledge of sexual harassment in an educational program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent.

A recipient is only deliberately indifferent if its response to sexual harassment is unreasonable in light of known circumstances.

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Jurisdiction

“Education program or activity”

“includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. “106.30(a)

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Education Program or Activity

Locations, events, or circumstances with substantial control – the easy ones:

Residence halls

Classrooms

Dining halls

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Off Campus?

Any of the three conditions must apply to extend Title IX jurisdiction off campus:

Incident occurs as part of the recipient's “operations” (meaning as a “recipient” as defined in the Title IX statute or the Regs 106.2(h));

If the recipient exercised substantial control over the respondent and the context of alleged sexual harassment that occurred off campus; and

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Off Campus?

(3) Incident occurred in an off-campus building owned or controlled by a student organization officially recognized by a post secondary institution

Discussion specifically addresses off campus sorority and fraternity housing and, as long as owned by or under control of organization that is recognized by the postsecondary institution, it falls within Title IX jurisdiction

Must investigate in these locations (30196-97)

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Not an Education Program or Activity

Locations, events, or circumstances with out substantial control:

Anything outside of the United States;

Privately-owned off campus apartments and residences that do not otherwise fall under the control of the postsecondary institution (example: privately owned apartment complex not run by a student organization)

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Education Program or Activity

Depends on fact-analysis under “substantial control”:

Conventions in the United States

Holiday party for an academic department

Professor has students over to house

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Jurisdiction and Mandatory Dismissal

Dismissal of a formal complaint— $106.45(b)(3)(i)

The recipient must investigate the allegations in a formal complaint.

(BUT) If the conduct alleged in the formal complaint would not constitute sexual harassment as defined in §106.30 even if proved, did not occur in the recipient's education program or activity, ...

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Jurisdiction and Mandatory Dismissal

or did not occur against a person in the United States, ....

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Jurisdiction and Mandatory Dismissal

then the recipient must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX or this part; such a dismissal does not preclude action under another provision of the recipient's code of conduct.

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Study Abroad Programs

Draws a bright line-not outside of the United States: plain text of Title IX “no person in the United States,” means no extraterritorial application. Must dismiss. (30205-06)

Programs of college based in other countries? No jurisdiction and must dismiss.

Foreign nationals in the United States covered.

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Online Study

“Operations” of the recipient may include computer and online programs and platforms “owned and operated by, or used in the operation of, the recipient.” (30202)

Still has to occur in educational program or activity

And in United States...

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Jurisdictional Hypotheticals

“In an educational program or activity”?

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Jurisdictional Hypotheticals Disclaimer

Disclaimer: The following hypotheticals are not based on any actual cases we have handled or of which we are aware. Any similarities to actual cases are coincidental.

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Hypothetical 1

Sarah, a student, informs the Title IX Coordinator or designee that she was sexually assaulted at a party over the weekend, by another student she knows, James. Sarah states that the party and assault occurred at Terrance Manor apartments. Sarah believes this is part of campus. Terrance Manor apartments is a complex directly behind the university and sits in between two university-owned senior apartment complexes, but Terrance Manor is owned by a private landlord.

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Hypothetical 2

Jessi, a student, informs the Title IX Coordinator or designee that a stranger sexually assaulted him at a fraternity party over the weekend. The fraternity house is affiliated with the university, but the university does not own the house and the house is located off-campus.

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Hypothetical 3

The university has partnered with the city for an improvement district along the main street that runs through campus. The improvement district removes and rebuilds buildings on the street, oversees the cleanliness of the sidewalks, and has a task force that patrols the area on bicycles to deter crime. Alex, a student, informs the Title IX Coordinator or designee that a stranger sexually assaulted her on the main street in front of campus over the weekend.

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Hypothetical 4

Enrique, a student, calls the Title IX Coordinator or designee frantically from Italy, where he is enrolled in the university's "Italy Program," in which professors and students from the university hold courses at a sister university in Italy. Enrique states that one of the university's professor's told Enrique that he could only get an A in the course if he slept with the professor.

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Sexual Harassment

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Sexual Harassment

Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:

[Quid pro quo] An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;

[Hostile environment] Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity; or

○ [Clery crimes] Sexual assault, dating violence, domestic violence, or stalking

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Sexual Harassment: Quid Pro Quo

Only applies to employee to student

DOE interprets this broadly to encompass implied quid pro quo

No intent or severe or pervasive requirements, but must be unwelcome

"[A]buse of authority is the form of even a single instance...is inherently offensive and serious enough to jeopardize educational access."

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Sexual Harassment: Davis/Gebser

The second prong: severe, persistent, and objectively offensive and deny equal access (which is not the same as under Title VII)

Does not require intent

Reasonable person standard – means a reasonable person in the shoes of the complainant (30159)

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Severe

Takes into account the circumstances facing a particular complainant

Examples: age, disability status, sex, and other characteristics

Preamble discussion states that this removes the burden on a complainant to prove severity (30165)

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Pervasive

Preamble indicates pervasive must be more than once if it does not fall into the above (30165-66)

Preamble reminds us that quid pro quo and Clery/VAWA (domestic violence, dating violence, stalking) terms do not require pervasiveness

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Objectively Offensive

Reasonable person is very fact-specific (30167)

Because so fact-specific, different people could reach different outcomes on similar conduct, but it would not be unreasonable to have these different outcomes

Preamble notes that nothing in the Regulations prevents institutions from implicit bias training

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Sexual Harassment Considerations

The preamble notes that the Regulations do not prohibit postsecondary institutions from:

Publishing a list of situations that would violate Title IX as “sexual harassment”

Advising when similar conduct has been found to violate Title IX

Publishing a list of situations that would violate code of conduct (30158)

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Applies to Employees

This was unsettled in most Circuits

Enter Title VII

Commentary notes that “severe or pervasive” definition (Title VII) shouldn’t apply because elementary, secondary, and postsecondary schools are unlike the adult workplace. (Pages 43-44)

Davis – 5th grade students

Instead - "severe, pervasive, and objectively offensive"

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Applies to Employees

Near the beginning of the preamble, the Department noted:

“The Department does not wish to apply the same definition of actionable sexual harassment under Title VII to Title IX because such an application would equate workplaces with educational environments, whereas both the Supreme Court and Congress have noted the unique differences of educational environments from workplaces and the importance of respecting the unique nature and purpose of educational environments.” (30037 of preamble).

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Applies to Employees

But towards the end of the preamble, the Department clarified:

“The Department appreciates support for its final regulations, which apply to employees.” (30439)

No “inherent conflict” between Title VII and Title IX (30439)

Due Process protections found in § 106.45 (live hearing, advisors, cross-examination) apply to employees, not just students (30440)

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Applies to Employees

The preamble clarified:

Recipients that are subject to both Title VII and Title IX must comply with both (30440)

“Deliberate Indifference” standard “most appropriate” for both Title VII and Title IX (30440)

Because Title IX recipients are “in the business of education” “Marketplace of ideas” makes postsecondary institutions special

“Marketplace of ideas” makes postsecondary institutions special

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Applies to Employees

Conflicts between Title VII and Title IX noted by Commenters:

Formal complaint requirement

Notice requirement

Deliberate Indifference Standard (noted above)

Definition of Sexual Harassment

Live hearing (as opposed to notice and opportunity to respond)

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△! Disclaimer △!

This section uses the terms "rape," "victim," and "perpetrator" -- CRIMINAL, not POLICY, from FBI Criminal Definitions (what Clery and VAWA refer to for their definitions)

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Mandatory: Sexual Assault, Dating Violence, Domestic Violence, & Stalking

Third prong refers to certain statutory definitions for sexual assault, dating violence, domestic violence and stalking

Sexual assault is defined as forcible and non-forcible sex offenses as defined in the FBI's Uniform Crime Reporting (UCR) database, which you can find in the National Incident-Based Reporting System (NIBRS) manual

Dating violence, domestic violence, and stalking definitions are from Clery statute (not regulations) as amended by VAWA

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Sexual Harassment: Sexual Assault

“Sexual Assault” includes:

Rape

Sodomy

Sexual Assault with an Object

Fondling

Incest

Statutory Rape

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Sexual Assault: Rape

“Rape” means the carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. Carnal knowledge is defined as the slightest penetration of the sexual organ of the female (vagina) by the sexual organ of the male (penis).

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Sexual Assault: Sodomy

“Sodomy” means oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

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Sexual Assault: With an Object

“Sexual Assault with an Object” means use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. An object or instrument is anything used by the offender other than the offender’s genitalia, e.g., a finger, bottle, handgun, stick.

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Sexual Assault: Fondling

“Fondling” means the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

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Sexual Assault: Incest

“Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

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Sexual Assault: Statutory Rape

"Statutory Rape" means sexual intercourse with a person who is under the statutory age of consent.

In Ohio:

Under 13 → can't consent

Under 16 → can't consent to those older than 18

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Sexual Harassment: Dating Violence

“Dating Violence” means an act of violence committed by a person who is or has been in a romantic or intimate relationship with the complainant. The existence of such a romantic or intimate relationship is determined by the length of the relationship, the type of relationship, and the frequency of interactions between the individuals involved in the relationship.

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Sexual Harassment: Domestic Violence

"Domestic violence" is an act of violence committed by:

A current or former spouse or intimate partner of the complainant;

A person with whom the complainant shares a child in common;

A person who is cohabitating with, or has cohabitated with, the complainant as a spouse or intimate partner;

A person similarly situated to a spouse of the victim under the domestic/family violence laws of the jurisdiction;

Any other person against an adult or youth victim who is protected from that person's acts under the domestic/family violence laws of the jurisdiction

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Sexual Harassment: Stalking

“Stalking” is engaging in a course of conduct directed at a specific person that would cause a reasonable person with similar characteristics under similar circumstances to:

Fear for the person's safety or the safety of others; or

Suffer substantial emotional distress.

As mentioned before, to qualify under Title IX, it must be sex-based stalking. (30172 fn. 772)

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Stalking: On the basis of sex

The preamble distinguishes between stalking and stalking on the basis of sex (only the latter of which falls under Title IX):

Recognition that stalking does not always relate to sex and therefore do not always fall under Title IX (ex. celebrity stalking)

See footnote 772 on 30172–“Stalking that does not constitute sexual harassment because it is not ‘on the basis of sex’ may be prohibited and addressed under a recipient’s non-Title IX codes of conduct”

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Stalking: Course of Conduct

"Course of Conduct"

Under VAWA regulations: means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person's property.

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Stalking: Reasonable Person

“Reasonable person”

Under VAWA regulations: means a reasonable person under similar circumstances and with similar identities to the victim.

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Stalking: Substantial Emotional Distress

“Substantial emotional distress”

Under VAWA regulations: means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

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CONSIDERATIONS FOR CODES OF CONDUCT Panel Discussion

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Codes of Conduct

Discretion to address what falls outside of Title IX in Student or Employee or Faculty Codes of Conduct

“Nothing in the final regulations precludes a recipient from applying the 106.45 grievance process to address sexual assaults that the recipient is not required to address under Title IX.” (30065 and similar throughout preamble)

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Codes of Conduct Considerations

Also be aware of retaliation pursuant § 106.71 (definition of retaliation):

“Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation.”

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Jurisdiction and Code of Conduct Considerations

Practical effects of pursuing a complaint under the conduct code

Example: Will students face a drastically different process based on the location of the alleged incident?

What will this look like?

How will the community respond?

Should the student conduct process change to meet the Title IX process?

What about hybrid cases? (30198)

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Sexual Harassment Hypotheticals

Is this “sexual harassment” under Title IX?

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Sexual Harassment Hypotheticals Disclaimer

Disclaimer: The following hypotheticals are not based on any actual cases we have handled or of which we are aware. Any similarities to actual cases are coincidental.

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Hypothetical 1

Complainant tells the Title IX Coordinator that Respondent, a fellow student in Complainant’s art history class, referred to women in a painting as “fat women” in his answer about the painting. Complainant stated that this was devastating to her because she considers herself overweight and interpreted this as an attack on her and other overweight women in the class.

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Hypothetical 2

Complainant tells the Title IX Coordinator that her boyfriend hit her in the face and wants to file a complaint against him. Complainant states that he hit her six months ago, but they just broke up and she felt she should report it.

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Hypothetical 3

An anonymous letter to the Title IX Coordinator states that a video is circulating among students of Respondent, a student, having sex with Complainant, another student, who appears to be unresponsive.

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Hypothetical 4

Complainant, a student, alleges that his boyfriend, another student, secretly took a video of them engaged in sexual intercourse. Complainant stated that he just found out about the video when a friend informed him about it.

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Hypothetical 5

Complainant, an employee, tells the Title IX Coordinator that Respondent, an unknown person on campus who may be a student, has been following Complainant around campus. Whoever it is has key card access to buildings. Complainant states that she often catches Respondent staring at her. Complainant states she is scared because she is often alone at night on campus.

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COMBINING MANDATORY REGULATION LANGUAGE With discretionary policy language

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Discretionary: Consent, Coercion, Incapacitation, Exploitation

Discretion is left to the institution on consent, coercion, and incapacitation, which, as we will discuss, allows institutional discretion on the extent of these violations, especially under “sexual assault”

Exploitation/revenge porn: may be pervasive unwelcome conduct depending on widespread dissemination (30166)

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Consent: Left to the Institutions to Define

DOE left “consent” and terms that often negate consent to the discretion of the recipients to “reflect the unique values of a recipient’s educational community.” (30159, see also 30174)

No required definition in law, regs, or guidance

Policy language is going to be critical to your analysis

We will use standard language for discussion purposes

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Who Can NEVER Give Consent?

Those who are unable to consent by law (ex. minors, incarcerated persons)

Severely cognitively disabled persons

Those who are incapacitated

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Consent

Some policies require:

Clear - verbal (or non-verbal?) communication

Knowing - Mutually understood as willingness to participate in a sexual activity and the conditions of that sexual activity

Voluntary - Freely and actively given

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Consent

• Some policies include:

May be withdrawn with clear communication

Consent for one activity is not consent for everything

Silence or failure to resist does not constitute consent

Previous consent does not constitute consent for future activities

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When Does Consent NOT Exist?

Use of physical force or threats of physical force,

Many policies also include physically intimidating behavior or coercion

Individual from whom consent is required is incapacitated

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Evidence of Consent?

What words or actions did complainant use to convey consent/non-consent?

Must examine sexual contacts, acts in detail

Was complainant capable of consenting? (Asleep? Passed out? Not understanding what was happening?)

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Evidence of Consent?

Who took off what clothes?

Who provided the condom?

Who initiated physical contact?

Who touched who where?

"They gave consent" = What did you say to them, and what did they say to you?

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Not Evidence of Consent?

Some institutions include evidence that they do not consider evidence of consent:

What a complainant was wearing

Whether complainant had given prior consent in other sexual activities

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Coercion: Left to Institution to Define

Is this in your policy?

Does your TIX team, your preventive education team, and your local rape crisis center agree on a definition when working with your community?

Often defined as unreasonable pressure for sexual activity

Compare: “I will break up with you” versus “I will kill myself”

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Incapacitation: Left to Institution to Define

State of being unconscious, asleep, or under the influence of drugs and/or alcohol to such an extent that the person cannot appreciate the nature or consequences of their actions

Intoxicated people can consent. Incapacitated people cannot consent.

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Incapacitation: Amnesty?

Nothing in the Regulations precludes the postsecondary institution from providing amnesty to students for personal alcohol and/or drug use when participating in a Title IX investigation

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Incapacitation

Determined by how the alcohol (or drugs) consumed impacts a person's decision-making capacity, awareness of consequences, and ability to make informed judgments

Beyond mere intoxication

No requirement for incapacitation to be voluntary or involuntary on the part of the complainant

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Incapacitation

To be responsible where a complainant is incapacitated, policies typically require that the respondent knew or reasonably should have known about the incapacitation

Incapacitation of the respondent is not a defense

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Productive Questioning on Gauging Intoxication

Difficult to gauge:

How trashed were you?

On a scale of 1-10, how drunk were you?

Why did you get that drunk?

Preferable approach:

Explain why you need the information

Don't place blame

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Any Drugs?

Did they take any medications that might have interacted with alcohol or otherwise affected their level of intoxication?

Did they take any drugs that may have altered their ability to stay awake, understand what was happening, etc.?

What, how much, and when?

Remember: can have amnesty in your policy for personal drug and alcohol use (also a good way to avoid institutional retaliation!) at 30536

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Physical Effects

Some policies list physical effects that are not solely indicative of, but may indicate incapacitation:

Conscious or unconscious?

Vomiting?

Slurred speech

Difficulty walking

Difficulty holding a coherent conversation

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Blackout ≠ Incapacitation

Alcohol can interfere with the ability to form memories

May be a complete lack of memory or fragmentary blackouts

Listen carefully to the way they describe what they remember. Does it fit with what you know about intoxication and recall?

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Myths and Stereotypes

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Most rapes are committed by perpetrators that know their victims

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Rape can happen in a committed relationship

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23 26 29

24 27

Rape can happen between individuals of any gender

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Victims of intimate partner violence may return to their perpetrator for reasons that may not seem rational to others

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Drug-facilitated sexual assault is common, and the most common drug used is alcohol

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Being drunk doesn't excuse a perpetrator's own behavior

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A wide variety of responses are normal for victims: people are different and react differently—don’t make assumptions about how they “should act”

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How people mentally process what happened to them affects the way the brain encodes and decodes memories of what occurred

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Why Don't People Tell Right Away

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Why Don't People Tell Right Away

The Regulations tell us:

Fear of retaliation

Fear of not being believed

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Why Don't People Always Remember

Also need to recognize that a party should not be “unfairly judged due to inability to recount each specific detail of an incident in sequence, whether such inability is due to trauma, the effects of drugs or alcohol, or simple fallibility of human memory” (30323)

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A Note About Trauma

Assume all parties and witnesses may be dealing with trauma – from this or other incidents

Meet them where they are

Help them tell their story as part of the process

Signs of trauma ≠ policy violation

No signs of trauma ≠ no policy violation

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Stereotypes Affect Response

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Avoiding Sex Stereotypes

“Must” not rely on sex stereotypes: Also helpful to avoiding pre-judgment of facts, remaining unbiased and impartial

Examples of sex stereotypes in comments (30253):

Women have regret sex and lie about sexual assaults

Men are sexually aggressive or likely to perpetrate sexual assault

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Sex Stereotypes Concerns in Preamble

Examples of concerns from commentators:

More likely to punish pregnant women, people of color, people with disabilities, people from different cultures, and LGBTQ students because of harmful stereotypes (30259-30260)

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Avoiding Sex Stereotypes

Age of consent

Dating vs. arranged marriages

Attitudes towards homosexuality

Attitudes towards intimate partner violence

Cooperating with investigations

Sharing personal information

Reactions toward authority figures

Reactions toward male vs. female

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Culture Affects Response

I won't report it if it doesn't feel wrong.

I'll admit it because I don't understand it's prohibited.

I won't report it if I would be a snitch.

It's impolite to look you in the eye, so I'll look down the whole time.

I deserved it. It's normal.

Reporting this would result in serious consequences at home.

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Process YOUR Response

Is your assessment based on your culture, or theirs, or both? (It shouldn't be.)

Is your assessment based on stereotypes you hold based on sex? Race? Culture? Yours or theirs? (It shouldn't be.)

Is your assessment based on their role (Complainant or Respondent)? (It shouldn't be.)

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Process YOUR Response

Is your assessment based on a person you like or someone you identify with? (It shouldn't be.)

Is your assessment based on a person “acting guilty” by not making eye contact or fidgeting? (It shouldn’t be.)

Would you have done things differently?

If so, SO WHAT?

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Counterintuitive Response

If they didn't act they way you might have, that doesn't mean it isn't true.

Stop and consider carefully before you decide someone is lying because they responded in a way different from how you would have responded.

Counterintuitive response has to be measured to another's perspective. Be careful to use a valid measurement.

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