J A N E T P . J U D G E , E S Q . S P O R T S L A W A S S O C I A T E S L L C

Title IX Coordinator Training

•  DCL – Apri l 4, 2011 •  Freeh Report •  BU Campus Cl imate Report •  Recent Resolution Agreements •  OCR Speaks •  Two Cases – One Real , One Imagined •  Policy And Investigation Guidel ines

AGENDA

The DCL

� Why OCR Issued the DCL ¡  Issued to remind schools of their responsibilities to take immediate

and effective steps to respond to sexual violence in accordance with the requirements of Title IX.

� DCL ¡  Provides Guidance re: Sexual Violence Cases and Criminal

Investigations ¡  Policy Requirement ¡  Title IX Coordinator ¡  Adopt and Publish Grievance Procedures ¡  Proactive Steps, including Training ¡  Title IX, FERPA, Clery Act ¡  Examples of Approaches

Title IX Coordinator Identification: Sample Page from the University of Virginia: Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination based on gender in educational programs which receive federal financial assistance. Athletics are one component of Title IX. Other programs and activities which may be included are: recruitment, admissions, financial aid, and scholarships; course offerings and access; hiring and retention; and, benefits and leave. Title IX also protects students and employees, both male and female, from unlawful sexual harassment in school programs and activities. In compliance with Title IX, the University of Virginia prohibits discrimination in employment as well as in all programs and activities on the basis of sex. The Title IX Coordinator monitors compliance with the regulations of this law. Individuals with questions or concerns about Title IX, and/or those who wish to file a complaint of non-compliance, may contact the University's Title IX Coordinator: Darlene Scott-Scurry Office of Equal Opportunity Programs Washington Hall, East Range P.O. Box 400219 Charlottesville, Virginia 22904 Phone: (434) 924-3200 TDD: (434) 924-4327 Fax: (434) 924-1313 Email: scottscurryd@virginia.edu The U.S. Department of Education's Office for Civil Rights (OCR) is the division of the federal government charged with enforcing compliance with Title IX. Information regarding OCR can be found at: www.ed.gov/about/offices/list/ocr/index.html

The DCL

�  School’s Obligations: ¡  If a school knows or reasonably should know of alleged sexual

harassment, including sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred

¡  Take prompt and effective steps to end sexual harassment, including sexual violence, prevent its reoccurrence, and address its effects

¡  Take steps to protect the complainant as necessary, including interim steps

¡  Provide equitable opportunities to present witnesses and other evidence and the same appeal rights

¡  Implement a preponderance of the evidence standard ¡  Provide notification to both parties of outcome of complaint

OCR Technical Assistance

�  Helpful materials may be found at the OCR reading room. ¡  http://www2.ed.gov/about/offices/list/ocr/publications.html

�  OCR guidance and instructive resolution agreements, including: ¡  Merrimack College (MA), OCR Case No. (01-10-6001)(athletics) ¡  Butler University (IN) (05-11-6001)(athletics) ¡  Anoka-Hennepin School District (MN): (05115901)(harassment) ¡  University of Notre Dame – Notre Dame (IN): (#05-11-6901)(harassment) ¡  Eastern Michigan University (MI): (15096002)(harassment) ¡  Notre Dame college (OH): (15096001)(harassment) ¡  Ball State University (IN): (05096001)(athletics)

�  OCR also offers technical assistance to institutions that request guidance and officials have stated that it is unlikely that such a request would prompt an investigation.

Presidents and Boards

�  Freeh Report ¡  Encourage Reading ¡  Issues of Privilege ¡  Clery Act Discussion ¡  Internal Investigations ¡  Not just about the Letter of

the Law ¡  Instructive for those who do

Investigations

�  BU Task Force result of allegation of sexual misconduct by team members. “Your charge is to review…the culture and climate of the men’s hockey program.” “I encourage you to reach out broadly to our faculty, staff and students, including members of the team and other athletes, university community and alumni.” BU President Summary of results posted on school’s website. Troubling findings.

Due Process

� Due Process Elements: ¡  Notice ¡  Meaningful Opportunity to be Heard ¡  Fairness

� Public v. Private � What is the source of the rule to be enforced? � Arrests/Accusations vs. Convictions

Recent Cases – Yale University

Title IX Coordinator and Deputy ÷ Coordinate and Track Trends (Housing, Residential Life, Deans,

Health and Counseling Services, Police Department) ÷ Provide information re: Title IX rights, processes, interim measures,

right to file criminal complaint ÷ Review semiannually all formal and informal complaints with

University Wide Committee (UWC) ÷ Review Memorandum of Understanding (MOU) with Yale Police

Department ÷ Assess efficiency of compliance efforts

Grievance Procedures ÷ University-Wide Committee on Sexual Misconduct/Website ÷ Primary mechanism to respond to complaints of sexual misconduct

Recent Cases – Yale University

Annual Training ÷ Title IX Coordinators and UWC members ÷ Yale Police Department Officers ÷ Residential College Deans ÷ Sexual Harassment and Assault Response and Education Center Staff ÷ Freshman Counselors ÷ All Freshman Students ÷ Refresher for Sophomore Students, including Bystander Intervention ÷ Leaders of Registered Student Groups and Varsity Teams

¢  Alcohol ¢  Hazing ¢  Sexual Misconduct

÷ Other Populations identified through Campus Climate Assessment

Recent Cases – Yale University

University Climate Assessment ÷ At least annually with regard to gender discrimination, sexual

misconduct and Title IX ÷ Seek input from students and student groups, including women’s

groups and others

Miscellaneous ÷ Education efforts to promote responsible drinking ÷ Student leadership councils to promote norms of responsible conduct ÷ Study and address issues related to hazing and initiations by student

organizations.

University of Notre Dame

¡  Campus visits ¡  Interviews with University of Notre Dame and St. Mary’s

College officials ¡  Extensive review of written policies and procedures ¡  Examination of files related to sexual harassment cases ¡  Internal review of previous OCR cases involving the school ¡  Review of media coverage, including coverage of one incident

resulting in suicide.

OCR Conducted:

University of Notre Dame Resolution Agreement

÷ Commitment to campus environment free of discrimination ÷ Specific information on sexual assault and misconduct in the code ÷ Express reference to the grievance process and non-retaliation

policies ÷ Alcohol amnesty provisions ÷ Examples of sexual misconduct ÷ Detailed definition of consent ÷ No contact orders ÷  Interim measures ÷  Include reference to cyber-harassment in university policy ÷ Express reference to the Preponderance of the Evidence standard ÷ Roadmap through the school’s process ÷ Discussion of confidentiality

University of Notre Dame Resolution Agreement

÷ Provision of alternative arrangements for complainants who do not want to be present in the same room as the accused during the disciplinary hearing.

÷ Discussion of Concurrent Criminal Investigations ÷ Time-frames and Notification Process ÷ Past relationships and Evidence ÷ Descriptions of available Support Services ÷ Broad Campus Coalition – Committee on Sexual Assault

Prevention ÷ Mandatory Orientation for New Students ÷ Focus Group/Climate Survey to be submitted to OCR

Written Report Elements (OCR Agreement)

�  Name and sex of alleged victim and person reporting �  Statement of the allegation, description of the incident, date and time of incident �  Date of complaint �  Date accused was interviewed �  Names and sex of all persons alleged to have committed harassment �  Names and sex of all known witnesses to the alleged incident �  Dates that any relevant documentary evidence was obtained �  Written statements of the complainant or victim if not complainant �  Date the University deferred investigation and disciplinary process, if necessary,

because complainant filed concurrent law enforcement complaint. Date investigation resumed

�  Outcome of the investigation and discipline imposed, if any. �  Response of University personnel and university-level officials, including any

interim and permanent steps taken with response to the complainant and the accused; and

�  A narrative of all action taken to prevent recurrence of any harassing incident, including any written documentation

�  Written rights provided to complainant within 24 hours of complaint

OCR School District Cases – Gender & Bullying

�  Anoka-Hennepin School District (MN) ¡  Peer-on-peer harassment ¡  Not conforming to gender stereotypes ¡  Conducted investigation with the DOJ ¡  Consent Decree:

÷  Review and improve policies by working with equity consultant ÷  Hire/Appoint Title IX Coordinator ÷  Train all Faculty, Staff and Students ÷  Hire Mental Health Consultant to assist Students subject to Sexual Harassment ÷  Create Anti-Bullying/Anti-Harassment Task Force ÷  Annual Survey ÷  Identify Hot Spots/Peer Leadership Team ÷  Annual Assessment

�  Tehachapi School District (CA) ¡  Important case to read

University of the Pacific

� Video � Case Study Discussion Points:

¡  Notifying complainant of additional incident? ¡  Perceptions about alcohol? ¡  Perceptions about going willingly to room? ¡  Late at night? ¡  Perceptions about flirting? ¡  Interim measures? ¡  Differing penalties? ¡  Allegations of retaliation? ¡  Follow-up . . .

Additional Case Study

On a Sunday in December, five days prior to the start of the winter break, the University’s Assistant Dean of Students, Dean Jones, is contacted by a female student, Jane Smith, who states that she was sexually assaulted at a fraternity house over the weekend.

When Dean Jones asks for more information, Jane refuses to provide names or details but says she may be willing to talk more after school break in mid-January. She indicates that she is devastated and feels unsafe. What information should Dean Jones request/provide before hanging up?

What if …? �  This occurred off campus? �  The call was from a roommate? �  Jane reported that the attacker is neither a student nor an

employee? �  Jane says she was intoxicated? �  Jane is 17 years old? �  The call came into the crisis hotline instead of Dean Jones? �  Jane reported that she told the police and they are taking care

of it? �  Jane states that the alleged attacker lives in her dorm? �  Jane states they are in classes together? �  Jane states they are on the same team?

Case Study Continued …

The next day, Dean Jones gets a call from Campus Safety indicating that Jane reported the assault to the local police and provided the name of the alleged assailant. Campus Safety tells Dean Jones that the local police have not provided the name.

�  What are Dean Jones’ options?

Case Study Continued …

On Wednesday, Campus Safety states that the police have identified sophomore Joe Anderson as the alleged assailant. He has not been charged and the police investigation is ongoing. There are two days of exams remaining but many students have left campus.

�  What should Dean Jones do?

�  What are the next steps?

What if…?

�  Joe’s lawyer calls Dean Jones to say that Joe wants to file a sexual assault complaint against Jane for assaulting Joe?

�  How does Dean Jones know it’s Joe’s lawyer?

�  Should Dean Jones engage in discussion?

�  What about the lawyer’s claims?

�  Does the school need to investigate this new claim?

•  T i t l e I X r e q u i r e s s c h o o l s t o h a v e p o l i c i e s w i t h c e r t a i n e l e m e n t s a n d g r i e v a n c e p r o c e d u r e s

•  E f f e c t i v e p o l i c i e s p r o v i d e n o t i c e o f p r o h i b i t e d b e h a v i o r

•  I n v e s t i g a t i o n a n d g r i e v a n c e p o l i c i e s p r o v i d e t h e f r a m e w o r k f o r i n v e s t i g a t i o n s , h e a r i n g s a n d i n s o m e c a s e s , a p p e a l s

•  G o o d p o l i c i e s a n d p r o c e d u r e s h e l p t o e l i m i n a t e c o n f u s i o n a n d a n x i e t y

Policy and Procedures

Do our institution’s policies …

�  Provide notice of the grievance procedures, including where a complaint may be filed?

�  Make it clear that they apply to complaints alleging harassment by employees, other students or third parties?

�  Allow for adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to provide witnesses and other evidence?

�  Include designated and reasonably prompt time frames for the major stages of the complaint process?

�  Ensure that the parties receive written notice of the outcome of the complaint?

�  Include an assurance that we will take steps to prevent recurrence of any harassment, and to correct its discriminatory effects on the complainant and others if appropriate?

Our Policies

�  Do we have a policy regarding amnesty for underage drinking for complainants?

�  Do our policies address sexual violence, either as a form of sexual harassment or in a separate policy?

�  Do they define sexual harassment, sexual violence? ¡  With elements?

�  Do we provide informal and formal procedures? �  Are we clear that mediation is not appropriate for any cases

involving sexual assault? �  Do we make clear that participants may opt out of informal and

request formal resolution at any time? �  Do our policies explain:

¡  How to file a complaint; ¡  Where to file a complaint; and ¡  What happens when you file a complaint? ¡  (Do our policies provide an easily accessible roadmap that a student would understand?)

Our Policies and Procedures

�  Do we explain the counseling, law enforcement, and medical options available to the complainant and respondent?

÷ Provide resources online? ÷ In person? ÷ Who does this? ÷ How is it documented?

� Do we consider how we may implement interim measures to address the complaining student’s concerns?

÷ Included in policy? ÷ In person? ÷ Who does this? ÷ How do we ensure equity

and due process? ÷ How is it documented?

�  Do we expressly

prohibit retaliation? �  How do we prohibit

retaliation? �  No contact orders? �  Interim measures? �  How do we address 3rd

party retaliation by groups, parents, friends, teammates, etc.?

Retaliation

� Are our policies clear regarding the limitations on confidentiality?

� Do our policies contain timeframe targets for major steps in the process? ¡ How do we ensure that timely updates are

provided and that the investigation is completed in a timely manner?

¡ Who is responsible?

Our Policies

� Do they allow for adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to provide witnesses and other evidence?

� Examples: ¡  If the respondent gets a pre-hearing meeting to tell his side

or to be educated on the process, the complainant should get the same.

¡  Respondent should not be allowed to review the complainant's statement unless the complainant gets to do the same.

Are our policies and procedures equitable?

Equality In The Grievance Process / Hearing

� Examples Continued: ¡ Parties must have an equal opportunity to present

relevant witnesses and other evidence. ¡ Parties must be afforded similar and timely access

to any information to be used at the hearing (consistent with FERPA and other confidentiality issues).

¡  If lawyers are allowed to participate, opportunities must be the same for both parties.

¡  If respondent gets to present character witnesses, so should complainant.

Equality In The Grievance Process / Hearing

�  Examples Continued: ¡  Policies should not allow the parties to question or cross-

examine each other directly. ¡  Do we have a process to implement if the complainant does

not want to be in the same room as the respondent during a hearing or at any other stage in the process?

¡  Any “real or perceived” conflicts of interest between the fact-finders and the parties should be disclosed and addressed.

¡  OCR recommends – but does not require -- an appeal process. ¡  If an appeal process is provided, it MUST be provided

equitably. ¡  In other words, both parties must be given the right to appeal.

Standard of Proof

�  Fact-finders must use a preponderance of the evidence standard when making a decision. ¡  Not clear and convincing and not beyond a reasonable

doubt.

¡  Think “more likely than not.”

¡  Just a tad over 50/50

Documentation and Appeals

� Must maintain documentation of all proceedings,

which may include findings of fact, transcripts or audio recordings.

� Do we have guidance regarding documentation so we are fair and consistent in our approach?

� Do we provide written notice of the outcome, and any appeal to both parties?

�  Is notice concurrent? � What is included in the notice? � Are any Clery Act issues implicated?

•  W h e n a n i n s t i t u t i o n i s o n n o t i c e o f p o t e n t i a l s e x u a l h a r a s s m e n t , i n c l u d i n g s e x u a l v i o l e n c e , i t m u s t c o n d u c t s o m e s o r t o f i n v e s t i g a t i o n .

•  S o m e s c h o o l s u s e a m i x o f i n f o r m a l i n v e s t i g a t i o n a n d f o r m a l h e a r i n g s . O C R d o e s n o t d e f i n e t h e p r o c e s s t h a t m u s t b e u s e d b y e v e r y s c h o o l b u t r a t h e r s e t s f o r t h e l e m e n t s t h a t m u s t b e i n a s c h o o l ’ s p r o c e s s .

•  I n a n y s y s t e m , h o w e v e r , t h e r e m u s t b e t r a i n e d i n v e s t i g a t o r s w h o u n d e r s t a n d t h e s c h o o l ’ s p o l i c i e s a n d p r o c e d u r e s a n d t h e e x p e c t a t i o n s o f t h e D C L .

•  T h i s s e c t i o n i s d e s i g n e d t o a d d r e s s i s s u e s o f i m p o r t a n c e i n t h e i n v e s t i g a t o r y p r o c e s s .

Investigations

The Investigation

� Investigations come in many shapes and sizes: ¡  An initial assessment ¡  A student conduct procedure ¡  A student-to-student grievance procedure ¡  A Title IX complaint procedure

� An investigation must occur even if it’s unlikely there will be institutional action

� Investigation should be well documented with an understanding that the content may be disclosed.

DCL Requirements: In the Beginning

•  Immediate and appropriate action to investigate promptly.

•  Investigator need not be a lawyer. •  Who conducts investigations? •  Are investigators trained? •  How are investigator’s notified of an investigation? •  Do they consult with counsel? •  Who oversees investigations (timelines, etc.)? •  Is Title IX Coordinator kept informed?

Concurrent Investigations

�  Is the investigator prepared to intersect with the criminal justice system?

� Who is the contact person on each side? � Do we have a Memorandum of Understanding

(MOU) in place? ¡  right to file concurrent complaints, ¡  provide complainant with written info, ¡  provide TIX coordinator with synopses of sexual misconduct

complaints, ¡  provide TIX coordinator with access to records of investigation and

findings so long as does not compromise criminal proceeding

The Reluctant Complainant

� What if … ¡ Complainant wants no more action ¡ Complainant requesting confidentiality or identity

not disclosed ÷ Documented Discussion ÷ Limited ability to act ÷ No retaliation

� School still must evaluate request and risk � Inform potential complainant of decision

and reasons � Issues regarding underage complainants.

Good Investigations … �  Assess and address potential conflicts of interest of the

investigator and any other institutional employees involved in the process.

�  Are thorough and impartial �  Are well documented �  Identify, catalog and address all evidence reviewed and

relevance �  Address evidence offered but not reviewed (if any) and

reasons for not reviewing. �  Assess credibility and contain documentation regarding the

strength of non-tangible evidence �  Result in rational and defensible results that fairly set forth

the evidence proffered by both sides and independently uncovered by the investigator.

�  Document anti-retaliation discussions with every individual interviewed.

Preparation for the Investigation

�  Review school policy and grievance process. �  Determine how investigation fits in the overall school

process. �  Identify the essence of the complaint? �  Identify the elements of the complaint that must be

shown as defined in the policy (e.g., harassment, assault, rape).

�  Revisit the standard of proof and how it is to be applied. �  Determine who is decision-maker? Is the investigator

making a determination or recommendation or simply investigating and providing a documented report to a decision-maker?

�  What authority does the investigator have to gather evidence and initiate interviews? Subpoena power?  

Preparation for the Investigation

�  School’s position on involvement of parents. �  School’s position on involvement of lawyers. � Dealing with the media. � Develop an investigation plan, including

timelines consistent with university policy and procedures.

� Remember, if timelines needs to be extended, document why and provide updates.

�  Include witnesses to be interviewed, tangible evidence to be gathered, locations to be visited, reports to be review and access to prior reports involving similar groups, accused, locations, where appropriate.

Conducting Investigations: Purposes

•  Gather evidence •  Make credibility determinations •  Recommend appropriate action - charges to be

brought or action to be taken –  Respond to the complaint –  Protect complainant or preserve the legitimacy of the process –  Prevent future harassment –  Implement or update current policies

•  Make sure evidence is fully developed to support the ultimate decision

Investigatory Skills

� Asking open ended questions to encourage disclosure and eliminate any preconceived direction on the part of the investigator

� Thoughtful strategy for dealing with difficult subjects, including reluctant or hostile witnesses

� How to distinguish relevant from irrelevant � How to make credibility assessments � How to be empathetic while remaining neutral � How to document the investigation  

Credibility

� Consider: ¡  Level of detail and consistency of each person’s account ¡  Any evidence that alleged harasser has been found to

have harassed others, or that accuser has made false allegations against others

¡  Timing of complaint as compared to alleged harassment ÷ See OCR’s Revised Sexual Harassment Guidance: Harassment of

Students by School Employees, Other Students or Third Parties (January 2001), p. 9.

Assessing Credibility

� Demeanor � Body language �  Logical? � Consistent? � Ulterior Motives? � Reactions to evidence � Corroborating evidence

The Initial Meeting with the Complainant

�  Setting the foundation and explaining the process, discussing outcomes

�  Identifying the issues, gathering information and witness names

�  Explaining the complainant’s and alleged perpetrator’s rights and responsibilities.

�  Instilling confidence in the process and the players �  Addressing support resources �  Addressing (and documenting) anti-retaliation

discussion with instruction to report alleged retaliation immediately to ___. Ensure that proper contact information is provided.

The Initial Meeting with the Respondent

�  Setting the foundation and explaining the process �  Identifying the issues and gathering information

and witness names � Explaining the alleged perpetrator’s and the

complainant’s rights and responsibilities. �  Instilling confidence in the process and the players � Addressing support resources � Addressing (and documenting) anti-retaliation

discussion.

Developing the Report

� Timely factual findings on each element of definition

� Documented credibility determinations ¡  Provide examples when relevant ¡  Found A more credible to B on this point because . . .

� More likely than not standard � Gut check – Is this investigation thorough and

impartial � Never pays to cut corners.

The Campus Community: Prevention / Remediation

� Educate, educate, educate. � Offer counseling, health, mental health and

comprehensive victim services to all students affected by sexual harassment.

�  Focused training for all employees who interact with students regularly on recognizing and appropriately addressing sexual harassment.

�  Focused training for certain student groups. � Regular meetings between the Title IX

Coordinator and law enforcement and counseling services.

� Create a committee of students and school officials to identify strategies, weak spots, and red flags.

� Reissue the institution’s policies.

The Campus Community: Prevention / Remediation

Notice Of Outcome

� Whether a Violation of the School Policy occurred. � Must notify both parties of outcome in writing. � Permitted to disclose sanctions “that directly relate

to the complainant.” � Good time to consult with the institution’s counsel

to ensure contents of notice are in keeping with all relevant laws.

� Notice should be provided concurrently.

Interim Measures May Become Ongoing Measures

� Ensure the parties aren’t in the same classes. � Move the parties to different residence halls. � Prevent and address retaliation. � Counseling and mental health services. � Medical services. � Academic support services, including tutoring. � Course withdrawal.

� Do we conduct campus climate surveys around issues of sexual harassment and sexual violence?

�  If so, ¡  Are the surveys conducted annually? ¡  Are reports issued? ¡  Are the surveys helpful? ¡  Are the surveys used to develop effective programs

designed to address any issues identified?

� Are Title IX Coordinators involved in the process?

Campus Climate Surveys

Additional Issues/Social Media

�  Sexting � Bullying � Harassment � Hazing � Alcohol � Hate Speech � Retaliation

� Have we included online conduct in our policies and in our trainings?

� Are we prepared to address complaints based on online conduct?

Questions?