Dra$ingaTitleIXCompliant( Sexual(Misconduct(Policy(€¦ · TitleIXComplexity(Title!IX Complaint! Criminal! Inves2gaon! Public Relaons! Student Code! Faculty/ Employee! Discipline!

Dra$ing a Title IX Compliant Sexual Misconduct Policy

Jim Newberry Steptoe & Johnson PLLC

jim.newberry@steptoe-‐johnson.com 859.219.8226

Title IX Complexity

Title IX Complaint

Criminal Inves2ga2on

Public Rela2ons

Student Code

Faculty/Employee Discipline

OCR Supervision

Li2ga2on

Policy Changes

Title IX Inves2ga2on

Course Overview

•  Course Descrip2on •  Learning Outcomes

‒  Understanding essen2al elements of a compliant sexual misconduct policy

‒  Iden2fying campus stakeholders who need to be involved

‒  Developing a process to involve stakeholders

PotenOal Title IX Stakeholders

Board

President

VP/Enrollment Management

VP/Student Affairs

Residence Life

Student Health Service

VP/Academic Affairs

VP/Business Affairs

HR Director

Campus Safety

VP Advancement

Communica2ons

Development

AD

General Counsel Faculty

Agenda Overview

• Overview –  Legal Context –  Poli2cal Context –  Three-‐Step Policy Development Process

Agenda Overview

•  EssenOal Elements of a Compliant Sexual Misconduct Policy –  Introduc2on –  Scope of Policy –  Op2ons for Assistance –  Title IX Coordinator –  Defini2ons –  Repor2ng Policies (including confiden2ality) –  Inves2ga2ng Procedures and Protocols

Agenda Overview

•  Lunch •  CompleOng the Elements –  Grievance/Adjudica2on Procedures –  Preven2on and Educa2on –  Training

•  Pulling It All Together –  DraUing Techniques –  Iden2fying Campus Stakeholders –  Involving Campus Stakeholders –  Audit/External Assessment

•  CerOficates of AUendance

Legal Context

•  Statute & Regula2ons • Guidance –  2001 –  2011 –  2014

•  VAWA

PoliOcal Context

•  Task Force Report -‐ April 29 •  Policy Checklist -‐ April 29 •  VAWA Regula2ons -‐ June 20 •  Proposed Campus Accountability and Safety Act -‐ July 30

•  NFL -‐ Pick a Date •  Penn State/NCAA Bowl Ban -‐ September 8 •  White House Announcement -‐ September 19

Poli2cal Context – A Recent Month

•  Jan. 6 – UVa releases new fraternity safety rules •  Jan. 7 – OCR updates list of ins2tu2ons under inves2ga2on

•  Jan. 17 – NY Gov. announces support for including privates in “yes means yes”

•  Jan. 22 – 28 universi2es announce par2cipa2on in AAU climate survey

•  Jan. 23 – “Hun2ng Ground” premiers at Sundance Film Fes2val

Poli2cal Context – A Recent Month

•  Jan. 26 -‐ White House Task Force releases sample MOU for local law enforcement

•  Jan. 26 -‐ VA Senate approves legisla2on requiring public college employees to report sexual assaults to police

•  Jan. 27 -‐ UE report shows 104 colleges spent $17M to deal with sexual assault claims

•  Jan. 27 – Vandy convic2ons •  Jan. 29 – Dartmouth bans hard alcohol and starts sexual violence preven2on program

Developing Policy Provisions

1. Develop master checklist of each required or suggested item from sources ‒ Note source of item for future reference ‒ Note whether item is required (“must”) or suggested (“should”)

Title IX Checklist

Item No. Issue Yes/

No Required/ Suggested

Source of Obliga2on

Guidance Category

Checklist Sec2on

1. Does policy require school to take immediate and appropriate steps to inves2gate or otherwise determine what happened when school knows or reasonably should know of possible sexual violence?

R 2014 Q&A, A-‐5 and D-‐2; 2011 DCL, p. 4.

School's Obliga2on

01. Introduc2on

2. Does policy require school to take prompt and effec2ve steps reasonably calculated to end the sexual violence, eliminate the hos2le environment, prevent its recurrence, and, as appropriate, remedy its effects?

R 2014 Q&A, A-‐5, D-‐2 and J-‐2; 2011 DCL, p. 4.

School's Obliga2on

01. Introduc2on


1. Develop master checklist of each required or suggested item from sources ‒ Note source of item for future reference ‒ Note whether item is required (“must”) or suggested (“should”)

2. Categorize each checklist item by sec2ons iden2fied in model sexual misconduct policy outline

Model Policy Outline

1. Introduc2on 6. Repor2ng Policies and Protocols

2. Scope of Policy 7. Inves2ga2on Policies and Protocols

3. Op2ons for Assistance Following an Incident of Sexual Misconduct

8. Grievance/Adjudica2on Procedures

4. Title IX Coordinator 9. Preven2on and Educa2on

5. Defini2ons 10. Training

Title IX Checklist

Item No. Issue

Yes/ No

Required/ Suggested

Source of Obliga2on

Guidance Category

Checklist Sec2on

1. Does policy require school to take immediate and appropriate steps to inves2gate or otherwise determine what happened when school knows or reasonably should know of possible sexual violence?

R 2014 Q&A, A-‐5 and D-‐2; 2011 DCL, p. 4.

School's Obliga2on

01. Introduc2on

2. Does policy require school to take prompt and effec2ve steps reasonably calculated to end the sexual violence, eliminate the hos2le environment, prevent its recurrence, and, as appropriate, remedy its effects?

R 2014 Q&A, A-‐5, D-‐2 and J-‐2; 2011 DCL, p. 4.

School's Obliga2on

01. Introduc2on


1.  Develop master checklist of each required or suggested item from sources ‒  Note source of item for future reference ‒  Note whether item is required (“must”) or

suggested (“should”) 2.  Categorize each checklist item by sec2ons

iden2fied in model sexual misconduct policy outline

3.  DraU your ins2tu2on’s sexual misconduct policy following the outline


So how will the completed policy look?

The Completed Policy!

IntroducOon

•  Prompt and effec2ve steps to end sexual violence •  Immediate and appropriate steps to inves2gate, including same-‐sex offenses •  Dissemina2on of no2ce of non-‐discrimina2on •  Protect the complainant •  Policies prohibi2ng inappropriate conduct by personnel

Scope of Policy

•  Policy applies to all students, employees and third-‐par2es, regardless of sexual orienta2on or gender iden2ty •  Describe geographic scope of policy •  Describe rela2onships covered and those excluded •  Brief descrip2on of confiden2ality policy

OpOons for Assistance

•  Policy must cover sexual misconduct both on and off campus •  Policy must describe immediate response services available to complainant •  School must provide interim protec2on for complainants of sexual misconduct •  Policy must provide for counseling and support services without charge to vic2ms

OpOons for Assistance

•  On-‐campus advisor/counselor for immediate assistance •  Rape crisis center-‐-‐MOU •  Police assistance-‐-‐MOU •  Counseling services-‐-‐MOU •  Schedule/dormitory changes •  Advocate/advisor during inves2ga2on, disciplinary ac2on

Title IX Coordinator

•  School must designate Title IX Coordinator •  Title IX Coordinator has appropriate authority •  Name and contact informa2on for Coordinator published on web site, handouts, etc.

•  Provide training for students, faculty, and staff •  All complaints reported to Title IX Coordinator •  Conducts inves2ga2ons •  Remedies made available •  Monitoring and advising

DefiniOons

•  Consent: What is non-‐consensual sexual contact? •  Da2ng Violence •  Domes2c Violence •  Stalking •  Responsible Employee •  Retalia2on

ReporOng Policies

•  Policy must state who is responsible for repor2ng complaints of sexual misconduct

•  Are responsible employees no2fied of repor2ng requirement?

•  Are responsible employees trained on their du2es, including when and what to report and confiden2ality requirements?

•  Retalia2on prohibited •  No2fica2on to complainant required •  Clery Act repor2ng

InvesOgaOon Procedures

•  Require school to resume inves2ga2on when law enforcement has completed the evidence-‐gathering stage of criminal inves2ga2on

•  Require school to process all complaints regardless of whether conduct occurred on campus to determine if conduct occurred in context of ed program

•  Require school to process all complaints regardless of whether conduct occurred on campus to determine if conduct had con2nuing effects on campus or in an off-‐campus ed program


•  Require school to treat complaints of off-‐campus sexual violence the same as on-‐campus complaints •  If off-‐campus sexual violence did not occur in the context of ed program, does policy s2ll require school to consider whether the alleged misconduct has contributed to a hos2le environment on or off-‐campus?


•  Require school to assess whether off-‐campus sexual violence creates con2nuing effects on ed programs on or off campus that create a hos2le environment and, if so, to treat it the same as an on-‐campus hos2le environment

•  Specify process for preserving evidence •  Provide for immediate interim steps to protect complainant pending final outcome of inves2ga2on


•  Specify types of interim academic accommoda2ons •  Require school to immediately inves2gate any form of retalia2on against complainant

Grievance/AdjudicaOon

•  Adopt and publish procedures providing for prompt and equitable resolu2on of complaints •  Provide no2ce to students of the grievance process, including where to file complaints •  Provide for the applica2on of procedure to complaints by students •  Provide for adequate, reliable, and impar2al complaint inves2ga2on


•  Provide wrisen no2ce to par2es of outcome of complaint and any appeal

•  Provide assurance that school will take steps to prevent recurrence and remedy effects

•  Include statement of school’s jurisdic2on over Title IX complaints

•  Include defini2ons of sexual harassment and explana2on of hos2le environment

•  Include repor2ng policies and protocols


•  Iden2fy employee(s) responsible for evalua2ng confiden2ality requests

•  Provide no2ce that Title IX prohibits retalia2on •  Provide no2ce of student’s right to file criminal and Title IX complaints simultaneously

•  Provide no2ce of interim measures to protect student in educa2onal setng

•  Establish preponderance of evidence as standard in resolving complaints


•  Provide no2ce of poten2al remedies for complainants

•  Provide no2ce of poten2al sanc2ons against perpetrators

•  Provide sources of counseling, advocacy, and support

•  Provide prompt and equitable resolu2on of complaints

•  Provide con2nuing protec2on for complainant aUer determina2on that viola2on occurred


•  Provide remedies for complainant and broader student popula2on when perpetrator is not affiliated with school

•  Provide equal opportunity for par2es to present evidence and witnesses

•  Provide equal opportunity for par2es to be represented by counsel

•  Impose equal restric2ons on the ability of lawyer or other advisors to par2cipate


•  Provide equal opportunity to present expert tes2mony

•  Provide equal opportunity for appeals •  Provide equal opportunity for par2es to be present at the hearing

•  Permit hearing to proceed if complainant chooses not to asend

•  Provide an equal opportunity to cross-‐examine witnesses


•  Provide no2ce to both par2es about outcome of appeal in wri2ng

•  No2fy complainant of: –  Whether alleged conduct occurred –  Any remedies offered complainant –  Any sanc2ons imposed on perpetrator as a direct result of the complaint

–  Steps taken to eliminate hos2le environment, if one exists, and prevent recurrence

•  Require same type of appellate review for both par2es


•  Iden2fy the persons who may asend and/or par2cipate at hearing and the extent of their par2cipa2on

•  Explain the results of the adjudica2on process, including remedies for complainant and for school community

•  Prohibit school from requiring party to abide by nondisclosure agreement as to hearing outcome

•  Require school to adopt and publish grievance procedures


•  Describe appellate procedures –  Grounds –  Standards for review –  Person or en2ty who will hear the appeal –  Reasonably prompt 2me frames

•  Require grievance procedures be applied to sex discrimina2on complaints filed by students against employees, other students, or third par2es

•  Require grievance procedures be applied to harassment complaints filed by students against employees, other students, or third par2es


•  No2fy complainant of right to terminate informal complaint resolu2on efforts at any 2me to proceed with formal process

•  No2fy students and employees of procedures

•  Require adequate, reliable, and impar2al inves2ga2on of complaints, including opportunity for both par2es to present witnesses and other evidence

•  Designate reasonably prompt 2me frames for major stages of the process

•  Provide wrisen no2ce to par2es of the outcome of the complaint


•  Provide par2es with similar and 2mely access to informa2on used at hearing

•  Provide alleged perpetrator with due process (if school is state-‐supported)

•  Require proceedings provide a prompt, fair and impar2al inves2ga2on and resolu2on

•  Provide both par2es with wrisen no2ce of how either party may appeal

•  Require no2ce to par2es of any change in hearing results that occurs prior to results being final

•  Require no2ce to par2es when results become final


•  Require hearing be conducted by officials who receive annual training on: –  Issues rela2ng to: o Domes2c violence o Da2ng violence o Sexual assault o Stalking

– How to conduct an inves2ga2on and hearing process to protect vic2m safety and promote accountability

Complaint


Complaint

Inves2ga2on


Complaint

Inves2ga2on Probable Cause

Determina2on



•  If no probable cause, maser dismissed •  If probable cause is found and: ‒  If facts are disputed, hearing is scheduled to resolve the factual disputes, or

‒  If facts are not disputed, remedies and sanc2ons are imposed

Complaint

Inves2ga2on Probable Cause

Determina2on

Informal Resolu2on


Complaint

Inves2ga2on

Probable Cause

Determina2on

Informal Resolu2on

Hearing on Factual Disputes



•  Hearing Officer ‒  Must be trained annually ‒  May be lawyer but not required •  Hearing Board ‒  Must be trained annually ‒  Could involve mul2ple interests from campus community

‒  Must be commised to mul2ple hearings if needed

Complaint

Inves2ga2on

Probable Cause

Determina2on

Informal Resolu2on


Proposed Findings & Conclusions


Complaint

Inves2ga2on

Probable Cause

Determina2on

Informal Resolu2on



Ruling by VPSA


Complaint

Inves2ga2on

Probable Cause

Determina2on

Informal Resolu2on



Ruling by VPSA

Appeal to President


Complaint

Inves2ga2on

Probable Cause

Determina2on

Informal Resolu2on



Ruling by VPSA

Appeal to President

Final Decision


PrevenOon & EducaOon

•  Policy must be communicated to everyone •  Title IX coordinator must be iden2fied and contact informa2on provided •  School must have a sexual violence preven2on and educa2on program in place

Training

•  Mandatory training for new students and employees

•  Title IX coordinator must be trained regarding policy, repor2ng, response, counseling services, disciplinary proceedings, preven2on, coopera2on with other school authori2es

•  Responsible employees must be trained regarding repor2ng of complaints

•  Students trained on preven2on, complaint procedure, available services

Dra$ing Techniques

•  Use different font colors to specify whether a policy provision is: ‒  Required (with no ins2tu2onal flexibility)

‒  Suggested (with much ins2tu2onal flexibility)

‒  Neither required nor suggested (with total flexibility)

Dra$ing Techniques

•  Use different font colors to specify whether a policy provision is: ‒  Required (with no ins2tu2onal flexibility) ‒  Suggested (with much ins2tu2onal flexibility) ‒  Neither required nor suggested (with total

flexibility) •  Use footnotes for each required or suggested provision to provide link to the source document

Dra$ing Techniques

•  Timing ‒ Short-‐Term Need – Interim compliant policy ASAP

‒ Long-‐Term Needs o  Campus buy-‐in to overall effort to reduce sexual misconduct

o  Permanent compliant policy •  Interested and Necessary Stakeholders

Documents You Need Now

•  Grievance Procedure •  MOUs ‒  Local rape crisis center ‒  Local law enforcement •  Responsible Employee Guidelines •  Confiden2ality Policy (if not integrated into Sexual Misconduct Policy)

PotenOal Title IX Stakeholders

Board

President


VP/Student Affairs

Residence Life


VP/Academic Affairs

VP/Business Affairs

HR Director

Campus Safety

VP Advancement

Communica2ons

Development

AD


Title IX Stakeholders

Board

President


VP/Student Affairs

Residence Life


VP/Academic Affairs

VP/Business Affairs

HR Director

Campus Safety

VP Advancement

Communica2ons

Development

AD


Approach for Stakeholders

Update President &

Board


Update President & Board

Implement interim policy (and

announce process)


Update President &

Board

Implement interim policy

Create broad-‐based task

force

PotenOal Task Force Members

•  VP/Academic Affairs •  VP/Student Affairs •  VP/Business Affairs •  AD •  HR Director •  Residence Life Director •  Student Health Director •  Campus Safety Director

PotenOal Task Force Members

•  General Counsel •  Faculty Chair •  Other Faculty Representa2ves •  Student Government President •  Athletes •  Greek Life Representa2ves •  Parents/Alumni/Community Leaders •  Title IX Coordinator


Update President &

Board



force

Assess problem with climate survey


Update President &

Board



force


Educate task force members


Update President &

Board



force



Prepare draU using interim policy/survey


Update President &

Board



force




Conduct campus forums


Update President &

Board



force





Revise draU


Update President &

Board



force





Revise draU

Implement permanent

policy