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
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”)
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
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”) 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
Developing Policy Provisions
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
InvesOgaOon Procedures
• 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?
InvesOgaOon Procedures
• 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
InvesOgaOon Procedures
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
Complaint
Inves2ga2on
Grievance/AdjudicaOon
Complaint
Inves2ga2on Probable Cause
Determina2on
Grievance/AdjudicaOon
Grievance/AdjudicaOon
• 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
Grievance/AdjudicaOon
Complaint
Inves2ga2on
Probable Cause
Determina2on
Informal Resolu2on
Hearing on Factual Disputes
Grievance/AdjudicaOon
Grievance/AdjudicaOon
• 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
Hearing on Factual Disputes
Proposed Findings & Conclusions
Grievance/AdjudicaOon
Complaint
Inves2ga2on
Probable Cause
Determina2on
Informal Resolu2on
Hearing on Factual Disputes
Proposed Findings & Conclusions
Ruling by VPSA
Grievance/AdjudicaOon
Complaint
Inves2ga2on
Probable Cause
Determina2on
Informal Resolu2on
Hearing on Factual Disputes
Proposed Findings & Conclusions
Ruling by VPSA
Appeal to President
Grievance/AdjudicaOon
Complaint
Inves2ga2on
Probable Cause
Determina2on
Informal Resolu2on
Hearing on Factual Disputes
Proposed Findings & Conclusions
Ruling by VPSA
Appeal to President
Final Decision
Grievance/AdjudicaOon
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/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
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
Approach for Stakeholders
Update President &
Board
Approach for Stakeholders
Update President & Board
Implement interim policy (and
announce process)
Approach for Stakeholders
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
Approach for Stakeholders
Update President &
Board
Implement interim policy
Create broad-‐based task
force
Assess problem with climate survey
Approach for Stakeholders
Update President &
Board
Implement interim policy
Create broad-‐based task
force
Assess problem with climate survey
Educate task force members
Approach for Stakeholders
Update President &
Board
Implement interim policy
Create broad-‐based task
force
Assess problem with climate survey
Educate task force members
Prepare draU using interim policy/survey
Approach for Stakeholders
Update President &
Board
Implement interim policy
Create broad-‐based task
force
Assess problem with climate survey
Educate task force members
Prepare draU using interim policy/survey
Conduct campus forums
Approach for Stakeholders
Update President &
Board
Implement interim policy
Create broad-‐based task
force
Assess problem with climate survey
Educate task force members
Prepare draU using interim policy/survey
Conduct campus forums
Revise draU
Approach for Stakeholders
Update President &
Board
Implement interim policy
Create broad-‐based task
force
Assess problem with climate survey
Educate task force members
Prepare draU using interim policy/survey
Conduct campus forums
Revise draU
Implement permanent
policy