Title IX TrainingEmployeeAugust 2020

TITLE IX REGULATIONSReleased by the Department of Education May 6, 2020

For the first time, the ED recognize sexual harassment, including sexual assault, is unlawful sex discrimination

Governing body: Office of Civil Rights (OCR)

Rules effective August 14, 2020

70% Procedures/20% Policy/10% “other” - ATIXA

Definition of Sexual Harassment• Expressly includes (“The Big 5”)• Quid pro quo sexual harassment • Sexual assault • Dating violence • Domestic violence • Stalking

• Retaliation • against any person involved in an investigation or

complaint process

Response Obligations• Four Elements:

• A “recipient” [institution] with• Actual knowledge of • Sexual harassment• In an education program or activity of the recipient• Against a person in the United States

MUST RESPOND in a manner that is

NOT deliberately indifferent

Limited Jurisdiction• Incident occurred in the United States• Institution must have control of the “harasser” and the

context of the harassment• Conduct must occur within the context of the “education

program or activity” • Complainant is a member or seeking to be a member of

the institution• Expands off-campus jurisdiction to buildings and

property owned or controlled by recognized student organizations

Jurisdiction • Conduct severe AND pervasive AND objectively

offensive

• Unwelcome conduct on the basis of another protected class (e.g., race, religion)• Keep in separate Equal Opportunity and Equal Opportunity

Grievance Procedures policies

• Study Abroad? Not Subject to a formal complaint?• Student Context: Code of Student Conduct• Employment Context: EO Grievance Procedures

“Mandatory Reporter”

• Mandatory Reporter: An employee who is obligated by policy to share knowledge, notice, and/or reports of sexual harassment and/or retaliation with a Title IX Coordinator

• Mandatory Reporters must report to Title IX.• TIX cannot act on what a mandatory reporter knows if

the MR doesn’t report or share.

Providing Notice• Actual “notice” of a formal complaint must be submitted

to initiate a grievance process• No longer an institution “knew” or “should have known”

• Actual notice = written, signed complaint of sexual harassment to a TIX Co-Coordinator or a campus official who has authority to implement corrective measures (“Official with Authority”)

• Formal complaints required even for informal resolutions

• All notices requires TIX to implement supportive measures

Response Obligations • To a Report:• Offer supportive measures

• Used to be called Interim Measures

• Explain formal complaint process

• To a Formal Complaint:• Investigation

• Live hearing OR

• Informal Resolution

Formal Complaint• A document signed by the complainant or by the

Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient [institution] investigate the allegation of sexual harassment.

• At the time of the filing of a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the institution with which the formal complaint is filed.

Mandatory Dismissal• Schools must dismiss the complaint if allegations do not

meet the Title IX definition of sexual harassment or fall within jurisdiction

• Dismissal of a complaint as a Title IX complaint does not preclude action under other college policies

• Allegations of discrimination on a protected class (of race, color, national origin, age, physical or mental disability, marital status, gender identity, sexual orientation, creed, religion, or sex that does not meet the definition of Title IX discrimination)• EO Grievance Procedures: Employment-related discrimination• Code of Student Conduct: Student conduct-related discrimination

Emergency Removal• Institutions may remove a student from an education

program or activity if the institution conducts an individualized safety and risk analysis• Occurs in consultation with Carroll’s CARE Team• A Violence Risk Assessment (VRA) referred to an

“assessor”• Independent of Title IX process

Evidentiary Standard• Institutions may use either the “preponderance of the

evidence” standard or the “clear and convincing” standard

• Institutions must apply the same standard of evidence to all Title IX complaints against employees and students

• Carroll’s interim policies maintains the “preponderance of the evidence” standard

Right to an Advisor• Parties have an opportunity to be

accompanied to any meeting or proceeding by the advisor of their choice, who may be an attorney

Informal Resolution• As an alternative to a live hearing• An informal resolution process is allowed, except

for allegations when an employee harassed a student• Both parties must agree to informal resolution• Some situations not appropriate for an informal

resolution• Either party may withdraw from the informal

resolution process and resume the grievance(hearing) process at any time

Live Hearing• For colleges and universities, institution’s grievance procedures must

provide for a live hearing. • Live hearings must provide for cross examination• Cross examination at the live hearing must be conducted “directly,

orally, and in real time” by the party’s advisor of choice.• If a party does not have an advisor present at the live hearing,• The institution must provide an advisor of the institution’s choice to

conduct cross-examination on behalf of that party.• Under the regulations, the Title IX Coordinator can be an investigator,

but cannot be the decision maker or appellate officer• Carroll’s interim policies remove the Title IX Coordinator from

being an investigator• The regulations heavily prescribe the hearing process to include

cross-examination.

Cross-examination in a hearing• Cross examination of witnesses must be allowed.• Cross examinations must be conducted by an advisor (who may be an

attorney), and never by the party.• If any party does not have an advisor, the institution must provide

one – free of charge to the parties.• The role of the decision-maker in the hearing is heavily prescribed in

the regulations to include rules on questions relating to:• Credibility• Complainant’s prior sexual behavior or sexual predisposition

(“rape shield”) • Irrelevant questions

Appeals• Appeals are limited to the following grounds:

• Procedural irregularity that affected the outcome of the matter;• New evidence that was not reasonably available at the time the determination

regarding responsibility or dismissal was made, that could affect the outcome of the matter; and

• A Title IX Co-Coordinator, Investigator(s), or Decision-maker had a conflict of interest or bias for or against Complainants or Respondents generally or the specific Complainant or Respondent that affected the outcome of the matter.

• Written decision by Appeal Decision-maker with no other role in the investigation or resolution matter

• Appeal decision is final

Policy Revision• Two Title IX Co-Coordinators will now share the

responsibility of Title IX compliance:

• Student Respondents: Dean of Students & Retention;

• Employee Respondent: Director of Human Resources

Preliminary Interim Policies• Four Interim Policies• Interim Title IX Policy• Interim Title IX Grievance Procedures• Interim Equal Opportunity Policy• Interim Equal Opportunity Grievance Procedures

• Presented to the Executive Committee of the Board of Trustees 08/13/20• Resolution: Preliminary Interim Policies: The policies will

be vetted through the appropriate shared governance processes with campus stakeholders and amendments may be forthcoming during the 2020/2021 academic year.

Post-August 14 • Conduct training for “Mandatory Reporters” • Faculty, staff, administrators

• Identify “Pool Members”• Investigators• Advisors?

• Schedule training of identified internal roles• Title IX Coordinators (certification), Investigators, Advisors

• Engage stakeholders in vetting Title IX and Equal Opportunity policies• Sexual Assault Prevention Team• ASCC Sexual Assault Prevention Committee• Gender Studies Faculty• Faculty Assembly• Staff Advisory• Cabinet• Others?

Monitor Legal Landscape• Lawsuit activity• ACLU (Americans Civil Liberties Union)- on behalf of several advocacy

organizations for survivors of sexual assault and gender equity• New regs in and of themselves are discriminatory and “collectively create a separate

standard for sex discrimination” than the department’s standards for discrimination based on race and national origin

• ACE (American Council on Education), • New regs place undue financial and time burdens on colleges and universities

• National Women’s Law Center• New regs provide increased protections for those accused of sexual assault; hearings and

cross• New York State - Denied

• “inexplicable incongruity” between processes for sex discrimination claims and other types of disciplinary procedures in the new regs

• Motion by 18 attorneys general to block the regulations – Denied 8/12/20• The August 14 deadline will cause “immediate and “irreparable harm” to institutions

• “Most merit”: They are not an advocacy group. They are representatives on the sate level charged with overseeing education in their state.

Monitor Political Landscape• President Trump’s Secretary of Education, Betsy DeVos • Leadership to and support of 2020 Title IX regulations• Final approval authority

• Presumptive Democratic presidential nominee Joe Biden• Statements about 2020 Title IX Regulations

• New regs aim to “shame and silence survivors”

• Vows to put a “quick end” to the new regulations -f he becomes next president

Questions?Renee McMahonTitle IX Co-Coordinator