Is the Department of Education about to get really, truly serious about Title IX enforcement? All the signs point to “Yes.” In the past few weeks we’ve seen a flurry of activity. On April 28, 2014, the U.S. Department of Education’s Office of Civil Rights (OCR) issued an unprecedented press release announcing that, because Tufts University had “revoked” its agreement to remedy Title IX violations, “OCR may move to initiate proceedings to terminate federal funding of Tufts or to enforce the agreement.”
A day later, the First Report of the White House Task Force to Protect Students From Sexual Assault and the OCR’s “significant guidance document” were both released. Two days after that, the OCR released a list of 55 colleges and universities that are currently under investigation for Title IX violations.
On May 9th, the OCR issued another press release that Tufts, faced with the possibility of becoming the first school to actually lose federal funding over Title IX violation, had taken “swift action to cure its breach.”
The resolution agreement between Tufts and the OCR requires the university to: “Provide regular and mandatory training on issues related to sexual assault and harassment and on the requirements of Title IX to all members of the university community – including students, faculty, administrators and other staff.”
In light of these dramatic recent developments, it makes sense now more than ever to ensure your institution is in compliance with Title IX. The summary below provides a checklist we put together from the OCR’s latest guidance document on employee and student training that will help schools untangle the latest Title IX requirements:
All employees who are likely to receive information about sexual harassment or sexual violence (we’ll refer to both as sexual misconduct) should be trained on a regular basis and the school should verify that the training is effective.
While there is no minimum time requirement for the training, the course needs to cover practical information on how to:
- prevent and identify sexual misconduct, including incidents involving same-sex violence and rape-tolerant attitudes
- recognize behavior or other warning signs of sexual misconduct
- respond appropriately to reports of sexual misconduct to avoid secondary trauma
- assist students who may have experienced sexual misconduct
- report sexual misconduct
- protect students’ confidentiality to the extent permissible
- provide contact information to students for: (1) reporting options (Title IX Coordinator, campus police, and local law enforcement), and (2) on- and off-campus victim resources (victim advocacy, housing assistance, academic support, counseling, disability services, health and mental health services, and legal assistance)
“Responsible employees” are those individuals who have actual or perceived authority to redress sexual misconduct. They are required to receive additional training on:
- the school’s sexual misconduct policies and procedures
- their duty to report sexual misconduct and consequences for failing to report
- procedures for responding to a student’s request for confidentiality
- the requirement to provide students with information about: (1) available confidential resources for victim advocacy, counseling, and other support services; (2) their right to file a Title IX complaint; and (3) the option of reporting to campus or local police
When responsible employees receive information about incidents of sexual misconduct they are required to report all relevant details (including names of the alleged perpetrator, complainant, and witnesses) about the incident to the Title IX Coordinator or other designated persons.
To protect a complainant’s confidentiality and encourage them to seek help, OCR does not require the following employees to report incidents of sexual misconduct: campus mental health counselors, pastoral counselors, social workers, psychologists, health center employees, or any other person with a professional license requiring confidentiality, and the people they supervise.
Employees who are involved in implementing the school’s grievance procedures
Employees who are involved in implementing the school’s grievance procedures (Title IX Coordinators, others who receive complaints, investigators, and adjudicators) must have either training or experience in handling complaints involving sexual misconduct and the school’s grievance procedures. The training these employees receive should cover:
- how to conduct an investigation, including how to interview complainants
- what conduct constitutes sexual misconduct
- the requirements for consent
- proper standard of review
- holding perpetrators accountable and possible sanctions
- remedial actions for perpetrators, complainants, and the campus community
- how to weigh witness credibility
- evaluating evidence in an impartial manner
- protecting the parties’ confidentiality
- the neurobiology of trauma, including sexual assault
- cultural awareness training in the context of sexual misconduct
In addition, employees involved in the investigative and hearing process should receive regular training to keep current on the school’s grievance procedures.
While this list may seem daunting, the good news is that many if not all of these requirements also satisfy employee training requirements in the Campus SaVE Act. We’ll give you a checklist for student Title IX training in an upcoming post so check back for more compliance help.