As schools plan for the next academic year, it’s an opportunity to look back at how Title IX policies, procedures, and prevention programs can be improved for effectiveness and Title IX compliance. To help guide this effort, it’s instructive to look at the Department of Education’s Office for Civil Rights’ resolution agreement with the University of Virginia, which is a comprehensive real case study of Title IX compliance. While the OCR found that UVA’s sexual assault and sexual misconduct policies violated Title IX, UVA’s revised policies and procedures for investigating and resolving reports of sexual harassment and violence have the OCR’s stamp of approval.
From the OCR’s UVA investigation and guidance documents, we’ve compiled the following list of essential steps to achieving Title IX compliance and increasing campus safety.
Title IX Coordinator
In April 2015, the OCR issued a Dear Colleague Letter reminding schools that receive federal financial assistance to designate at least one employee who has the time, training, and authority to address complaints, as well as coordinate and oversee the school’s efforts to comply with Title IX and related laws. The DCL states that this Title IX coordinator should report directly to “senior leadership,” such as the college or university president, to avoid any conflicts of interest. Schools should not designate persons with other job duties that may interfere with their ability to fair and impartial. Another takeaway from the DCL is that interfering with a Title IX coordinator’s efforts to do their job violates Title IX’s anti-retaliation provision.
A Letter to Title IX Coordinators was also issued with a Resource Guide explaining their responsibilities and authority. These documents emphasize the importance of each school having a dedicated person who has the necessary training to coordinate responses to all reports and complaints raising Title IX issues.
Title IX Policies
The Resource Guide emphasizes that Title IX coordinators play an important role to ensure a nondiscriminatory environment. Specifically, the OCR recommends that Title IX coordinators should be involved in drafting and revising a school’s Title IX policies and grievance procedures to make sure they:
- Explain prohibited behavior and conduct proceedings in plain English
- Define prohibited behavior the same across all policies
- Encourage reporting
Additionally, policies and procedures should be made available in places where they are easily found, applied uniformly in all cases involving sexual/interpersonal harassment or violence against students, and reviewed at least annually, and sooner if laws change.
The White House Task Force’s Resource Guide and notalone.gov provide checklists and model definitions of prohibited conduct. In addition, the Association for Student Conduct Administration offers these recommendations:
- Define consent and incapacitation (intoxicated vs. incapacitated)
- State that students or the institution may initiate a complaint
- Do not place time limits on filing a complaint
- Encourage reporting by including an amnesty policy for conduct violations involving alcohol or drugs at or near the time of the incident
The OCR’s Q&A states that provisions for “adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and alleged perpetrator to present witnesses and evidence,” should be included in a school’s grievance procedures. And Title IX requires schools to “adopt and publish grievance procedures providing for the prompt and equitable resolution of student and employee sex discrimination complaints.” (OCR on Title IX and Sexual Violence, C-1)
A school’s resources and support, not Title IX, determine the most appropriate adjudication model to determine the facts of a case. The most common models are:
- Single investigator
- Administrative or panel hearing
- Hybrid of hearing and single investigator models
Appearance of Conflict of Interest
In the OCR’s UVA Letter of Finding, it found an “appearance of a conflict of interest” based on the multiple roles played by a key individual in the panel hearing process: “the same individual went from being tasked under the [Sexual Misconduct Policy] to ‘identify forms of support or immediate interventions’ for the complainant to being a neutral decision-maker, and then to possibly defending a decision of the [Sexual Misconduct Board] Panel on appeal.” UVA LOF, p. 15)
Since most of these cases involve “he said-she said” situations with alcohol or drug impairment, it is critical that decisions are made by persons who are impartial and trained in the complexities of sexual assault, where the effects of trauma can affect victims’ reactions and ability to recall details. The Association for Student Conduct Administration has put together a list of training topics for adjudicators and hearing board members. (See ASCA’s Student Conduct Administration & Title IX: Gold Standard Practices for Resolution of Allegations of Sexual Misconduct on College Campuses, Appendix A.)
It is interesting to note that the Commonwealth of Virginia is considering a system of resolving sexual assault cases outside of universities made up of impartial trained investigators, which was first proposed by John Banzhaf, a public interest law professor at George Washington University.
While OCR guidance and court orders don’t provide specific answers, they provide guidelines that allow flexibility to address misconduct in a way that reflects your student population and administrative resources, as long as the response is prompt and impartial.
Prompt and equitable
When evaluating policies and procedures, the OCR looks for these critical elements to meet the “prompt and equitable” standard for Title IX compliance:
- Notice to students and employees of the procedures, including where complaints may be filed;
- Application of the procedures to complaints alleging discrimination and harassment carried out by employees, other students, or third parties;
- Provision for adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and respondent to present witnesses and other evidence;
- Designated and reasonably prompt timeframes for the major stages of the complaint process;
- Written notice to both parties of the outcome of the complaint and any appeal; and
- Assurance that the recipient will take steps to prevent recurrence of any sex discrimination or harassment found to have occurred, and to correct its discriminatory effects on the complainant and others, if appropriate. (OCR’s UVA LOF.
Basically, if a school’s policies and procedures contain these Title IX elements they also satisfy due process requirements afforded to students attending public institutions, which require:
- Written notice of the allegations and nature of the evidence; and
- A fair opportunity to present the student’s position, explanations, and evidence.
We’ve previously written about due process requirements, including the differences between conduct proceedings vs. criminal trials, and the right to cross-examine witnesses. As pointed out in our post, the OCR’s position on allowing the accused to question adverse witnesses through the hearing officer – but not direct cross examination – does not violate constitutional due process.
Campus Climate Surveys
In order to inform these policies, procedures, and prevention programs each school should conduct an annual “climate assessment” to gather data from students about incidents of sexual harassment and violence, find ways to encourage reporting, and develop prevention strategies that meet the needs of your campus community. The primary goal of the AAU climate survey was to inform policies to prevent and respond to sexual assault and misconduct.
In addition to informing policies and creating effective prevention strategies, conducting campus climate surveys provides critical data for allocating resources, which we have written extensively about on this blog. And the OCR has required climate surveys in several resolution agreements: University of Virginia, Michigan State University, Ohio State University, University of Montana, Southern Methodist University, Lehigh University, Harvard Law School, Lyon College, Virginia Polytechnic Institute and State University, University of Dayton, Cedarville University, Glenville State College, Kentucky Wesleyan College, State University of New York, Rockford University.
Every college and university has a unique student population with its own culture and complexity. Our goal at CampusClarity is to provide useful information to help all schools reach a common goal: create policies, procedures, and prevention programs that eliminate sexual harassment on campus, off campus, and online.