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title IX

When Civil Liberties Collide With Civil Rights
Posted by On Wednesday, October 14, 2015

The First Amendment protects the free exchange of ideas in public schools at every level of education, and Title IX protects a student’s right to learn in a hostile-free environment at all federally-funded schools. When Title IX collides with the First Amendment, it requires schools “to mediate the tension created by the collision of rights.”

One former college administrator framed the issue this way: “Academic freedom is about education. When hostile behavior gets in the way of the educational process, academic freedom must give way to equal opportunity.”

In this post, we’ll explore the difficult balancing act required to protect these two fundamental values in an educational environment. School policies play an important role in these cases. As we’ll see, legally sound sexual harassment policies are critical to mediating this tension and avoiding lawsuits.

OCR and SCOTUS on Title IX and Free Speech

When Title IX complaints involve First Amendment issues they enter the realm of academic freedom, which the U.S. Supreme Court (SCOTUS) has deemed a matter of national interest. In two landmark decisions, the SCOTUS ruled that state laws violated the First Amendment because they prohibited teaching any subject except in English [Meyer v. State of Nebraska (1923) 262 U.S. 390], and required professors of public universities to sign a certificate that they were not Communists [Keyishian v. Board of Regents (1967) 385 U.S. 589].

In Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 511), the SCOTUS famously said that students in the public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker at 506). Since no substantial disruption of school activities was reasonably expected or actually occurred, adopting a school policy to prohibit students from wearing symbolic black armbands to protest the Vietnam War violated the students’ First Amendment rights.

However, the SCOTUS also concluded that high school educators did not violate students’ First Amendment rights when they refused to publish the students’ articles in the school newspaper—one describing students’ experiences with pregnancy and another discussing the impact that parents getting divorced has on students—based on “legitimate pedagogical concerns” [Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260].

In 1992, U.S. Supreme Court Justice Scalia explained that government restrictions on speech are not absolutely prohibited. And he noted that sexually derogatory “fighting words” in the workplace are not protected by the First Amendment:

Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices. [citations omitted] Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. [RAV v. City of St. Paul (1992) 505 U.S. 377, 389-390]

In 2003, the Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter to confirm that “There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment.” In other words, Title IX prohibits harassment that is serious enough to limit or deny a student’s educational opportunities, not speech that is protected under the First Amendment.

In its 1997 Sexual Harassment Guidance, the OCR describes the balance between a school’s Title IX obligations and the protection of academic freedom, which does not involve bright lines:

Overall, the Guidance illustrates that in addressing allegations of sexual harassment, the judgment and common sense of teachers and school administrators are important elements of a response that meets the requirements of Title IX . . . the resolution of cases involving potential First Amendment issues is highly fact-and context-dependent. Thus, hard and fast rules are not appropriate.

Since schools must address these issues on a case-by-case basis, next we’ll look at faculty and student conduct to illustrate some of the factors that help schools determine when civil liberties must give way to civil rights.

Unpopular and Offensive Content

A recent case made headlines when Northwestern Professor Laura Kipnis complained about her institution’s sexual harassment policies and found herself in the middle of what she called “My Title IX Inquisition.” Two students had filed a Title IX complaint for retaliation based on Professor Kipnis’s essay, “Sexual Paranoia Strikes Academe,” in which she wrote that the new sexual harassment policies “aren’t just a striking abridgment of everyone’s freedom, they’re also intellectually embarrassing. Sexual paranoia reigns; students are trauma cases waiting to happen.”

After an investigation, Northwestern found Professor Kipnis had not violated Title IX. As pointed out by Erin Buzuvis of the Title IX Blog, a Title IX violation requires severe or pervasive conduct that “would have to rise to the level of retaliatory harassment.” Additionally, Kipnis wrote about a matter of public concern. Without more, unpopular and offensive content about a matter of public concern does not violate Title IX.

In another case involving allegations of faculty-on-student harassment, Professor Silva used this example to gain his students’ attention: “Belly dancing is like jello on a plate with a vibrator under the plate.” Professor Silva said he was illustrating how to define concepts in a technical report by using a general classification and a simple metaphor. He was suspended from teaching a technical writing class.

However, the court found that Professor Silva was disciplined “simply because six adult students found his choice of words to be outrageous,” even though his example was used for a valid educational objective and was part of a college class lecture, and these were adult college students. Thus, the court concluded that using the school’s sexual harassment policy to discipline Silva’s classroom speech violated the First Amendment [Silva v. University of New Hampshire (USDC NH 1994) 888 F.Supp. 293].

A federal court found the definition of Temple University’s sexual harassment policy too broad because harassment was not qualified with a severe or pervasive requirement. Therefore, it could prohibit speech protected by the First Amendment [DeJohn v. Temple University (3d Cir. 2008) 537 F.3d 301]. The policy definition also prohibited “gender-motivated” conduct, which focused on the actor’s intent rather than the actual effect of creating a hostile environment that interferes with a person’s educational opportunities.

Another federal court rejected a student’s claim that Oakland University’s conduct code was too broad because the court concluded that the student did not engage in constitutionally-protected speech. The adult male student wrote “lascivious entries” in a Daybook assignment, expressing lust for his female English professor, which the court found this was not “pure speech,” as in Tinker. Nor was the student expressing his views on matters of public concern. The court concluded that “speech protected in other settings is not necessarily protected when made in response to a classroom assignment and when directed at one’s professor” [Corlett v. Oakland University (USDC ED MI 2013) no. 13-11145].

In summary, legally sound sexual harassment policies define the prohibited conduct consistent with the First Amendment and OCR’s sexual harassment guidance. The cases also provide these factors to help determine if a professor’s statements were protected speech, including: (1) the age and sophistication of the students, (2) the relationship between the teaching method and a valid educational objective, and (3) the context and manner of presentation.
And, finally, OCR also advises schools to seize a teachable moment:

[W]hile the First Amendment may prohibit a school from restricting the right of students to express opinions about one sex that may be considered derogatory, the school can take steps to denounce those opinions and ensure that competing views are heard.

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Are Climate Surveys Part of Title IX/Clery Act Compliance?
Posted by On Wednesday, September 9, 2015

On April 29, 2014, the White House Task Force issued its “Not Alone” report with an overview of how to plan and conduct a campus sexual assault climate survey, as well as a sample survey based on best practices. The report urges “schools to show they’re serious about the problem by conducting the survey next year.”

In a May 2015 article, “Climate Surveys Are Coming,” readers were told, “The task force’s suggestion that schools conduct climate surveys is one of several signals that surveys soon will be required as part of a Title IX/Clery Act compliance program.”

On the same day that the White House report came out, the Department of Education’s Office for Civil Rights issued the guidance document, “Questions & Answers on Title IX and Sexual Violence,” which listed conducting climate surveys as one of the ways to “limit the effects of the alleged sexual violence and prevent its recurrence,” if a victim requests confidentiality and does not want formal action taken against the alleged perpetrator.

Other signals that campus climate surveys soon may be mandated include OCR agreements resulting from Title IX investigations and compliance reviews that require schools to conduct surveys, including: 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, and Rockford University.

Instead of waiting for federal laws or Title IX guidance that mandate climate surveys, some states have already enacted laws requiring them:

  • Maryland House Bill 571 requires institutions of higher education to “DEVELOP AN APPROPRIATE SEXUAL ASSAULT CAMPUS CLIMATE SURVEY, USING NATIONALLY RECOGNIZED BEST PRACTICES FOR RESEARCH AND CLIMATE SURVEYS,” and submit to the Maryland Higher Education Commission on or before June 1, 2016 (and every two years thereafter), a report aggregating the data collected by the survey, including:
        1. Types of misconduct
        2. Outcome of each complaint
        3. Disciplinary actions taken by institutions
        4. Accommodations made to students
        5. Number of reports involving alleged nonstudent perpetrators
  • The New YorkEnough is Enough” law signed on July 7, 2015, requires all New York colleges and universities to conduct campus climate surveys at least every other year. The survey requirement goes into effect on July 7, 2016.
  • The State of Washington passed a new law (SSB 5518.SL), requiring state universities, the regional universities, The Evergreen State College, the community colleges, and the technical colleges to conduct a campus climate survey and report their findings to the governor and legislature by December 31, 2016.
  • Louisiana passed a new law (SB 255) which provides, “When funding is made available, each public postsecondary education institution shall administer an annual, anonymous sexual assault climate survey to its students.”
  • In addition, the Massachusetts legislature is considering Bill S. 650, which would create a task force to develop a sexual assault climate survey to be administered by colleges and universities selected by the task force.

Meanwhile, Boston University launched a student survey in March 2015 (see FAQs about BU’s survey) and, while not required by law, the University of California conducted a campus climate survey on its campuses in Spring 2013 (see results and FAQs). Previously, we’ve reported on published data from other climate surveys, what experts say, and how to get started.

With Congress back in session, the Campus Accountability and Safety Act may have gained some momentum from the July 29th hearing before the Senate Committee on Health, Education, Labor & Pensions. Testimony received at that hearing included strong support from the Association of American Universities for campus climate surveys, pointing out that it is important that schools directly or indirectly control survey administration so that it addresses the unique circumstances of individual campuses.

We will continue to watch this closely as the patchwork quilt of climate survey requirements continues to unfold. We will also be hosting a webinar on Tuesday, October 13th with Peter Novak from University of San Francisco and Jessica Ladd from Sexual Health Innovations about climate surveys and data.  Follow our twitter account @CampusClarity for the link to register as the date gets closer.

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Weekly Roundup
Posted by On Friday, August 21, 2015

In this week’s roundup, confusion and guidance around confidentiality and the University of Texas system launches a study of campus sexual assault across all 13 of its campues.

Department of Education Seeks Input on Protecting Student’s Medical Records

On Tuesday, August 18th, The Department of Education’s (ED) Chief Privacy Officer, Kathleen Styles, requested input from the higher education community on protecting student medical records. The request, which was published on “Homeroom,” the ED’s official blog, accompanied a draft Dear Colleague Letter (DCL) addressing an exception under FERPA that allows a school to access a student’s medical records without consent if there is litigation between the student and the school.

The draft guidance follows a controversial incident earlier this year: after a student sued her university for allegedly mishandling her report of being raped, the university gave her therapy records to its attorneys to help defend itself against her lawsuit. One commentator argued the university’s decision — and the FERPA exception that allowed them to make it — left students “stuck between unaffordable therapy in a safe space and free therapy provided by an institution they are unsure they can trust.” The draft DCL offers guidance for these situations,

…without a court order or written consent, institutions that are involved in litigation with a student should not share student medical records with the institution’s attorneys or courts unless the litigation in question relates directly to the medical treatment itself or the payment for that treatment, and even then disclose only those records that are relevant and necessary to the litigation.

Public input is welcomed until October 2nd, and anyone interested can email comments to FERPA.Comments@ed.gov.

Controversial & Confidential Advisers

What’s controversial about confidential advisers? According to some experts, advocates employed by a college may have a conflict of interest when counseling alleged victims, rendering them unable to give students unbiased support. And without the protection of a legal privilege, advisers could be subpoenaed as part of a criminal investigation or by lawyers of accused students to disclose their communications with the alleged victim. Or, when helping a student move to a new dorm, information could be given to an employee who is required to report it to the Title IX coordinator. United Educators’ general counsel says simply hiring an adviser for every campus “is likely to cause more confusion and conflicts.”

However, as the White House Task Force Report pointed out, victims and survivors of sexual violence are more likely to seek help, rather than stay silent, if they have a place to go for confidential advice and support. The University of California has at least one adviser on each of its ten campuses. In fact, the UC Santa Barbara campus has five staff members to support victims through a campus or criminal investigation, or accommodations in academic and living situations, and the number of students seeking services from its confidential-advising program tripled after they increased the number of advisers.

California’s “Yes Means Yes” law requires campuses to have a confidential advising office for survivors. New York’s “Enough is Enough” law and the Campus Accountability and Safety Act now pending in the U.S. Senate both require confidential advisers on every college campus. Given the positive impact that a confidential adviser has on survivor reporting and recovery, it is likely we will see legislative action to protect advocate confidentiality.

Sexual Assault Climate Assessment at University of Texas

The University of Texas (UT) is undertaking a $1.7 million study of campus sexual assault across all 13 of its campuses.  Led by William McRaven, the chancellor of the UT system, the project is expected to take multiple years and will include an online student questionnaire, faculty and staff focus groups, and longitudinal studies of student experiences. This study is one of many sexual assault Campus Climate Survey projects sweeping the nation’s higher education institutions.

McRaven, who has been in his current role since January, is comparing his experience working with UT to his previous extensive experience with the military. McRaven is a retired four-star Navy admiral and a long-time Navy SEAL.  He is most known for his involvement in the operation that resulted in the death of Osama bin Laden in 2011. While in the Navy, McRaven says that he knew sexual assault was a problem, but until he conducted a survey of personnel, the extent and breadth of the problem were unknown. “Frankly, I was stunned by the results,” he said. “The problem was a lot more entrenched, and a lot broader, than I thought it was.”

This experience has helped him realize that “I don’t have enough data just yet” to understand how big the sexual assault problem is in the UT system. This project will happen in conjunction with the UT-Austin campus taking part in the AAU survey, for which aggregate results are expected to be published this Fall.

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Weekly Roundup
Posted by On Friday, June 12, 2015

A new survey emphasizes the importance of interactive training, an in-depth examination of Title IX as it applies to intimate partner violence, and a look at the human toll of lengthy OCR investigations.

New Study Illustrates the Need for Interactive Training

It’s well-known that anti-sexual violence training is not just required by law but a crucial aspect of campus prevention efforts. However, it’s important to keep in mind that not all training is equally effective. A new study from the University of New Hampshire’s Prevention Innovations Research Center demonstrates that students asked to interact during prevention training—in this case by taking part in a 20-minute conversation about the material they had just covered—were more likely to retain and process information about the school’s resources and policies. Another group of students was read the policies but did not discuss them afterwards, a third group was told they could watch an optional video in which the policies were read aloud, and a fourth group, used as a control, received no education. Students who were read the policies aloud but did not discuss them later showed improved learning, though not as good as that shown by students whose training included an interactive element. Over 70% of students provided with optional video opted not to watch it, and showed no greater improvement than the control group that received no training.

Domestic Violence, Colleges, and Title IX

As we’ve discussed in this space in the past, many activists and experts expect (and hope) that the enormous amount of attention currently directed at sexual assault on campus, and school’s obligation to address it under Title IX, will soon expand to include an equally pressing issue—intimate partner violence at colleges and universities. This article from BuzzFeed delves into the issue more deeply, pointing out that college-aged women are more likely than any other age group to experience intimate partner violence, talking to young women whose educations were disrupted, diminished, and in some cases ended by the trauma they experienced as victim/survivors of domestic violence, examining the legal reasoning behind a school’s Title IX obligation to address intimate partner violence, and taking a look at what schools could do to improve their support for students who have experienced violence at the hands of an intimate partner.

Long OCR Investigations Take a Toll on Complainants

Another story we’ve been following is the increasing length of OCR investigations. This piece from US News puts a human face on the many problems associated with an investigation that takes years to complete, profiling complainants whose cases triggered investigations that may have brought sweeping change to their school’s policies—but only long after they themselves had graduated. As Wendy Murphy, an advocate, attorney, and adjunct professor of sexual violence law, says in the article, “You can’t fix someone’s hostile education environment if they’ve graduated by the time you announce there was a problem.” The article also delves into the reasons for the lengthy investigations, which include skyrocketing rates of complaints, a badly understaffed OCR, and a new (widely heralded) approach to investigations, which takes the most macroscopic look at a school’s culture as opposed to focusing narrowly on the case in question.

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How the HALT Act would Transform Title IX Enforcement
Posted by On Saturday, June 6, 2015

Last summer we wrote about the HALT Act, Hold Accountable and Lend Transparency on Campus Sexual Violence Act. The bill was introduced into the House by Representatives Jackie Speier and Patrick Meehan. According to Congresswoman Speier’s website, the HALT Act will significantly expand the federal government’s ability to hold colleges and universities accountable if they fail to protect their students’ civil rights by:

(1) requiring the Department of Education to issue penalties for noncompliance with civil rights requirements under its authority, including Title IX;
(2) increasing penalties for violating the Clery Act from $35,000 to $100,000;
(3) creating a private right of action for students harmed by institutions that fail to meet campus safety requirements;
(4) instituting biennial climate surveys;
(5) requiring greater transparency and public disclosure of a list of institutions under investigation, the sanctions (if any) or findings issued pursuant to such investigations, and copies of all program reviews and resolution agreements entered into between higher education institutions and the Education and Justice Departments under Title IX and the Clery Act;
(6) increasing funding for Title IX and Clery investigators by $5 million;
(7) expanding institutional requirements to notify and publicly post students’ legal rights and institutions’ obligations under Title IX; and
(8) creating an interagency task force to increase coordination between agencies and enhance investigations.

The HALT Act is similar to the CASA Act, the Campus Safety and Accountability Act, introduced last year in the Senate by Senators Claire McCaskill and Kirsten Gillibrand, which strengthens the enforcement of Clery Act and Title IX and would also require schools to provide an annual climate survey.

Contact us at 1-800-652-9546 to find out more about how we can help your institution comply with Title IX and how we can help you with climate surveys. Follow us to stay up-to-date on compliance news.

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Think About It Updates
Posted by On Thursday, May 28, 2015

 

Changes are coming to Think About It! We’ve made a number of additions and amendments in response to new research, updated regulations, and of course feedback from our users and clients. These changes will ensure the course is compliant with new laws and maintain our commitment to training built for and with our users. Many of the changes are small – minor revisions or tightening up the design – but some are more substantial. Below is a list and explanations of the major changes in our 2015 Think About It update. We have organized them into two broad categories: compliance updates and content updates.

Compliance Updates

A lot has changed in the four years since we started developing Think About It, including new regulations and laws at the state and federal levels. When the Campus SaVE Act passed in 2013, we added new content, and we regularly update the state laws in our courses. For the current update we implemented a more comprehensive set of changes based on the Department of Educations’s Title IX FAQ document and the final Campus SaVE Act regulations. Below are the major changes:

Understanding a survivor’s reactions – We added an interaction illustrating the effects of trauma on survivors of sexual assault. This addition was something we included in our seven month follow up course, “The Way Forward,” because we felt it was important to help students understand the science behind survivors’ sometimes counterintuitive response to trauma. However, the page also helps satisfy new guidance on student training requirements for Title IX compliance.

SurvivorReaction

Title IX – It is important that students understand the range of protections against sexual violence available to them. We added a new tabbed page explaining that Title IX prohibits sex discrimination and harassment as well as retaliation against someone who complains about or participates in sexual misconduct proceedings. In addition, the page provides contact information for the school’s Title IX office and the Department of Education’s Office for Civil Rights.

Conduct Proceedings – We replaced the old “Disciplinary Hearings” page with a new “Conduct Proceedings” page, based on new Title IX guidance and Campus SaVE Act regulations. The page provides detailed information about how to report sexual misconduct or find confidential resources, and a school’s required disciplinary procedures.

Analyzing Unwelcome Sexual Conduct – We added two new pages explaining what constitutes sexual harassment. These pages explain quid pro quo sexual harassment and how to analyze whether unwelcome sexual conduct creates a hostile environment.

Interim Measures – A new page called “Interim Measures” explains the range of protective measures that may be available for victims of sexual misconduct.

Retaliation Case Study – In order to help consolidate the new information we’ve included around sexual harassment, we added a new interaction that asks students to apply their knowledge of retaliation to a realistic scenario. The scenario also illustrates how Title IX protects students against retaliation.

RetaliationScenario

Resources – Students must have access to information about local and campus resources as well as reporting procedures at their school. We have changed the organization of the resources and created new documentation to better guide schools on what information to provide for inclusion in their courses.

Content Updates

WCAG 2.0 Accessibility – Accessibility is one of our clients’ highest priorities, so naturally it’s one of our highest priorities too. The 2015 version of Think About It is fully accessible HTML5 technology (WCAG 2.0 AA) and tablet supported.

Course Reorganization ­– Talking to clients and reading student feedback, we decided to reorder the course in a way that seemed more natural and helped the sections to reinforce each other. In the new course we’ve moved “Healthy Relationships” right after “Sex in College.” Placing them next to each other will help students see the connections between these important topics. The new course order is 1.) Prologue, 2.) Sex in College, 3.) Healthy Relationships, 4.) Partying Smart, 5.) Sexual Violence, 6.) Epilogue. We rewrote the section introductions and summaries in order to reflect this new order.

Prologue – In the prologue, we updated content about the prevalence of sexual violence against female college students and added information about sexual violence against male college students. The new information was drawn from the Bureau of Justice Statistics’ special report “Rape and Sexual Assault Victimization Among College-Age Females, 1995-2013.”

Pressure & Expectations – Think About It encourages students to think critically about the cultural and social pressures that influence their behaviors and attitudes. This kind of critical reflection helps students become more self-aware, empowering them to make safer, more informed decisions. We strengthened this approach by replacing “Elements of the Hook Up,” which was an informational page, with a new page that pushes students to reflect on the institutional, societal, and individual pressures that shape beliefs and attitudes around intimate behavior.

Alcohol and Identity – We replaced “Drinking and College Culture” with a new “Alcohol & Identity” page. The two pages are similar in purpose: both help students reflect on the cultural and social factors that influence their attitudes towards alcohol. Since individual schools’ cultures vary greatly, we expanded to focus to a broader set of issues while achieving the same learning objective.

Systemic Problems – As part of a comprehensive approach to sexual violence prevention, Think About It begins by addressing the college culture around intimacy. We include a video of interviews with students about college hook-up culture. The video confronts student misperceptions about how much their peers are hooking up as well as gender stereotypes, such as double standards. To better reach these goals, we shortened the video to focus its message and rewrote the feedback to the follow-up Insights Question.

Cyberstalking – Research and client feedback revealed the growing role of social media in stalking and bullying cases. To better inform students of how perpetrators use social media to stalk victims, we replaced the real stalking cases in Think About It with cyberstalking cases.

Relationship Violence – When students think about abusive relationships, many of them only think of physical abuse. But there are other kinds of abuse. To help students recognize the range of abusive behavior, we replaced the “Cycle of Abuse” page with a new page covering different types of “Relationship Violence.”

The Drug Deal – We heard from students and clients that they wanted to learn more about prescription drug abuse, which they perceived to be a growing problem on many campuses. In order to help address this request, we reworked the “Drug Deal” interaction to include more information on prescription drug abuse. We also included a few social norming questions, asking students about their peers’ substance use. We based these questions on data from national surveys. These questions will help dispel students’ misconceptions about drug abuse on their campuses.

Stages of Acquaintance Assault – We expanded content on responding to acquaintance assault to include information from Dr. Rebecca Campbell’s research on the neurobiology of many victims of sexual assault. We have also added a new page on the effects of trauma on survivors of sexual assault (see Compliance Updates).

Sources & Citations – We updated our sources and citations page to provide a more comprehensive list of the sources we consulted when building and updating the course and to direct interested students to resources for further research.

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Three Takeaways From the OCR’s Guidance Package
Posted by On Wednesday, April 29, 2015

Without much fanfare, the Department of Education’s Office for Civil Rights issued a “Guidance Package” on April 24, 2015, which includes a Dear Colleague Letter (DCL), a Dear Title IX Coordinator Letter, and a Title IX Resource Guide. The three takeaways from the OCR’s Guidance Package are: (1) all primary, secondary, and postsecondary schools must have a Title IX coordinator; (2) Title IX coordinators must be given adequate authority and training to meet their obligations; and (3) interfering with a Title IX coordinator’s efforts to do their job violates Title IX’s anti-retaliation provision.

The DCL is a seven-page reminder that “all school districts, colleges, and universities receiving Federal financial assistance must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Title IX . . ..” Another significant guidance document—Questions and Answers on Title IX and Sexual Violence, released in April of 2014 — had already pointed out that designating a Title IX coordinator is one of three key procedural requirements in the Title IX regulations. This latest DCL leaves no doubt that this is not a matter of simply adding a title to someone’s long list of job duties:

This position may not be left vacant; a recipient must have at least one person designated and actually serving as the Title IX coordinator at all times.

An OCR spokesperson said that many schools currently under investigation do not have a Title IX coordinator. For example, Brown University just hired its first Title IX coordinator this month. Apparently, the OCR is lighting a fire under schools that have not yet taken this step.

The DCL lays out the Title IX coordinator’s responsibilities and authority, emphasizing that it is a Title IX violation to interfere with the Title IX coordinator’s performance of their job responsibilities:

Title IX’s broad anti-retaliation provision protects Title IX coordinators from discrimination, intimidation, threats, and coercion for the purpose of interfering with the performance of their job responsibilities.

To establish a strong and visible role in the community for the Title IX coordinator, the DCL encourages schools to create a prominent link on its homepage to a dedicated webpage with the Title IX coordinator’s contact information, Title IX policies and grievance procedures, and other resources related to Title IX compliance and gender equity.

To keep informed of the laws, regulations, and OCR guidance on campus safety, the DCL recommends regular training for Title IX coordinators and all employees whose responsibilities are related to the school’s Title IX obligations.

Also included in the guidance package is a Letter to Title IX Coordinators with a Resource Guide, which covers Title IX basics, as well as the Title IX coordinator’s administrative duties and role in helping schools meet their Title IX obligations. The letter contains this warning: “To be an effective Title IX coordinator, you must have the full support of your institution.”

As Catherine Lhamon, assistant secretary for civil rights, said in the OCR’s press release, “A critical responsibility for schools under Title IX is to designate a well-qualified, well-trained Title IX coordinator and to give that coordinator the authority and support necessary to do the job.”

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Weekly Roundup
Posted by On Friday, April 17, 2015

This week we have an app that will streamline reporting on college campuses, a new book on a campus sexual assault case by the author of Into the Wild, and a diverse collection of viewpoints on how to achieve progress on preventing campus sexual assault.

New App Promises to Improve Reporting of Sexual Assaults

Three higher education institutions are expected to pilot a new system for reporting sexual assaults. Developed by Sexual Health Innovations, the system is called Callisto after a nymph from Greek mythology. The system offers students information about how to report a sexual assault to their college and local law enforcement agencies. If students choose to report, they can do so through Callisto. If they choose not to report, they can still record information about the assault through the system. Although the school will not be able to see this record without the student’s permission, the school will be able to see aggregate statistical information about users of the system.

Importantly, Callisto has an additional feature that helps schools identify repeat offenders. Students who create a record on Callisto but choose not to file a report with their institution, can opt into a matching feature, which will send the school the reporter’s name and the name of the alleged assailant if someone else files a report on Callisto involving the same assailant. Some commentators, however, expressed concern over the privacy issues and legal protections for the system’s users. As Laura Dunn, a lawyer by training and the founder of an advocacy group for Survivors of sexual assault, explained: “As a survivor and as an activist, I think this is amazing… as a lawyer, I am cautious.”

Bestselling Author to Release Book on Campus Rape

Next week, Jon Krakauer, author of the best sellers “Into Thin Air” and “Into the Wild,” is releasing a book on campus rape. Krakauer’s new book, “Missoula: Rape and the Justice System in a College Town,” discusses multiple sexual assault cases at the University of Montana (UM). UM was the subject of yearlong federal investigation into its handling of sexual assault complaints. Two years ago, UM entered into a Resolution Agreement with the Department of Education’s Office for Civil Rights and the Department of Justice. The Joint Letter of Findings called the Resolution Agreement with UM a “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” The Agreement provides information on important issues such as confidentiality, campus climate surveys, and standards of proof in campus adjudication processes. For the book, Krakauer relied on documentation of the investigations and adjudication of these incidents, as well as talks with psychologists about the effects of rape on survivors. According to the Wall Street Journal, “One takeaway from ‘Missoula’ is that every incident of alleged rape is different, and ambiguities abound. Mr. Krakauer provides no sweeping conclusions.”

9 Perspectives on What Will Signal Progress on Campus Sexual Assault

The Chronicle of Higher Education has collected diverse responses to the question, “what will signal progress on sexual assault at colleges and universities?” The viewpoints range from providing survivors with the tools they need to heal, to ensuring a fair process for everyone involved, to beginning prevention training before college. The contributors include lawyers, advocates, and administrators, including The President of the University of Montana. All of the pieces point to the important leadership role schools play in addressing this issue through training and strong policies and procedures around sexual violence. As Annie Clark and Andrea Pino, the co-founders of End Rape on Campus, suggest in their essay: “Change will come only when colleges lead it, rather than follow the efforts of the students who expect their guidance.”

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Weekly Roundup
Posted by On Friday, April 10, 2015

This week we have more on the growing list of school’s under investigation, data on what usually happens to those schools, and one of the possible consequences of increased scrutiny of colleges and universities.

The List of Schools Investigated for Title IX Grows to 106

The U.S Department of Education’s Office for Civil Rights (OCR) is currently investigating 106 colleges and universities for Title IX compliance related to the schools’ handling of sexual violence cases. This number has almost doubled since May last year, when the DOE first revealed the list of schools it was investigating. Catherine Lhamon, the Assistant Secretary for Civil Rights, explained last May that the OCR was releasing the list “to bring more transparency to our enforcement work and to foster better public awareness of civil rights.” She also clarified that being under investigation did not mean that the college or university “is violating or has violated the law.”

Four Charts Showing What Happens to Schools Accused of Discrimination

What happens to schools investigated by the Department of Education’s Office for Civil Rights? Based on nearly 9,000 complaints the OCR investigated over the last 11 years, these charts reveal the vast majority of Title IX cases were simply dismissed. Furthermore, no Title IX investigation resulted in “enforcement,” where the OCR would strip a school of federal funding. Instead schools enter into resolution agreements with the OCR first, obligating schools to take steps that meet the OCR’s Title IX compliance requirements. For example, it was reported last May that after “Tufts defiantly backed out of an agreement,” the OCR “warned that it could move to terminate Tufts’ federal funding if the university did not comply, a result so catastrophic that it virtually required Tufts to reach some understanding with the government.” Once Tufts’ president received “clarity” about the basis for OCR finding the university in violation of Title IX, Tufts agreed to change its policies on how to handle sexual assault cases.

The Tufts case supports commentators in the recent Bloomberg article, suggesting that the lack of enforcement demonstrates how the threat of losing federal funding forces schools into compliance: too much is at stake for schools to do anything but concede to the OCR’s requests. Other commentators, however, argue that the lack of enforcement exposes the OCR’s weakness and the lack of political will to punish schools for violating Title IX. It is worth noting, however, that the number of Title IX complaints rose fivefold between 2012 and 2013. The article attributes the spike to the OCR’s 2011 Dear Colleague Letter, which laid out a school’s responsibilities to respond to complaints of sexual harassment.

30 Fraternities Shut Down in Past Month

One way schools are responding to increased scrutiny by the OCR and in the media is by cracking down on misconduct. As we’ve been covering for a while now, fraternities in particular have felt the heat of school’s greater vigilance. As this Huffington Post article reports, since the beginning of March alone, thirty fraternities have been shut down by their school or their national headquarters. The incidents that prompted the closures cover a range of student conduct violations. According to the article, one fraternity used a stun gun to intimidate its pledges and another damaged 45 rooms at a ski resort. The article suggests that the Internet may also be partially responsible for the increased scrutiny, since it’s easier to “circulate ­­– and catch – examples of misbehavior.” The article ends, however, with a comment from Jason Laker, a professor at San Jose State University. Laker reminds us that some of fraternity members’ bad behavior may have roots in larger cultural constructs of masculinity.

 

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Weekly Roundup
Posted by On Friday, March 20, 2015

For this week’s roundup we have the results of a survey of college presidents and two upcoming events relevant to campus sexual assault.

The Majority of College Presidents Still Think Sexual Assault Isn’t an Issue for their Campus

Last year we reported on the results of an Inside Higher Ed survey of college and university presidents that revealed that while 71% of respondents agreed higher education as a whole needed to improve responses to sexual assault, a whopping 95% of them believed their own institutions had adequate responses to allegations of assault. This year’s results reveal similar attitudes. 78% of college presidents believed sexual assault was not prevalent on their own campus. Over 75% said their own institution did “a good job protecting women from sexual assault.” Just under a third thought “Sexual assault is prevalent at U.S. colleges and universities.”

Sexual Assault Awareness Month is Coming, Niagara Falls to Turn Teal

Sexual Assault Awareness Month is just a few weeks away, and while the month will be a chance for organizations of all sizes to do what they can to raise awareness about sexual assault, the Niagara Falls Illumination Board will be taking the opportunity to highlight the issue in spectacular fashion. On April 12 Niagara Falls will be illuminated teal, the color of Sexual Assault Awareness Month, on both the Canadian and American sides of the border. This year’s Sexual Assault Awareness Month will focus on campus sexual assault.

CampusClarity at NASPA

Last but not least, and as many of you are probably aware, this coming weekend is the 2015 NASPA Annual Conference in New Orleans. Like last year, we’ll be at the conference to learn, engage in conversation, and of course offer information about our own Campus SaVE Act and Title IX training. If you want to learn more, or just meet our team, come to booth 405 or our free cocktail event. If you do, you’ll have the chance to win a free iPad! Finally, if you know you want a demo at the show, feel free to schedule one in advance using this link.

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