TITLE IX TODAY SUBSCRIBER E-NEWSLETTER
VOLUME 2, ISSUE 5  I  AUGUST 2016
IN THIS ISSUE
THE LEAD
Offer access to disability accommodations in your processes, and as part of interim measures and remedies when appropriate. 

FROM THE FIELD
Prasad v. Cornell University serves as a reminder of the importance of treating both reporting and responding parties equitably at every step of your process. 

COMPLIANCE CORNER
The presence of mental health concerns can make getting to the bottom of things even more challenging than usual for Title IX Investigators.

PROFESSIONAL PERSPECTIVE
Gentry McCreary, the CEO and Managing Partner of Dyad Strategies and an Affiliated Consultant with The NCHERM Group, discusses the intricacies of Title IX work when fraternities and sororities are involved in reports.

COORDINATOR'S CORNER
Jacqueline Anchondo, the Title IX Coordinator at Wellesley College, offers advice for cultivating key relationships. 
FULL ISSUE: 
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FROM THE WEB: RECENT NEWS HIGHLIGHTS
THE HUFFINGTON POST: "There Are Far More Title IX Investigations Of Colleges Than Most People Know."   Go .

"Colleges Are Likely Underreporting Sexual Assaults, Senators Warn." Go

U.S. DEPT. OF EDUCATION:  "Office for Civil Rights Reaches Settlement With Dorchester County School District Two In South Carolina Over Transgender Discrimination. Go .

"Virginia's Hampton City Schools, U.S. Education Department, Settle Case Of Retaliation Against Mom Who Advocated For Daughter."  Go

REUTERS: "University of Tennessee settles sex assault suit for almost $2.5 million."  Go

THE WASHINGTON POST: "These colleges have the most reports of rape."  Go .

"Another 10 states sue Obama administration over bathroom guidance for transgender students." Go

THE ATLANTIC: "The Controversial Reason Some Religious Colleges Forgo Federal Funding ."  Go .
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E-EXCLUSIVE
PULSE ON OCR
OCR concludes investigation of Occidental College
By Nedda Black, J.D.
ABOUT THE AUTHOR
Nedda Black, J.D., LMSW is an Attorney in California whose practice focuses almost exclusively on higher education, with particular emphasis on Title IX, including compliance and investigations. She is also an Associate Attorney with The NCHERM Group, LLC.  To book a consultation with her, contact Ryan@ncherm.org
The Office for Civil Rights concluded its investigation into Occidental College, which was first launched in May 2013, when more than three dozen students, alumni, and faculty members claimed that the school was being lax with its disciplinary measures for sexual assault and that activists were experiencing retaliation. Administrators who were named in the report had received "no confidence" votes by the faculty immediately thereafter. The investigation involved a total of 49 allegations of sexual harassment and assault that were filed formally and informally. However, because OCR investigators were unable to obtain the consent of many reports, the investigators were, in part, limited to OCR records and were not able to conduct a full inquiry into certain cases, which normally includes significant amounts of oral and documentary evidence. Notably, many of the reporters whose cases were implicated in the OCR investigation had reached a settlement with the school towards the end of 2013.

The resolution letter ( available here) and resolution agreement ( available here) describe the actions taken by OCR in its investigation and the future actions to which Occidental has committed to ensure compliance with Title IX. Overall, OCR did not find Occidental's policies, procedures, and practices to be in violation of Title IX. A few cases in 2012-13 took too long to resolve, but that did not result in inequity to the parties, nor did it create a hostile environment.

Specifically, OCR found that:
  • All parties were provided an opportunity to present evidence from relevant witnesses and other sources.
  • When reports were informally resolved, the college met with reporting parties to discuss the allegations and concerns and provide them with an opportunity to provide evidence and witnesses. The college also documented those steps and any follow-up.
  • Reporting parties were provided information about all report-filing options, formal and informal.
  • The preponderance-of-the-evidence standard was consistently applied.
  • All parties were accorded equal rights and treatment in the process.
  • All policy definitions that were applied were adequate.
  • Reporting parties' past relationships were not considered in the investigative process.
  • Interim measures were provided to reporting parties as appropriate.
  • Steps were taken to ensure the protection of both reporting and responding parties against retaliation.
  • The college did not attempt to mediate formal or informal resolution of sexual assault complaints.
  • Notice was provided to reporting parties of their right to simultaneously proceed with a criminal investigation.
  • Documentation was maintained of all reports.
  • Annual mandatory training was provided to staff responsible for implementation of the procedures.
  • Conflict-of-interest concerns and/or concerns of bias were addressed.
  • Outside investigators and hearing adjudicators were hired to help ensure impartiality.
  • All reports in which the reporting party elected to go forward were investigated.
  • The college went forward with an investigation even when the reporting party did not desire it (e.g., when the parent lodged the report, or where the reporting party changed his/her mind), when the report implicated the safety of students and members of the college community.
  • The college's investigators consistently interviewed the reporter, respondent, and all relevant witnesses, and maintained comprehensive notes of the interviews.
  • When multiple sexual assaults were alleged by the same respondent, and Occidental had timely knowledge of the other incident(s), the school was found to have appropriately taken the multiple incidents into account when determining sanctions.
  • When a report involved off-campus conduct, the college provided resources to the reporting party and contacted the other institution.
  • When reports were received that a respondent who had been sanctioned (via a letter of reprimand, reassignment, and training) was continuing to sexually harass student-athletes, the school was found to have acted as soon as it had knowledge of the recurrence. Occidental had also surveyed the athletes and received no reports of sexual misconduct.
  • When tension existed in the campus atmosphere, OCR found no direct or indirect expression of negativity towards reporting parties on the part of the college's administration. Instead, OCR found the tension to be the result of "policy disagreements."
  • When there were concerns of bias on the part of an investigator, Occidental promptly replaced the investigator.
  • When the college could provide a legitimate, non-retaliatory reason for particular actions that were reported as retaliatory, OCR did not find retaliation by the college. However, concerns were raised for OCR about whether Occidental staff understand the definition of "protected activity" and whether they understand that their actions can impact the level of comfort students feel in advocating for Title IX protections.
 
Problems found:
OCR found that Occidental met its timeframe in 12 out of the 22 adjudicated cases reviewed. In three of the 22 cases, Occidental completed the process in 65-75 days. In the remaining cases, the deadline was missed by a significant margin. Occidental cited as its reason for this that the cases were especially complex, that the filing dates were close to the end of the school year, and that difficulty was experienced in coordinating schedules of relevant staff and students. Where the delays were the result of problems that could have been anticipated, such as staff vacancies and the unavailability of hearing officers, OCR found a violation. OCR reasoned that the responsibilities of those who are unavailable should have been reassigned. When the delays could not be anticipated (e.g., a respondent was out of the country for health reasons or the reporting party was a respondent in a prior case and would not cooperate or be interviewed), OCR was more forgiving, based on the reasoning that the college had been diligent in its efforts.

OCR was also critical of the times when the college failed to keep the parties apprised of the progress of the adjudication process. In addition, OCR was critical of the campus climate, which showed a significantly larger number of students on campus believe they were sexually assaulted than are reporting it.

Sanctioning:
OCR reviewed 16 cases in which the respondent was found responsible for any type of sexual misconduct, including non-consensual touching or sex. While the complaint to OCR alleged that when respondents appealed their sanctions, the sanctions were reduced without basis (nine of the 16 appealed), in seven of the nine appeals, the sanction remained unchanged. 

Moreover, in the two appeals in which the sanctions were reduced, the school notified the reporting party and allowed that party an opportunity to provide input. In one of those two cases, the appeal was based on a procedural error, such that the past sexual history of the respondent was used against him, even though it was unrelated to sexual harassment or assault. The hearing panel upheld the finding of responsibility for non-consensual sexual intercourse, but not for sexual assault. This resulted in a modification of the sanction to two years' suspension and the educational remedy of a reflection paper. In the other appeal, the respondent argued that his level of intoxication rendered him unable to judge the incapacity of the complainant. He also objected to his participation in the entire hearing having been limited to Skype, which prevented him from confronting the panelists and witnesses. The sanctions against him were reduced "in the interest of justice." However, the community service and educational remedies remained in place.

In both appeals, OCR noted that: "[T]he evidence showed that the college was attempting to balance the due process rights of the respondent with the rights of the complainant; the complainant was notified and given opportunity to provide input. The modified sanctions were still within college guidelines." OCR reiterated that sanctions must be "reasonably calculated to prevent. . . recurrence" of the conduct, and that they must be consistent with the school's stated guidelines. Put simply, OCR did not find a basis for the claim that the appeals process "resulted in unwarranted reductions in sanctions."

Resolution:
Occidental agreed to enter into a resolution providing for increased training of staff, annual climate surveys, and monitoring by OCR related to timeliness and effectiveness in the resolution of complaints for the next three years.

Contact the Editor: 
Would you like to submit an article for publication in Title IX Today? If so, contact Editor Cynthia Gomez at cynthia@atixa.org.