TITLE IX TODAY SUBSCRIBER E-NEWSLETTER
VOLUME 2, ISSUE 7  I  OCTOBER 2016
IN THIS ISSUE
THE LEAD
Publisher Brett A. Sokolow explains how to avoid some common pitfalls of investigating sexual misconduct complaints. 

FROM THE FIELD
The recently decided case of   John Doe v. Columbia University serves as a reminder to ensure that all Title IX practices are gender-neutral.

COMPLIANCE CORNER
Understand how failing to attend to small details can add up to major compliance issues down the line. 

PROFESSIONAL PERSPECTIVE
Jason Laker, a Professor of Counselor Education at San Jose State University, an Affiliated Research Faculty Member in San Francisco State University's Center for Research and Education on Gender and Sexuality, and an Affiliated Consultant with The NCHERM Group, discusses his research on how students communicate sexual consent.

COORDINATOR'S CORNER
Title IX Coordinator Natasha Stephens from Wichita State University shares ideas for increasing Title IX awareness on campus.
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FROM THE WEB: RECENT NEWS HIGHLIGHTS
THE HUFFINGTON POST: "Judge Dispels The Myth Of The 'Perfect' Rape Victim In Powerful Verdict."   Go .

NPR:  "U.S. Judge Grants Nationwide Injunction Blocking White House Transgender Policy. Go .

INSIDE HIGHER ED: "Federal Interpretation - or Legislation?"
Go

"Judge Blocks UNC from Enforcing Bathroom Law." 
Go.

THINK PROGRESS: "The Department Of Education's Work On Sexual Assault Is Under Attack."
  Go.

COOK COUNTY RECORD: "Male student says University of Chicago's sexual assault policies created 'hostile environment.'"  Go

THE CHRONICLE:
"Federal Title IX investigations spike across country."  Go .

U.S. DEPT. OF EDUCATION:
"Maryland's Frostburg State University Found in Violation of Title IX, Reaches Agreement with U.S. Education Department to Address, Prevent Sexual Assault and Harassment."  Go .
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TIX/CIVIL RIGHTS INVESTIGATOR MENTORSHIP
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E-EXCLUSIVE
FOCUS ON OCR
37-page OCR letter details compliance issues at UNM
By Nedda Black, J.D., LMSW, Contributing Editor
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 Affiliated Consultant with The NCHERM Group and a  Contributing Editor of Title IX Today .
On April 22, 2016, the U.S. Department of Justice announced that the University of New Mexico was out of compliance with key aspects of Title IX. The Office for Civil Rights' findings are documented in a 37-page letter . The investigation was launched on Dec. 5, 2014, after several students complained about UNM's handling of their sexual assault reports. For anyone wanting to get a sense of how OCR responds when a school gets it wrong, the UNM report is a must-read. The highlights follow.
 
Sexual Harassment
  • The report put special emphasis on the elements of a "sexual harassment" analysis, noting that any sexual harassment "that is sufficiently serious to interfere with or limit a student's ability to participate in or benefit from the school's program (i.e., creates a hostile environment) is a form of sex discrimination prohibited by Title IX and Title IV." 
  • With regard to the analysis itself, OCR wrote: "To determine whether a hostile environment exists, the United States considers whether there was harassing conduct based on sex that was sufficiently serious (that is, severe, persistent, or pervasive) to deny or limit a student's ability to participate in or benefit from the school's program. The United States examines all the relevant circumstances from an objective and subjective perspective, including:
    1. The type of harassment (e.g., whether it was verbal or physical);
    2. The frequency and severity of the conduct;
    3. The age, sex, and relationship of the individuals involved (e.g., teacher-student or student-student);
    4. The setting and context in which the harassment occurred;
    5. Whether other incidents have occurred at the college or university; and
    6. Other relevant factors."
Finally, OCR noted: "The more severe the conduct , the less need there is to show a repetitive series of incidents to prove a hostile environment , particularly if the harassment is physical.  Indeed , a single instance of rape is sufficiently severe to create a hostile environment."
 
Evidence-Gathering
  • Providing the respondent with a written copy of complainants' specific allegations and giving them seven business days to provide a written response to the allegations is not an effective evidence-gathering procedure as a standard practice in lieu of interviewing, according to the DOJ. Soliciting witness statements prior to providing a written copy of other witness' statements is an important step in the evidence-gathering process. This could avoid, for example, situations where the response is constrained to, "I agree" or "I disagree," and is more likely to result in independent accounts with unique detail.
  • Communicating in writing with parties and witnesses in lieu of in-person interviews results in limited and unreliable information, and it does not allow for follow-up questions to resolve inconsistent or incomplete information, cutting into credibility assessments as well. 
  • Failing to pursue evidence that is raised by witnesses can undermine the effectiveness and reliability of an investigation, including text messages, social media evidence, recorded images, and additional witnesses.  
  • Parties must be provided an equal opportunity to present relevant witnesses and other evidence.  
Other Highlights
  • A school's response will be assessed according to how prompt, equitable, and effective it was, which is a very fact-based determination. Inappropriate or delayed responses on the part of the school may, in itself, have the effect of creating a hostile environment for a student.
  • Law enforcement investigations purport to determine whether a person violated the state's penal code; whereas, Title IX investigations purport to ensure a student's access to education is not limited or denied due to discrimination. While agreements (MOUs) are encouraged, the Title IX process should not be put on hold for that of law enforcement. 
  • Having multiple, overlapping, and often conflicting policies addressing the same terminology and processes is not a good idea. And if a school consolidates its policies into one, it should be clear that the others have been superseded and are no longer in effect. Otherwise, those who turn to the policies for guidance will have no way of knowing which policy's language prevails in the event of a conflict. Even slight differences in wording (or even punctuation) can have profound effects on the application of the policy to particular circumstances.
  • Education and training should be in-depth and not cursory. The content should reflect current research and align with best practices in the field. It should include evidence-based curricula, and practical experiences and skill development, so that those who leave the training are able to implement prevention strategies and answer questions about consent, reporting, and Title IX processes and procedures. It should also include information that would be deemed relevant and critical to the population, such as jurisdictional information would be to a student body that is heavily housed off-campus. The "myths and facts" approach to training is out; case examples are in.
  • When investigations are unduly long and/or investigators are not communicating with parties about the process, this causes unnecessary confusion, frustration, and stress on the part of everyone involved.
  • UNM received 115 complaints of sexual harassment/assault between May of 2014 and June of 2015. Of those, 35 resulted in investigations, only 13 of which were completed at the time of the OCR report. The investigations did not meet Title IX requirements, because they lacked in thoroughness and in effective credibility determinations.
  • Requiring an eye-witness, corroborating witness, tangible evidence, or an admission by the respondent of the offending behavior, including a lack of consent, in order to establish probable cause to continue with an investigation, rather than attempting to independently identify witnesses and obtain physical evidence, is not best practice, because doing so places the burden on reporting parties to prove their allegations prior to an investigation. 
  • Keeping adequate records of all allegations of sexual assault, and monitoring those records, is critical to being able recognize patterns in allegations.
  • Becoming aware of additional allegations during an investigation is no different than receiving a complaint, when it comes to the school's obligations to investigate under Title IX and determine whether the conduct was sufficiently serious as to limit or deny educational benefits. 
  • Schools must consider the identity of the harasser and the relationship between the harasser and reporting party when evaluating whether a hostile environment exists. Power dynamics are particularly critical in any sexual harassment case involving a student against a school employee. 
  • It should go without saying (but cannot) that administrative pressure on a school's Title IX office to reach a particular result, either substantively or in terms of timing, when such result is not consistent with a thorough, impartial, prompt, and reliable resolution of the complaint is "entirely improper."  
  • Materials should be created and distributed to staff, faculty, and administrators explaining what steps should be taken in the event of an allegation of sexual harassment.
  • Of the 13 investigations completed as of the time of the OCR report, 10 took more than 100 days, and the longest took 266 days. As OCR pointed out, these kinds of delays impact the availability and reliability of physical evidence and witness statements. Having an established, written protocol in place for how the school will communicate with the parties when there are delays, and how the delays themselves will be managed, is advised. 
  • Schools should have established timelines for their appellate process. Unreasonable delays in the appellate process can mean that the results of that process will have no effect. 
  • Preventing recurrence is just as important as remedying the harm; otherwise, students may experience further harassment and denial of educational opportunities. 
  • It is critical that a school have in place adequate procedures for identifying whether a respondent is a threat to the safety of the reporting party or the community. This will ensure that the school implements whatever measures are necessary to protect against that threat. Policies should be clear on the factors that are considered in a safety assessment. Communication with reporting parties about safety assessments and any measures taken (or lifted) is also critical. 
  • No-contact orders are important; and enforcing them is even more important. 
  • No-contact orders should be implemented in a way that minimizes or prevents harassment, rather than encourages it. For example, if the complainant has not yet been identified to the respondent, having the respondent learn of the complainant's identity through the issuance of a no-contact order is not advisable. Moreover, the reporting party should be able to make an informed decision about the no-contact order.
  • If the Title IX Office promises academic accommodations to a reporting party, it should follow through on arranging those accommodations; otherwise the reporting party will be put in the awkward position of inquiring about the accommodations with a professor who has no idea what the reporting party is talking about.
  • Gender and other biases in law enforcement practices can have a real and immediate effect on the safety of individuals and communities as a whole, including the confidence of victims in coming forward. OCR recommends the following to reduce bias: 1) clear, unequivocal policies about the proper handling of sexual assault crimes; 2) training for officers about these policies and about effective responses to sexual assault crimes more generally; and 3) supervision protocols and systems of accountability to ensure that officers responding to sexual assault crimes act in accordance with these policies and trainings.
  • OCR consistently places high focus on campus climate and the importance of adequately engaging student groups to ensure that schools are meeting the needs of their diverse campus communities. Religion, race, ethnicity, sexual orientation, disability, and gender identity (to name just a few characteristics) can all affect how students address and respond to sexual harassment, including their willingness to make an official report. Prevention efforts should take into consideration the diversified backgrounds and identities of the individuals in the campus community. 
  • Title IX Coordinators and responsible employees should be adequately trained and prominently identified. It should go without saying that responsible employees need to actually know they are categorized as such.
Conclusion
To fully comply with Title IX, UNM must take steps to: 1) provide comprehensive and effective training to all students, faculty, and staff; 2) revise the school's policies, procedures, and investigative practices; 3) adequately investigate or respond to all allegations of harassment and/or retaliation; 4) take prompt and effective steps to eliminate harassment, address its effects, and prevent its recurrence; and 5) ensure that those implementing Title IX receive adequate training. 

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.