Utica College



Notes from EduRisk/United Educators WebinarUnpacking the Final Title IX Regulations: Q&A With An ExpertMay 28, 2020Link to resource: and slides will be postedStatus of Final RegsFinal rule releasedA lot in preamble that we wouldn’t know by just reading the actual regs – not particularly well organizedEffective data August 14, 2020No “grace period”No lawsuit (yet) to preliminarily enjoin the regsSuggestion: OCR Blog: , mostly in response to things that are confusingTitle IX JurisdictionRegs have really narrowed the definitionOnce you’re through that narrow opening, our obligations have grown, as have prescribed proceduresFour elements – response obligations when recipientActual knowledge ofSexual harassmentIn an education program or activity of the recipientAgainst a person in the U.S.MUST RESPOND in a manner that is NOT deliberately indifferentEach of these detailed and complex, but this is the entire ball of waxLook at graphic in PowerPoint about where Title IX obligations ariseActual knowledge and responsible employees:Concept of responsible employees is gone.They are permitted, but not required, and serve no purpose re: institutional obligations. Matter of individual institutional policy. Does the T IX coordinator, or someone with the authority to institute corrective measures, have actual knowledge?Sexual harassment means conduct on the basis of sex that satisfies one of the following (focuses on conduct):Quid Pro Quo (employees)Unwelcome conduct determined by a reasonable person to be so severe, pervasive, AND objectively offensive that is effectively denies equal access to the recipient’s education program or activity (anything that doesn’t meet the first or third requirement) ORSexual assault, dating violence, domestic violence, or stalking – de facto conduct sufficient to meet the conditions for responseDifficulty might be “quid pro quo” student on student, but in practice unlikely to take many cases out of this process.Doesn’t meant we can’t address it, but have leverage under some other institutional processEducation program or activity:All operations of the institution, including a building owned/controlled by a recognized student orgApplies to employees, including employee on employee conductIn the U.S. – physical location of person experiencing the conduct. Again, must address via other institutional processesHow will we resolve:Conduct that is not “severe AND pervasive”?Unwelcome conduct on the basis of another protected classIn study abroadIn off campus housing complexes or unrecognized GreeksResponse Obligations to actual notice and formal complaint ruleActual knowledge:Reach out to a reporter – MUST offer supportive measures, explanation of complaint process, cannot do anything else without a formal complaintReach out to a formal complainant – investigation followed by a live hearing/compliant grievance process UNLESS facts require or permits dismissalSupportive measures:Availability of supportive measuresConsider complainant’s wishesInform about availability or supportive measures with or without the filing of a formal complaintExplain the process for filing a formal complaintCANNOT have rote, automatic supportive measures, individual analysis to determine if the measure if reasonable under the circumstances and, if it burdens another student, is THAT reasonable?Have to be listed in policy and cannot be punitive. THE SAME THINGS CANNOT BE INCLUDED IN A SANCTIONING LIST! Emergency removals:Interim suspension gone. Have supportive measure, remedies, and sanctions. No interim measures, other than this:Conduct an individualized safety and risk analysisPosing immediate threat to physical health or safety of anyone justifying removal (not mental health)Threat arises from allegations of sexual harassment Provides opportunity to challenge removalFormal Complaints – MUST follow procedures prescribed in the final regs in response to a formal complaint:Document signed by the complainantBy title X Coordinator alleging sexual harassment against a respondentRequesting that the recipient investigate the allegationComplainant must be participating in activitiesMust triage – are all 4 aspects met, do we have a formal complaint, is the complainant participating in activities?If not, and other parameters aren’t met, we MUST TERMINATE the grievance process with regard to the conduct for the purposes of sexual harassment under Title IX.Must document why, let parties know, allow for appeal, and can pursue under another processMAY DISMISS if complainant request to withdraw complaint, respondent is no longer enrolled or employed, when prevented from gathering evidence needed Implementing a compliant hearing modelLive hearingsAfter investigation process and all parties review in raw form and comprehensive reportAdvisors, no discretion to limit, can still regulate advisor role in meetings EXCEPT for purposes of cross-examinationsAll evidence MUST be subject to cross-examinationParties are not allowed to directly cross-examine each other. Advisor conducts the cross-examination; advisor is not intended to be an advocate. Needs to be a person who isn’t the party but is doing the cross-examination. Has to be oral, directly and in real timeWe provide parties with advisor if they show up without oneNo one can be compelled to participate or retaliated against for not participatingThe advisor can still conduct a cross-exam on behalf of the partyWhat is neither party shows up? We have to provide an advisor for the hearing to represent the empty chair and cross-examine the party who is plete ban on hearsay evidence not subject to cross-examination. The originator of the statement needs to be there to be cross-examination (like originator of text)Investigation report has to include all relevant information. Would include all of the reports and witness statements but aren’t able to be cross-examined if parties don’t show up for hearing. CANNOT consider that information already seen if not cross-examined.Only bar is that it needs to be relevant Hearing office will hear questions asked, make a determination on relevance, and then party answers. Only exceptions: Rape shield protection, legally-recognized privilege, and hearsay.Live remote hearing permissible a the recipient’s discretionHearing OfficersThe decision-maker cannot be the same person as the IT IX coordinator or investigator. T IX Coord can act as investigatorMust not have a conflict of interest or bias for or against complainants or respondent generally or individualWritten Determination:Best practice around formsDetailed listing of what must be includedOutcome Notification:Keeping confidential – can disclose to those participating in hearingConflict with VAWA?Records:All records retained for 7 yearsTraining:All trainedTraining published and postedSecuring permission from copyright holderDo we use recordings? Think about posting that – being candid in these sessions?Standards of evidence:Use same standard across all – employees and studentsAppeal standards – similar, with more specific inclusions, but can include our ownAlternative ResolutionA lot of leeway to use – provides with perhaps more appropriate processesCannot use in a case where an employee has alleged to sexually harass a studentParties can provide their informed consent and agreement to any kind of alternative resolutionMay not offer this unless a formal complaint is filedImplementationConvene a working group comprised of stakeholders necessary to make changes that are as broad reaching as those required by the regulations. Counsel, T IX C, Student affairs student conduct, HR, Provost’s officeGather all the materials that may need to be revised or considered – CBA’s, student and faculty handbooks, state laws, etc. If you identify conflicts with state law, bring on government relations and consider looping in your state AG’s officeIdentify community stake holders that must, or should, weigh in on the new policy prior to implementation, and develop a communications plan with respect to each. Let them know you’re working on this and there will be a document coming soon. Use those groups’ input Develop and adopt a timeline:What is the date for a final, mostly final, solid draft, internal draft for working group?When must key steps be accomplished to make sure drafting, input, revisions, and a final draft are rolled out?Communicate with all the groups you identified on the prior slideLet them know NOW when to expect to be asked for feedbackQ&AHow long would it take to overturn? Even at lightning speed, as long as 6 months. Could pass a law nullifying regulations, but Democrats would need to win it all – both houses and President. Barring a preliminary injunction, we’re looking at at least a year of compliance with these regs.Party not participating in hearing? A party has absolute right to not participate. Can not be retaliatory in blocking them from one part of the process and not others (must allow at hearing, for example)Can use outside legal counsel to serve as decision maker/hearing office (or judge, arbitrator, etc.). Limitation has to do with bias, not status.If there is a true conflict, you are required to comply with federal law over state law.Notes on transcript? Some tension between disclosure of participation in proceedings and state law rules re: transcript notations. In preamble, you are not precluded so long as you list in your policy, in the list of potential sanctions, that there could be a transcript notation. Be very clear about that being a sanction – look hard at that travelling with the students’ file?Redacting student information in files provided to others? It depends. No question that a party is entitled to know the nae of a witness providing information. Providing info to witnesses may be more flexible in terms of redacting names. For purposes of sharing internally in order to respond meaningful, not likely to be compliant. Could redact if indicating who “student 1” is so that identities are clear.Do not need a formal complaint to do an emergency removal. Essentially a threat assessment analysis. ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download