Lessons Learned from Litigation/OCR Investigations in Title IX Compliance Dr. Dee Dee Anderson Interim Vice Chancellor University of Tennessee, Chattanooga Courtney Bullard, JD Institutional Compliance Solutions

2016 Trends On the Rise Also on the Rise Reports of sexual misconduct Respondent outcome severity At least 246 ongoing OCR Title IX investigations at 195 postsecondary institutions Litigation or complaints brought by complainants Media Attention = Increase in money and resources spent by institutions in this area Reverse Title IX lawsuits brought by respondents Since March of 2014, at least 20 favorable results for respondent plaintiffs in lawsuits One resolution of a complaint filed by a respondent with OCR finding that a college violated Title IX rights of accused student Media attention

Increase in Severe Outcomes

Current Trends Over 50 reverse Title IX lawsuits filed against higher education in 2014 and 2015 At least 20 favorable results for respondent plaintiffs in reverse Title IX lawsuits FIRE reports that a new reverse Title IX lawsuit is filed each week Inside Higher Ed

What Will Happen to OCR DCLs Possibilities Note: Obama administration created a new education dpt division dedicated solely to investigation violations of Clery Title IX, VAWA and Clery remain – guidance is grounded in statutes Supreme Court has interpreted Title IX many times Gwinnett County: monetary damages can be awarded to victims of sexual harassment under Title IX Cases included student-on-student misconduct Rulings suggest that a hostile work environment existed when institution failed to act to protect the individual

Bottom Line It will take time to flesh out Toothpaste is out of the tube Campus commitment to fairness and balance will not change and strides in education and awareness Remains obligation of colleges and universities to address sex discrimination and misconduct in a fair and balance manner regardless of what happens with OCR Parental/student expectations remain

OCR Investigations Timeline What they are asking for Are they still active?

Before Litigation – Positioning the Institution for a Favorable Ruling Conduct disciplinary proceeding in compliance with institution’s policies Gather documents from key administrators Transcribe any hearings for submission to court Copy inside/outside counsel on fact-gathering communications If you raise safety concerns, be prepared to back it up

Number 2 – Policy/Procedure Have a process and follow it Policy, Practice, What’s Fair Don’t over promise Don’t create obligations greater than the law imposes (e.g. no “due process” right at a private institution”) Avoid words of obligation “rights,” “will,” “promise,” “entitled” Flexibility in policy “Institution will endeavor to complete an investigation in 60 days vs. “institution will complete an investigation in 60 days” extensions Unilateral right to update policy Decisions on information considered, and not considered Disclaim intention to create contract when permissible

Number 2 – Policy/Procedure Use policy in place at time of incident Look for inconsistencies across campus policies and fix them! Evaluate Your Appeals Process Do you have one? If so, are you following it? If so, what can/cannot be considered

Number 3 – Document, Document, Document Document EVERYTHING Interim measures Communications with complainant and respondent Investigation Accommodations and rationale – academic, investigative, conduct of hearing “The palest ink is better than the best memory.” -Chinese proverb

Number 3 – Document but…….

Number 4 – Actual and Perceived Bias Perceived bias is crucial Manner of questioning Guilty before proven innocent Statements made outside of the process Difficult line to walk

Number 5 – Know Your Role in the Process

BONUS – Involve Counsel Early and Often Your attorney is your friend Attorney-client privileged communication Don’t wait until crucial decisions have been made Carefully vet outside counsel – no substitute for experience

Institutional Compliance Solutions Contact Information Courtney Bullard, JD Institutional Compliance Solutions 423.757.0448 chb@icslawyer.com Dr. Dee Dee Anderson Deedee-anderson@utc.edu 423.425.4260