Updates and Current Trends in Title IX Rocky Mountain Campus Safety Summit June 2018

Demetrius J. Peterson Attorney Education Group demetrius.peterson@huschblackwell.com

Agenda New Title IX Guidance from September 2017 Old Guidance vs. New Guidance Policy Considerations

September 22, 2017 Dear Colleague Letter

Old Guidance Rescinded 2014 Sexual Violence Q&A 2011 Dear Colleague Letter Compliance assessed by 2001 Revised Sexual Harassment Guidance Q&A on Campus Sexual Misconduct (2017)

Explanation for Rescinding “Imposed new mandates” “Improper pressure . . . to adopt procedures that do not afford fundamental fairness” “Led to deprivation of rights for many students” “Not succeeded in providing clarity” “Imposed these regulatory burdens without affording notice and the opportunity for public comment”

Rulemaking Process ED intends to engage in rulemaking process with notice and comment New approach will “respond to the concerns of stakeholders” and “align with the purpose of Title IX to achieve fair access to educational benefits”

Timing for New Regulations? NPRM by June??? VAWA Regs Example President Obama signed VAWA Reauthorization in March 2013 Negotiated rulemaking committee announced in September 2013 NPRM issued on June 20, 2014 Comment period closed July 21, 2014 Final Rule published October 20, 2014 Effective July 1, 2015

Old Guidance vs. September 22, 2017 Q&A

Preliminary Note: Institutions are still required to… Provide notice of grievance procedures, including how to file a complaint Have grievance procedures applicable to complaints alleging sexual misconduct carried out by employees, students, and third parties Perform “adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence.” Provide reasonably prompt timeframes for the major stages of the process Notify the parties of the outcome of an investigation Take other steps to prevent the recurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate

Initial Written Notice (New Guidance) Should be given once investigation is opened Sufficient factual details Sufficient time to prepare before “initial interview”

Sufficient Factual Details Identities of parties Specific policy provisions Precise conduct Date and location of alleged incident

Other Written Notice (New Guidance) “Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation.”

Promptness (Old Guidance) 60 day investigation timeframe

Promptness (New Guidance) 60 days expectation has been removed “No fixed time frame” to complete an investigation OCR evaluates school’s good faith effort to conduct “fair, impartial investigation in a timely manner”

Standard of Proof (Old Guidance) Preponderance of the evidence

Standard of Proof (New Guidance) Option to use either preponderance or clear and convincing But standard used for sexual misconduct cases should be consistent with that used for other forms of misconduct

Interim Measures (Old Guidance) Interim measures should “minimize the burden on the complainant” Effect: burden falls on the respondent

Interim Measures (New Guidance) Prohibits schools from relying on “fixed rules or operating assumptions that favor one party over another” School cannot make interim measures available only to one party Institution must make “every effort to avoid depriving any student of her or his education”

Jurisdictional Expectations (Old Guidance) Investigate all reports, regardless of location

Jurisdictional Expectations (New Guidance) No duty to address “incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of recipient” Must “redress” hostile environment that occurs on campus “even if it relates to off-campus activities”

Scenario 1 Sadie attends a large university. One night, Sadie is sexually assaulted behind a bar located several miles from campus. Sadie immediately reports the assault and police apprehend the suspect. He is not a student. What is the school’s Title IX obligation?

Does the school have a Title IX obligation to investigate? Yes No It Depends

Considerations Off campus location; third party not affiliated with school Probably not creating hostile environment on campus Even though investigation likely not required under new guidance, what can institution do? Offer Sadie support and resources Ban assailant from campus

Scenario 2 Sadie attends law school at a large university in Dallas. One night, Sadie is sexually assaulted behind a bar located several miles from campus. Sadie reports to the university, but not police. The respondent is a graduate student who attends the university but only comes to the dental school building.

What duties does the institution have? None – Off campus conduct with a 3rd party Must investigate under the policy if Sadie requests it Must provide Rights & Options Document and assess whether there is any danger to Sadie while on campus

Considerations Off campus, but assailant is a student Based on the situation, is there a danger to Sadie on campus? If so, follow regular processes

Report Review (New Guidance) Investigation should result in written report summarizing evidence Parties must have “same meaningful access” to information used in report and other proceedings Parties should have “opportunity to respond to report in writing” in advance of “decision of responsibility” Alternative: allow parties to respond to report at a live hearing

Appeals (Old Guidance) Appeal process is optional But, if there is an appeal process it must use equally available procedures

Appeals (New Guidance) Appeal process is still optional May allow only for responding party If allowed for both, must use equally available procedures

Informal Resolution (Old Guidance) In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis

Informal Resolution (New Guidance) If parties voluntarily agree to it and the institution determines it is appropriate, “the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.”

Some Other Notable Elements of the Rescinded Guidance Discouragement of cross examination Ban on the use of sexual history No reliance on criminal investigation

Policy Considerations

Recommended Policy Changes Provision calling for written notice with sufficient details and with sufficient time prior to initial interview Language that ensures parties are provided written notice in advance of any meeting or hearing with sufficient time to prepare

Recommended Policy Changes (cont.) Adjust language about interim measures so that it doesn’t appear to favor the complainant Provide for pre-determination review of report and written comment

Discretionary Policy Changes Remove 60 day timeframe Standard of proof (clear and convincing instead of preponderance?) Limit appeals to responding party only Maximum flexibility with informal resolution (including using mediation in cases of sexual assault, if parties agree and institution deems it appropriate)

Discretionary Policy Changes (cont.) Relax strict prohibition on all sexual history evidence Allow cross-examination Align jurisdictional language with “programs and activities” analysis

Issues still to be clarified… Relationship between criminal investigations and institution What it means to have a “hostile environment” created by off-campus conduct Reluctant complainants Mandatory reporting/anonymity Protected speech vs. actionable harassment Others?

Remember the Clery Act! Clery Act obligations are independent of Title IX guidance

Some Key Clery Requirements Related to Sexual Misconduct Timely warning considerations Training & programming Required statements in ASR Simultaneous notice of outcome

Some Key Clery Requirements Related to Sexual Misconduct (cont.) Advisor “of their choice” Rights and options Campus and community resources Statistical reporting

What is happening at OCR? New Guidance: existing resolution agreements still binding OCR complaints down 23% since the beginning of the Trump Administration FY19 Budget predicts a reduction in staff No review of complaints on transgender bathroom/locker-room accommodations issues

Shift in Focus of OCR Investigations Focus on individual complaint Avoiding systemic review

Questions?

Questions