Title IX Compliance

Agenda What is Title IX? Office for Civil Rights and Compliance Standards Reporting Title IX Concerns Mandatory Reporters, Confidential Employees & Faculty Potential College Responses to Title IX Report Interim measures Resources and services Accommodations Broader combination of informal remedies 3020 Investigation + Possible Disciplinary Action Investigations and Preponderance of the Evidence Standard Finding of Responsibility and Sanctions Questions?

Title IX Overview Title IX is a federal law that prohibits sex discrimination in federally funded educational programs and activities Title IX compliance “reduces and eliminates barriers to educational opportunities that are caused by sex discrimination”* Applies to students and employees Commitment to safe and non-discriminatory learning and working environments for students and employees *Peter F. Lake, Embracing the Spirit of Title IX: The ‘Four Corners of Title IX’ and an Education-Based, Public Health- Oriented Approach to Regulatory Compliance, 2015.

What is Sex Discrimination? Examples? Sexual Harassment Sexual Violence or Assault Stalking Dating/Domestic Violence

Office for Civil Rights and Compliance Standards Department of Education Enforces Title IX and sets standards for investigations, responses, and remedies* If a college has notice of an incident of possible sex discrimination, it is obligated to:* Respond—this may include an investigation per College policy Take action to end the discrimination Remedy its effects (for an impacted individual and/or for the campus community) Prevent its reoccurrence *Saundra K. Schuster, Association of Title IX Administrators and the NCHERM Group, Understanding Title IX & The Impact on Higher Education, 2013

Additional Considerations for Title IX Compliance Efforts Federal case law Nebraska law Assault or abuse of a minor  Report to DHHS/Law Enforcement Federal statutes Clery Act FERPA Due Process

Reporting Title IX Concerns

Reporting Options for Students Report to the Title IX Coordinator or Designee Speak to a Mandatory Reporter Confide in a Licensed Student Counselor Contact Law Enforcement Reporting Options for Faculty & Staff Report to Title IX Coordinator Contact Human Resources Speak to a counselor through the Employee Assistance Program Contact Law Enforcement

Mandatory Reporter or Confidential Resource? President Vice Presidents Deans College Title IX Coordinator Dean of Students Housing/Residence Life Staff Coaches and Assistant Coaches Campus Security Officers *Report information will be communicated to the Title IX Coordinator Licensed Student Counselors Athletic Trainers *Can keep information they receive confidential and are not required to report information to the Title IX Coordinator (in most cases). Faculty is in neither category

How can PSC respond to a Title IX concern? Interim measures No Contact Order Temporary Suspension Changes to on campus living or working situations Academic or Employment Accommodations Investigation Connect with campus resources and services Example: Disability accommodations Accommodations, resources, and services are available to both the alleged victim and the alleged perpetrator

Report of Sexual Harassment Complete 3020 investigation + potential disciplinary action Alleged Victim requests no action Balancing Test Combination of informal resolutions (Change class schedule, dorm room, no contact order) Law Enforcement requests that the College delay its investigation Reporting Party requests confidentiality (limits the College’s ability to respond) Interim Measures -No Contact Order -Change in living situation -Change in on campus work assignment Resources and Services -Counseling -Academic Accommodations -Disability Accommodations The College’s duty is not necessarily to investigate a Title IX report—it is to respond to a Title IX report. That response often includes an investigation and formal finding, but there are many ways that a college can respond to adequately address a problem. This chart exemplifies some of the different paths that a Title IX report can take. I used a sexual harassment report as an example. NOTE—in situations where the victim does not want any action taken, or when the victim requests confidentiality, the college still has an obligation to balance that request against its larger duty to ensure a safe an non-discriminatory campus community. There may be cases where the college takes action against the alleged victim’s will.

BP 3020 Investigation in a Nutshell Notice from reporting party Speak with alleged victim and then alleged perpetrator Hear their story Ask questions, establish a timeline, obtain evidence Provide interim measures and resources Contact witnesses or individuals with relevant information When recollections do not match, give each party the opportunity to address the discrepancies Assess the credibility of the parties and the evidence Determination via preponderance of the evidence

Investigations and Preponderance of the Evidence Standard Preponderance of the evidence (“POE”) is the standard of proof used by the Title IX Coordinator/ Designee in determining whether or not the alleged perpetrator engaged in conduct that is in violation of Board Policy 3020. POE is the standard of proof used in most civil lawsuits in the United States* POE refers to a level of evidence that would cause the Title IX Coordinator/Designee to believe that it is more likely than not that the alleged conduct occurred.* Also known as “the greater weight of the evidence.”* *Nedda Black et al., The ATIXA Playbook: Best Practices for the Post-Regulatory Era, 19-20 (2017 ATIXA).

Finding of Responsibility and Sanctions Sanctions may be imposed by PSC if an alleged perpetrator is found responsible for a violation of BP 3020 Three characteristics of a fair sanction:* Proportional to the severity of the offense Rationally related to the offense Consistent with sanctions for similar offenses* *Michael Henry, et al., The ATIXA Guide to Sanctioning Student Sexual Misconduct Violations, 2, 8 (2018 ATIXA).

Aggravating and Mitigating Factors Aggravating Factors Mitigating Factors physical harm use of a weapon use of a date rape drug a pattern of similar behavior significant deprivation of access or opportunity harassment that occurred when a No Contact Order was in place rehabilitation is possible genuine remorse whether the incident stemmed from a misunderstanding, rather than maliciousness differences in cultural norms prior situations in which the alleged perpetrator’s actions were permissible This list was developed from ATIXA material. See Michael Henry, et al., The ATIXA Guide to Sanctioning Student Sexual Misconduct Violations, 2, 8, 15, 16 (2018 ATIXA).

Questions or Concerns?