1. Title IX Compliance

2. 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?

3. 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.

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

5. 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

6. 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

7. Reporting Title IX Concerns

8. 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

9. 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

10. 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

11. 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.

12. 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

13. 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
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, (2017 ATIXA).

14. 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).

15. 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).

16. Questions or Concerns?