Top 5 Reasons I'm Stuck in This Title IX Investigation Instead of Running My School

In 2012, Title IX celebrates its 40th anniversary. Over the years, the law has changed in both subtle and significant ways, but has remained focused on its original goal of eliminating gender discrimination in higher education. 

To achieve that goal, Title IX prohibits, among other things, harassment on the basis of gender. Harassment is a form of gender discrimination. The law has always prohibited it. This year, however, the U.S. Department of Education significantly upped the ante when it comes to the obligations of colleges and universities to prevent not only sexual harassment, but also acts of sexual violence.

In April 2011, the Department published a "Dear Colleague" letter which imposed new obligations on colleges and universities. These obligations include:

  • A duty to investigate and take action on complaints of sexual violence.
  • A duty to take steps to prevent and stop sexual violence regardless of whether a criminal investigation takes place.
  • A duty to protect those who complain of sexual violence.
  • A requirement to have a grievance policy that specifically addresses complaints of sex discrimination, including sexual violence. The policy must allow for the presentation of evidence and rights of appeal.
  • Use of the "preponderance of the evidence" standard to resolve complaints.
  • Notification of both parties to a complaint of the outcome of the investigation.

Additionally, if a college or university fails to follow these requirements, it may be subject to an investigation by the Department's Office of Civil Rights (OCR). If the OCR determines that an institution has failed to act properly, then it may seek "appropriate remedies" against the institution. These may include, but are not limited to, actions designed to provide recourse to the complainant and the broader student population. It may also include the development and implementation of policies and procedures designed to prevent sexual harassment and violence. Finally, the OCR may require lengthy and detailed regular reports from the institution on the implementation of these "remedies" and their effectiveness in redressing and preventing harassment and sexual violence.

Clearly, colleges and universities should do all they can to prevent sexual harassment and acts of sexual violence among their students -- it's not only the law, it's simply the right thing to do. That said, some will unfortunately find themselves facing the business end of the OCR's investigative arsenal.

To avoid such a result, and to do the right thing by their students, colleges and universities should take steps to avoid the following "Top Five" reasons they may be facing an OCR investigation:

# 5- Don't designate a Title IX coordinator.

Institutions should designate a single point of contact for coordination of all issues related to sexual harassment and violence. This will ensure that the issue receives appropriate attention. It will also help to make sure that complaints, investigations, and remedies are all dealt with in a consistent manner.

#4- Don't protect complainants.

Complainants need to be protected from both their alleged assailants and from retaliation by the assailant's friends. Institutions should not make the mistake of removing the victim from classes and dormitories without also considering removing or separating the assailant instead.

#3- Don't investigate complaints.

Complaints of sexual harassment or violence must be investigated promptly and thoroughly, with both sides given the chance to present their side of the story and evidence to support it. A conclusion must be reached and it must be shared with both the complainant and the alleged perpetrator.

#2- Don't provide training to college personnel.

Institutions should provide regular training to law enforcement, faculty, staff, and any employees who come in regular contact with students. The training should include information about how to recognize and respond to complaints of sexual harassment or violence.

#1- Don't revise the college's policy to reflect the new standards.

Institutions should review and revise their existing sexual harassment and discrimination policies to ensure the they meet the standards of the new Dear Colleague letter from the Department. The letter provides lengthy and detailed guidance on how to comply with the requirements of the law. Institutions that ignore it do so at their peril.

Colleges and universities must take steps to both investigate and prevent sexual harassment and violence among their students. Title IX requires it and it's clearly the right thing to do. Reading and understanding the Department's latest Dear Colleague letter is the first step to making that happen.

Edward M. Cramp, Esq., is a higher education attorney and the managing partner of the San Diego Office of Duane Morris LLP. He can be contacted at 619/744-2223 or EMCramp@duanemorris.com.

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