Advocating for Campus Survivors Using Title IX: A guide for advocates and attorneys. Amanda Walsh, Esq. Victim Rights Law Center

Transcription

1 Advocating for Campus Survivors Using Title IX: A guide for advocates and attorneys Amanda Walsh, Esq. Victim Rights Law Center 2013 Victim 2014 Rights Victim Law Rights Center. Law Center. All rights All rights reserved. reserved. No No part part of of this this document may be be transmitted, reproduced, distributed, distributed, or adapted or adapted without permission. without permission.

2 WHO IS THE VRLC? VRLC Boston Office 115 Broad Street, 3 rd Floor Boston, MA TA@victimrights.org (617) VRLC Portland Office 520 SW Yamhill, Suite 200 Portland, OR (503) TA@victimrights.org Web: Do not reproduce, distribute, adapt without permission from the Victim Rights Law Center.

3 The VRLC as a conference trainer will not be providing legal advice and encourages all schools to direct legal questions to their institution's legal counsel.

4 Training Overview Title IX Introduction Overview: Reporting protocols and confidential reporting on campus Advocating for campus sexual assault survivors: Negotiating with the school Advocacy during the disciplinary process Filing an OCR Complaint

5 Getting to know the language Perpetrator/assailant and victim/survivor Accused and accuser Respondent and Complainant

6 Part 1: Introduction to Title IX

7 Title IX Overview Who is required to comply with Title IX? All public & private educational institutions that receive federal funds. What is receive federal funds under Title IX? Qualifying federal financial assistance can be in the form of: an award or grant of money; use or rent of federal land or property; and federal training. Federal financial assistance can also be received indirectly» Ex: Accepting students who receive federal financial aid What does Title IX say? General mandate: Prohibits recipients of federal financial assistance from discriminating on the basis of sex in education programs or activities. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.

8 Gender-based Harassment Sexual Harassment Sexual Violence

9 Title IX Overview How does Title IX protect students? Protects students in connection with all the academic, educational, extracurricular, athletic, and other programs of the school. Also protects students who may have been sexually harassed off school grounds, outside a school s education program or activity, if the harasser was a fellow student. Advocacy Tip: Remember that Title IX applies to K-12 schools, as well as colleges. Keep this in mind when working with elementary, middle, and high school survivors.

10 What is required of schools even before a report of sexual violence? Publish a notice of non-discrimination. Designate an employee to coordinate Title IX compliance. (4) Responsibilities: Disseminate notice of nondiscrimination Identify and address systemic patterns of discrimination Educate parties about the policy and answer procedural questions about the logistics of the disciplinary process Oversee the investigation of a complaint Adopt and publish grievance procedures.

11 A school receives a report of sexual violence Now what? The school must inform the survivor of their options, including: Medical treatment Counseling & mental health services* Disciplinary complaint Criminal complaint/police report. Options to avoid contact with perpetrator and to change living and academic situations* *Also required under Clery s Victims Bill of Rights Advocacy Tip: One page resource sheets for survivors are helpful tools in helping you understand and advocate for a survivors Title IX rights.

12 A school receives a report of sexual violence Now what? A school must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation. - DCL pg. 4 Inquiry must be prompt, thorough, and impartial. Advocacy Tip: When working with campus survivors remind them that Title IX prohibits retaliation by the accused student or other third parties. The survivor can always ask the school what responsive action may be taken if retaliation occurs.

13 Title IX & the Grievance Process: FAQs How long should a grievance process be? The process should be reasonably prompt and the DCL and FAQs offers 60 days as a general guideline for the length of a typical investigation. What is the standard of proof? Preponderance of the evidence. ( It is more likely than not that the accused student is responsible for the alleged sexual assault. ) Can a school use both formal and informal processes? Yes, but mediation should not be used to resolve a sexual assault complaint. Also, the parties must be notified that they have the right to end the informal process at any time and begin the formal process.

14 Title IX & Law Enforcement: FAQs Is it sufficient that the local police investigated the sexual assault? No, the school s Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent Title IX obligation to conduct an adequate, reliable and impartial investigation of complaints. Does Title IX require schools to notify local police if a sexual assault is reported? No. Generally, the decision to file a criminal complaint will be up to the survivor. Title IX does not require a school to report alleged incidents of sexual violence to law enforcement, but a school may have reporting obligations under state, local, or other federal laws. (FAQs page 27) If the police determine that there is insufficient evidence to proceed criminally, can a school still find an accused student responsible? There could be sexual harassment under Title IX even if insufficient evidence of a criminal violation. This is due to the lower burden of proof, preponderance of the evidence.

15 Title IX & Law Enforcement FAQs Local police asked the client/survivor s school to wait on the Title IX investigation until they completed theirs. Is that ok? Yes, but only for 7-10 days. After that, a school must start its Title IX investigation. Our local police handle these cases really poorly. Is it okay for a school to discourage victims from filing a police report? No, a school cannot dissuade a victim from filing a criminal complaint.

16 Advocacy Tip: Student survivors disclose and report their experiences to a variety of individuals. Many times in school setting these are teachers, professors, guidance counselors, etc. Title IX has specific reporting obligations for school officials and employees. Helping survivors understand the confidentiality implications of who they report to can help them protect their privacy and confidentiality as they make decisions about disclosing the assault.

17 Understanding Victim's Confidentiality and its Limits Under Title IX

18 Group One: Responsible Employees One An Employee who has the authority to take action to redress the harassment or Two An employee who has the duty to report to the appropriate school officials sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee Three An individual who a student could reasonably believe has this authority or duty

19 Group Two: Campus Employees with Privilege

20 People who provide assistance to students who experience sexual violence and are not professional or pastoral counselors all individuals who work or volunteer in on-campus sexual assault centers, victim advocacy offices, women s centers, health centers, including front desk staff and students. Group Three: Campus Employees with Confidentiality **Non-licensed persons are STRONGLY ENCOURAGED, but not required, to be designated as individuals who are exempt from responsible employee reporting duties. **

21 Part 2: Using Title IX Rights to Advocate for Survivors

22 HOW CAN YOU ADVOCATE FOR A CAMPUS SURVIVOR? Negotiate with the college or university Provide advocacy and support throughout the disciplinary process File an Office for Civil Rights complaint Do not reproduce, distribute, adapt without permission from the Victim Rights Law Center. 22

23 Negotiate with the School Step 1: Discuss with client desired services or assistance needed from the school. Step 2: With the help of the client, identify people on campus that are in a position to provide services and assistance. Step 3: Contact school to determine willingness to work with victim. Step 4: Make requests for services or assistance in writing to the school.

24 Negotiate with the School: Services and Assistance on Campus What can you request on behalf of a survivor? Safety measures Housing changes Campus no contact order Academic assistance Advocacy Tip: Be Creative! Title IX provides a floor, not a ceiling. The facts and circumstances surrounding each case is different. Survivors are in the best position to tell the school what will make them feel safe.

25 How can you advocate for a campus survivor? Negotiate with the college or university Provide advocacy and support throughout the disciplinary process File an Office for Civil Rights complaint Do not reproduce, distribute, adapt without permission from the Victim Rights Law Center. 25

26 Advocating During a Disciplinary Process Assist a survivor draft his/her initial statement for the disciplinary process. Focus the statement on the details of the sexual assault(s), rather than the events leading up to or following the assault. Don t cross-examine yourself! Be up front about bad facts Advocacy Tip: A disciplinary process can be emotionally taxing on survivors. Survivors have a choice as to whether they pursue the disciplinary process. Helping a survivor weigh the potential impact of the process on their academic, social, and extracurricular life against their personal goals can assist a survivor in making a decision that is best for them.

27 Advocating During a Disciplinary Process Help victim prepare for disciplinary hearing. Survivors have the right to be afforded similar and timely access to any information the accused is given, that will be used at the hearing. If a school allows the survivor or the accused to have an attorney participate in a disciplinary proceeding, then they both must have the right to have an attorney participate.

28 Advocating During a Disciplinary Process Support victim during a hearing/fact finding process: Throughout a school s Title IX investigation, including at any hearing, survivors have the right to an equal opportunity to present relevant witnesses and other evidence. Survivors have the right to a grievance procedure facilitated by an administrator with training or experience in your campus process. Schools are strongly discouraged from allowing the accused to cross-examine or directly question you during the disciplinary process.

29 Advocating During a Disciplinary Process Support victim after a hearing/fact finding process: For any disciplinary proceeding, survivors have the right to have that proceeding documented, which may include written findings of facts, transcripts, or audio recordings, depending on the campus process. Survivors have the right to be notified, in writing, about the outcome of the complaint whether or not the accused was found responsible. The right to notice of the outcome only refers to information about the findings of responsibility and not disciplinary sanctions, unless otherwise noted by the school s conduct or disciplinary policy.

30 Common Disciplinary Process Problems & T9 Violations Accused allowed to directly question the Accuser Title IX Coordinator fails to publicize his/her contact information widely School waits for the outcome of a criminal case No transcript or record kept of all hearings or fact-finding interviews Lack of adherence to written outcomes Unfair appellate process

31 How can you advocate for a campus survivor? Negotiate with the college or university Provide advocacy and support throughout the disciplinary process File an Office for Civil Rights complaint Do not reproduce, distribute, adapt without permission from the Victim Rights Law Center. 31

32 Can You File an OCR Complaint? Does the school receive federal funds? Was the last act of discrimination less than 180 days ago? Does this type of discrimination fall within Title IX? Bullying vs. sexual harassment

33 Strategic Considerations When Filing an OCR Complaint If eligible, is this the right solution for client? There is a breakdown in communication or trust between the survivor and the school. Survivor wants additional training for the school. The changes the survivor is seeking are institutional or systemic. Survivor understands that the complaint is not likely to result in immediate change and the investigation process is lengthy.

34 How to file an OCR Complaint? 1. Contact your regional Office of Civil Rights 2. Submit written complaint 3. Victim signs a consent form Freedom of Information Act request Advise student that his/her name will be released to the school

35 Drafting an OCR Complaint Limit the description of facts regarding the sexual assault. Helps to avoid inconsistencies if the survivor has an ongoing criminal process or decides to report to law enforcement at a later date. (Note: Do not need a police report to file an OCR complaint) Privacy Not necessary for the complaint, so no reason to share the details again.

36 Drafting an OCR Complaint Focus on school s action of non-compliance with Title IX. Include a procedural history/timeline of the case. Limit the number of times Complainant s name is used.

37 What happens after I file? No action - you file a complaint and no investigation is opened If OCR opens an investigation: OCR will contact the Complainant and the school Interview victim Gather documents - data request

38 Complaint Investigation Following data requests and interviews, a determination is made about whether or not there was a violation of Title IX Resolution letter issued showing violations and mandating corrective behavior

39 Additional Helpful Tips Provide additional relevant documentation when filing the complaint correspondence, school s policy, website screenshots, etc. Request an initial meeting with the staff attorney/investigator

40 How can you advocate for a campus survivor? Negotiate with the college or university Provide advocacy and support throughout the disciplinary process File an Office for Civil Rights complaint Do not reproduce, distribute, adapt without permission from the Victim Rights Law Center. 40

41 Resources January 2001, Office for Civil Rights Guidance, available at: April 2011, Dear Colleague letter, available at: May 9, 3013, University of Montana Resolution Findings Letter available at: April 29, 2014, Questions and Answers on Title IX and Sexual Violence available at: Nancy Chi Cantalupo, Campus Violence: Understanding the Extraordinary Through the Ordinary, 35 J.C. & U.L (2009). Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Assault, 43 Loy. U. Chi. L.J. 205 (2011).

42 THANK YOU! 42