1 / 52

OACUBO 2019

OACUBO 2019. The Business Impacts of Title IX. MELISSA CARLETON JOSH NOLAN BRICKER & ECKLER LLP. THE UPDATE. CURRENT CAMPUS CLIMATE AND SOCIETAL ISSUES. 2014. 2015. 2016. 2017. 2018. #MeToo. CAMPUS IMPACTS.

yuval
Download Presentation

OACUBO 2019

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. OACUBO 2019 The Business Impacts of Title IX MELISSA CARLETON JOSH NOLAN BRICKER & ECKLER LLP

  2. THE UPDATE CURRENT CAMPUS CLIMATE AND SOCIETAL ISSUES

  3. 2014

  4. 2015

  5. 2016

  6. 2017

  7. 2018

  8. #MeToo

  9. CAMPUS IMPACTS • #MeToo reports: Reports of sexual harassment cases involving faculty/employees • Use of social media to organize: Increased speed; pressure on institutional response

  10. CAMPUS IMPACTS • Increase in criminal and civil litigation: Pressure from prosecutors; threatened litigation during investigations • Pressure on Title IX response: Collaborative consortiums; shared institutional response; top down leadership

  11. CAMPUS IMPACTS • Protest Policies: Increased awareness of private colleges’ regulation of campus protest • Training, training, training: New NCAA requirements; annual training reqs. from VAWA; focus on team building

  12. Available Financial Impacts • Insurance Data (UE): (2011 – 2015) - $31M in claims and defense costs (litigation and OCR Claims) • $22M for “alleged victims” • $9M for “alleged respondents” • Types of Claims: Title IX (statutory claims), breach of contract, negligence, defamation

  13. Available Financial Impacts • EIIA Insurance Contract Requirements (2017): Requires IHEs who contract with outside investigators too require investigators to carry PLI, CGL, Auto, and Workers’ Comp Insurances ($1M/3M)

  14. Available Financial Impacts • Staffing Requirements: • Title IX Coordinator who is independent and can report at a high level; • TIXC must be trained, have appropriate qualifications (JD?) • TIXC must have backup (deputies) who are similarly trained and experienced.

  15. Available Financial Impacts • Staffing Needs: • Investigator (in-house or external) • Admin Coordinator (case manager) • Clery coordinator • Counseling and Support Services • Training for campus police/campus safety

  16. THE UPDATE OCR GUIDANCE, LEGISLATION, AND LITIGATION

  17. New OCR Instructions No more 3-year reviews, necessarily

  18. 2017 DCL and Q&A September 22, 2017

  19. 2017 DCL HIGHLIGHTS EMPHASIS ON DUE PROCESS: ACCESS TO INFORMATION; EFFECTIVE TRAINING; PREPONDERANCE OF THE EVIDENCE STANDARD NOT REQUIRED 2001 SEXUAL HARASSMENT GUIDANCE CONTROLS: LAST GUIDANCE TO USE NOTICE AND COMMENT – CONTROLS FOR K-12 AND HIGHER EDUCATION

  20. 2017 DCL AMBIGUITIES CONFLICTING AND AMBIGUOUS LANGUAGE: APPEALS AVAILABLE TO RESPONDENT ONLY; NOT COMPLIANT WITH VAWA; USE OF INFORMAL RESOLUTION? 2001 SEXUAL HARASSMENT GUIDANCE CONTROLS BUT BE AWARE OF OTHER DCLs (e.g. Bullying)

  21. TRENDS IN POLICY MODIFICATION OF INTERIM SUSPENSION PROCESS: FOCUS ON MAINTAINING THE EDUCATIONAL OPPORTUNITIES; INDIVIDUALIZED HARM ASSESSMENT; NO BRIGHT LINE RULES INVESTIGATOR/HEARING PANELS IN PUBLIC SCHOOLS (UMICH CASE)

  22. 2018 NPRM (Proposed Regs) November 17, 2018

  23. Big Changes • Definitions • Reporting/Formal Complaints • Jurisdiction • Emergency Removal • Grievance Procedures • Hearings and Cross-Examination • OCR Deference & Safe Harbors

  24. Sexual Harassment • Quid Pro Quo (Employee) • Hostile Environment • Sexual Assault

  25. Sexual Harassment • Quid Pro Quo • “An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct”

  26. Sexual Harassment • Hostile Environment • “Unwelcome conduct on the basis of sex that is so severe, persistent, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity”

  27. Sexual Harassment • Hostile Environment • Potential Conflicts with EEOC • “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when … such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.” 29 C.F.R. 1604.11

  28. Sexual Harassment • Sexual assault – refers to Clery Act definition: • Rape • Fondling • Incest • Statutory rape*

  29. Actual Knowledge • Notice to the TIXC “or any official of the recipient who has the authority to institute corrective measures on behalf of the recipient” • Mere ability or obligation of an employee to report sexual harassment isn’t enough • Fact-sensitive analysis

  30. Supportive Measures • “Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed.”

  31. Supportive Measures • Designed to: • restore or preserve access to the recipient’s education program or activity, without unreasonably burdening the other party; • protect the safety of all parties and the recipient’s educational environment; and • deter sexual harassment

  32. Supportive Measures • May include • Counseling • Extensions of deadlines • Course-related adjustments • Modifications of work/class schedules • Campus escort services • Mutual restrictions on contact between the parties • Changes in work/housing locations • Leaves of absence • Increased security/monitoring of certain areas of the campus

  33. Formal Complaint • DOCUMENT SIGNED BY: • Complainant, or • TIX Coordinator • Alleging sexual harassment against a respondent: • Must be about conduct within the recipient’s education program or activity • Must request initiation of grievance procedure

  34. Jurisdiction • Page 25: “A recipient is only responsible for responding to conduct that occurs within its ‘educational program or activity’.” • All of the operations of a recipient • Includes academic, extracurricular, research, occupational training • Public lectures, sporting events, campus tours

  35. Jurisdiction • Page 143: • “If the conduct alleged … would not constitute sexual harassment … even if proved or did not occur within the recipient’s program or activity, the recipient must dismiss the formal complaint with regard to that conduct.”

  36. Emergency Removal • Can remove a respondent from the recipient’s education program or activity if: • Individualized safety/risk analysis • Determine that immediate threat to the health or safety of students or employees justifies removal • Provides the respondent with notice and opportunity to challenge the decision immediately following the removal

  37. Informal Resolution • Can be offered if institution provides written notice to parties of: • Allegations • Informal process • Consequences of participating in informal process • Must obtain voluntary, written consent from both parties

  38. Grievance Procedures • Must provide “due process” • References public vs. private distinction in some places but not others (see page 44) • Appears to require same procedures regardless of public/private (page 42)

  39. Grievance Procedures • Number of policy requirements, including: • Training for administrators • Review inculpatory & exculpatory evidence • Sanctions/remedies • Range of supportive measures • Presumption of non-responsibility

  40. Grievance Procedures • Standard of evidence: Preponderance of the Evidence (PE) or Clear and Convincing • If you use PE, it must be consistent for all types of misconduct for all employees, faculty, and students; • NOTE: Look to Faculty Handbooks, Academic Misconduct policies, CBAs, etc.

  41. Grievance Procedures • Must create an investigative report that “fairly summarizes relevant evidence” • Copy of the report must be provided at least ten days prior to hearing

  42. Live Hearings • Parties can ask other party and witnesses all relevant questions and follow-up questions, including those challenging credibility • Cross-examination done by advisor of choice • If no advisor, institution assigns someone to be aligned with the party to fill this role

  43. Live Hearings • “Rape shield” protections re: sexual history • Technology can keep parties in separate rooms • Decision-maker must explain to the advisor why certain questions are excluded as not relevant • If the person isn’t subject to cross, can’t consider their statement

  44. Written Determination • Must include a number of things, such as (page 65): • Findings of fact supporting the determination • Conclusions regarding application of policy to facts • Statement of, and rationale for, the result as to each allegation • Sanctions • Appeal procedures (if offered)

  45. Questions?

  46. NCAA and Title IX Trends

  47. PROMOTING COMPLIANCE NCAA REGULATIONS RE: TITLE IX PRESIDENTS, ADs, AND TITLE IX COORDINATORS MUST ATTEST THAT ATHLETICS DEPARTMENT AND STUDENT-ATHLETES HAVE BEEN TRAINED MAY 15, 2018

  48. Key Takeaways

  49. TRENDS IN POLICY KEY TAKEAWAYS SCOPE OF CROSS EXAMINATION: IS A “LIVE HEARING” REQUIRED? CONCERNS WITH CREDIBILITY DETERMINIATIONS (See Ohio State Cases) ADVISORS AND EXPERTS? • PROPOSED REGS WILL CHANGE POLICIES AND PROCEDURES (PLAN FOR TEMP. INCREASE IN COSTS) • PROPOSED REGS WILL REQUIRE HIRING/TRAINING (1) INVESTIGATOR, (2) TIXC, AND (3) FACT FINDER/HEARING COORDINATOR. • USE OF CONSORTIUMS (SHARED SERVICES AGREEMENTS, POOLS OF EXTERNAL SERVICE PROVIDERS)

  50. TRENDS IN POLICY KEY TAKEAWAYS SCOPE OF CROSS EXAMINATION: IS A “LIVE HEARING” REQUIRED? CONCERNS WITH CREDIBILITY DETERMINIATIONS (See Ohio State Cases) ADVISORS AND EXPERTS? • ASSESS CURRENT PROCESS AND NEED FOR HEARINGS (PLAN FOR TEMP. INCREASE IN COSTS FOR POLICY REVIEW/TRAINING/ETC.) • INCREASED FOCUS ON MEDIATION (TRAINING IS REQUIRED WHICH WILL INCREASE COSTS)

More Related