Campus Sexual Assault Update. April 18, 2018

Transcription

1 Campus Sexual Assault Update April 18, 2018

2 Kate Nash Missouri Moderator

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4 If you need another copy of the PowerPoint slides: Open a new window Go to the ELA homepage Click the webinar title

5 Audio Webinar Documents Questions and Tech Support

6 Speakers: Kate Nash Tueth Keeney Cooper Mohan Jackstadt P.C. Missouri Jeffrey J. Nolan Dinse, Knapp, & McAndrew Vermont Josh Salsburey Sturgill Turner Barker & Moloney, PLLC Kentucky

7 Kate Nash Missouri

8 Overview & Trends

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12 Jeffrey J. Nolan Vermont

13 Administrative Update

14 Latest Dept. of Ed Moves Acting Assistant Secretary Jackson s June 8, 2017 memorandum to OCR regional directors: OCR will stop initiating system-wide reviews (and seeking three years of data, etc.) unless complaint implicates systemwide concerns Dramatic narrowing of scope of investigations Cases are being resolved more quickly

15 Latest Dept. of Ed Moves 9/22/17 Office for Civil Rights ( OCR ) Dear Colleague Letter: Withdrew 2011 OCR Dear Colleague Letter and 2014 OCR Q&A on sexual violence Announced formal regulatory rulemaking process Issued interim Q&A document General focus points of 9/22/17 Q&A

16 Latest Dept. of Ed Moves Institutional reactions to 9/22/17 Q&A? Largely wait and see (i.e.: show us the regs, please ) How are OCR regional offices referring to 9/22/17 Q&A in technical assistance and enforcement contexts?

17 Latest Dept. of Ed Moves Status of formal regulatory rulemaking: OCR has been gathering information informally from stakeholders Draft regulations? When will the proposed regulations be released publicly?

18 Latest Dept. of Ed Moves OCR issued new Case Processing Manual on 3/5/18 Highlights: Effectively immediately, even in pending cases Copy of complaint will be provided to institution upon request Extent of redaction remains an open question Contains extensive list of circumstances when complaints will be dismissed An appropriate amount of time will be given to respond to initial data requests Other highlights

19 Investigations of Note Chronicle of Higher Ed Article: Education Dept. Stops Providing Details on Resolved Title IX Cases : Stops/ Department currently maintains broader, less detailed list: gations/open-investigations/tix.html Chronicle still maintains Title IX Tracker : d=t9widget

20 Josh Salsburey Kentucky

21 Litigation Update

22 Litigation Update Respondents litigation continues. What s new? What are the rulings? How should you adjust policies and procedures?

23 Respondents Litigation Sufficiency of notice Heightened issue per OCR s September 2017 guidance: Once it decides to open an investigation that may lead to disciplinary action against the responding party, a school should provide written notice to the responding party of the allegations constituting a potential violation of the school s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview.

24 Respondents Litigation Sufficiency of notice (cont d): Sufficient details include the identities of the parties involved, the specific section of the code of conduct allegedly violated, the precise conduct allegedly constituting the potential violation, and the date and location of the alleged incident. Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation.

25 Respondents Litigation Sufficiency of notice (cont d): Sometimes notice is found to be insufficient. Doe v. Rector and Visitors of George Mason Univ., 149 F.Supp.3d 602 (E.D.Va. 2016).

26 Respondents Litigation Sufficiency of notice (cont d): But sometimes notice seemingly insufficient on its face can be enough depending on the respondent s level of actual knowledge and understanding about the conduct in question. Doe v. Loh, 2018 WL (D.Md. 2018).

27 Respondents Litigation Erroneous outcome theory: Pioneered in Yusuf v. Vassar College, 35 F.3d 709 (2 nd Cir. 1994). Allows some degree of challenge to the substantive findings of internal proceedings. Revival of a once-dying theory?

28 Respondents Litigation Erroneous outcome theory (cont d): Requires showing of: facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding, and a particularized causal connection between the flawed outcome and gender bias.

29 Respondents Litigation Erroneous outcome theory (cont d): Courts entertaining such claims, including federal courts of appeal. Doe v. Miami University, 882 F.3d 579 (6 th Cir. 2018).

30 Respondents Litigation Other theories: Deliberate indifference. Reverse discrimination. Selective enforcement.

31 Respondents Litigation Court abstention? Doe v. Univ. of Ky., 860 F.3d 365 (6 th Cir. 2017). Not yet adopted by other circuits.

32 What to Do? Update policies and forms: Adequate notice of allegations. Emphasis on equal rights for parties.

33 Jeffrey J. Nolan Vermont

34 Best Practices Update

35 Promising Strategies Example programs Primary prevention and awareness programs Bystander intervention programs Risk reduction programs Other promising strategies

36 Best Practices for Investigations Nolan, Jeffrey J., NACUANOTE: Promoting Fairness in Trauma-Informed Investigation Training Published by National Association of College and University Attorneys, NACUANOTE Vol. 16, No. 5 (Feb. 8, 2018) Available from college and university counsel, who can distribute NACUANOTEs to their clients

37 Best Practices for Investigations NACUANOTE: Promoting Fairness in Trauma- Informed Investigation Training Trauma-informed investigations were promoted by OCR and White House Task Force in the past Appears to be some current, but qualified, support from OCR as well Trauma-informed investigations can be fully fair to both parties Training on trauma-informed investigation approaches can emphasize ways to promote fairness, and result in more thorough, defensible investigations

38 Best Practices for Investigations Recommendations from Promoting Fairness in Trauma-Informed Investigation Training : Emphasize how institutions should and should not apply information about potential effects of trauma Emphasize neutral role played by college/university investigators Emphasize how to apply trauma-informed interview approaches in an even-handed, fair manner Emphasize that interviewing both parties for clarification is crucial

39 Best Practices for Investigations Recommendations from Promoting Fairness in Trauma-Informed Investigation Training : Model and promote a gender-neutral approach in trauma-informed training: Remember: colleges and universities are not anti-male ; they are anti-sexual misconduct, anti-intimate partner violence, and anti-stalking Emphasize the need for procedural fairness If institution s overall training program could benefit from the suggestions offered here, enhance the program accordingly with follow-up training

40 Conclusions & Wrap Up

41 Speakers: Kate Nash Tueth Keeney Cooper Mohan Jackstadt P.C. Missouri Jeffrey J. Nolan Dinse, Knapp, & McAndrew Vermont Josh Salsburey Sturgill Turner Barker & Moloney, PLLC Kentucky

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