Campus Sexual Assault Update April 18, 2018
Kate Nash Missouri Moderator
If you need another copy of the PowerPoint slides: Open a new window Go to the ELA homepage Click the webinar title
Audio Webinar Documents Questions and Tech Support
Speakers: Kate Nash Tueth Keeney Cooper Mohan Jackstadt P.C. Missouri KNash@tuethkeeney.com Jeffrey J. Nolan Dinse, Knapp, & McAndrew Vermont JNolan@dinse.com Josh Salsburey Sturgill Turner Barker & Moloney, PLLC Kentucky JSalsburey@sturgillturner.com
Kate Nash Missouri
Overview & Trends
Jeffrey J. Nolan Vermont
Administrative Update
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
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
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?
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?
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
Investigations of Note Chronicle of Higher Ed Article: Education Dept. Stops Providing Details on Resolved Title IX Cases : https://www.chronicle.com/article/education-dept- Stops/242831 Department currently maintains broader, less detailed list: https://www2.ed.gov/about/offices/list/ocr/docs/investi gations/open-investigations/tix.html Chronicle still maintains Title IX Tracker : https://projects.chronicle.com/titleix/investigations/?ci d=t9widget
Josh Salsburey Kentucky
Litigation Update
Litigation Update Respondents litigation continues. What s new? What are the rulings? How should you adjust policies and procedures?
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.
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.
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).
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 1535495 (D.Md. 2018).
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?
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.
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).
Respondents Litigation Other theories: Deliberate indifference. Reverse discrimination. Selective enforcement.
Respondents Litigation Court abstention? Doe v. Univ. of Ky., 860 F.3d 365 (6 th Cir. 2017). Not yet adopted by other circuits.
What to Do? Update policies and forms: Adequate notice of allegations. Emphasis on equal rights for parties.
Jeffrey J. Nolan Vermont
Best Practices Update
Promising Strategies Example programs Primary prevention and awareness programs Bystander intervention programs Risk reduction programs Other promising strategies
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
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
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
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
Conclusions & Wrap Up
Speakers: Kate Nash Tueth Keeney Cooper Mohan Jackstadt P.C. Missouri KNash@tuethkeeney.com Jeffrey J. Nolan Dinse, Knapp, & McAndrew Vermont JNolan@dinse.com Josh Salsburey Sturgill Turner Barker & Moloney, PLLC Kentucky JSalsburey@sturgillturner.com
Recording, SHRM PDCs, & Certificate of Attendance To listen to this webinar again or to any past ELA webinars, please visit our website at: www.employmentlawalliance.com. This program is valid for 1 PDC Course Number: 18-6X27A Please visit www.shrmcertification.org to submit PDCs A Certificate of Attendance and supporting materials are posted on the ELA website (click this webinar s title; the link to the Certificate is on the landing page). Attendees seeking continuing education credit should submit these materials directly to the appropriate organization.
Tell Us How We Did!
For More Information If you have any questions, or need further information please contact: Brittany McKinski Webinars Coordinator Webinars@ela.law