Title IX: Responding to sexual harassment and violence incidents
A senior administrator recently described the issues related to sexual misconduct as a dormant volcano that lies beneath main administration buildings on campuses across the country. This is a sentiment echoed by many administrators committed to successfully responding to issues of sexual violence and harassment, but sometimes uncertain how to get there. With prevalence rates high and reporting rates low, colleges face challenges in designing and implementing effective responses. But an integrated institutional plan can help.
The sad reality is that no institution, small or large, public or private, coed or single-sex, is immune to the impact of sexual harassment and sexual violence. These issues affect all of us, both individually and communally.
The misconduct we see on college campuses is only a microcosm of the issues that plague society at large. But, given that educational institutions are shaping our next generation of leaders, administrators have not just a tremendous opportunity, but also a legal obligation. We believe they have a moral imperative for creating an environment where sexual violence is not tolerated and to set the tone for compliant and compassionate responses, as well.
We know officials often feel as if they walk the tightrope of fair and impartial processes, strung between the Scylla and Charybdis of the Clery Act and Title IX, bound by FERPA and challenged by the media. But leaders have the tools to design integrated, coordinated institutional responses that effectively tend to the needs of campus constituents. These responses start with dedication of attention and resources. Schools must create a safe environment for constituents to discuss these emotional, often incendiary issues.
A coordinated and integrated institutional response to harassment or violence charges requires an understanding of the complicated regulatory framework: Title IX, the Clery Act, the Campus SaVE Act, mandatory child abuse reporting, federal guidance documents, voluntary resolution agreements and state law. This robust understanding will help those who oversee campus responses navigate the implications and permutations of this complicated field. It also will help implementers distinguish between areas where there are clear mandates and areas where colleges are left to exercise judgment in implementing effective responses.
A coordinated response
We recommend forming a Title IX team. Outline its roles and responsibilities and review first responder protocols. Articulate roles and responsibilities individually and collectively. Sequence the institutional response in advance of an incident, and draft internal operating procedures. Elements of an effective response include:
- A strong Title IX coordinator with experience, independence and oversight,
- Staff that is well-trained in student affairs, human resources, public safety and campus law enforcement,
- A uniform policy addressing all forms of sexual harassment and violence, stalking and intimate partner violence,
- Policy and practice that sets clear behavioral expectations for all,
- Consistent messaging in education and training regarding prevention, bystander engagement and individual and community responsibility,
- Integration and clarification of reporting responsibilities of employees,
- Clear delineation between confidential resources and reporting options,
- A centralized review process led by the Title IX coordinator and team,
- Consideration of interim protective measures for victims, remedies and support services,
- Integrated communication and coordination of information,
- Separation of support and advocacy from the investigative functions,
- Fair and impartial investigation and adjudication,
- The inclusion of remedies-based responses, and,
- Partnerships with local law enforcement and prosecutors as well as regional regulatory offices.
All of this must be supported by education for the entire community, an active effort to remove barriers to reporting and coordinated communication. Through commitment, competence, collaboration and coordination, administrators can exercise effective leadership and oversight of institutional responses.
Gina Maisto Smith and Leslie M. Gomez are partners in the White Collar Litigation and Investigations Practice Group of Pepper Hamilton LLP.
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