hi my name is Aaron Lacey and I'm the
chair of the higher education practice
at Thompson Coburn LLP you are listening
to an introduction to managing title 9
sexual harassment on campus so that you
know Thompson Coburn is a law firm a
large one we have offices across the
country and we're all attorneys so the
folks who are participating in this free
training series for title 9
professionals and those participating in
the in the new title 9 process we are
all attorneys and practice at this law
firm we have a higher education practice
so the folks you'll be hearing from
either are part of that practice or work
with that practice on a regular basis
and today I'm delighted to be joined by
my friend and colleague a Scott
Goldsmith who I'll you'll see a picture
of him and just just a little bit we
wanted to tell you first though about
the purpose of this training series this
is likely the first in the series of the
videos that you'll be watching so as you
may know the US Department of Education
promulgated or published a new federal
regulation concerning title 9 that
becomes effective August 14 2020 and one
of the things that institutions are
required is to train the individuals on
campus who will be participating in
their title 9 processes on a go-forward
basis this training series that we've
created is what we'll call our are
calling a foundational training series
there's no doubt that you will want to
engage in some additional training of
your institution to look at and read
carefully and familiarize with your
institutions specific policies
concerning title 9 and we also recommend
things like simulations where if your
hearing officer you actually go through
a mock hearing or an investigator you go
through a mock investigation these six
training modules are designed to be
foundational training so for the folks
who are going to be participating in
this process as well as title 9
coordinators and in counsel who may
already have some familiarity we're
trying to help you understand the basics
of the new rule we say basics there's a
lot to take in that's why there are six
sessions but hopefully you can use these
something else will point out under the
new law institutions are required to put
all their training materials on their
external websites we are very happy for
institutions to use these trainings they
are free this whole thing was designed
among other things so that
schools wanted to use this training for
that purpose and to post it on the
websites they are absolutely welcome to
do so and if you'd like to talk to us
about some custom training of course
we're happy to talk to you about that as
well I mentioned earlier the series is
comprised of six different modules or
sessions if you will and each session
will show you this slide and the orange
box will tell you which session you're
watching and so if you're watching this
video you're currently as I mentioned
earlier watching introduction to
managing title 9 sexual harassment on
campus and this is the first session in
the series within this session we'll
also be providing are going through this
sort of outline and each time we start a
session we'll have what we call the
syllabus for the session so you can see
here the topics we'll be working through
today and that includes some
introductory material around title 9 and
the new rule and how it relates to
sexual harassment on campus and then
Scott will go into key definitions
responding to allegations of sexual
harassment on campus and the elements of
a sufficient response then we'll take a
little bit of time to talk about the
formal complaint and some other
additional considerations so I mentioned
earlier my friend and colleague Scott
Goldschmidt is with us today
Scott actually and this is an important
note for you all was the deputy general
counsel of Catholic University and was
in house there for about a decade and we
highlight that because we know for those
of you who are on campus that being on
the other side of these sessions and
having to really learn and implement
these new rules on campus is a difficult
challenging task and it requires a
certain perspective and Scott brings
that perspective it also helps that
while he was at Catholic University he
did a great deal in in the title 9 arena
from drafting policies to working
through investigations and hearings and
things of that nature and as I mentioned
I'm the chair of the higher education
practice at Thompson Coburn and have
been in and around colleges and
universities and working with them for
about 20 years including in areas of
discrimination so moving right along
let's talk about first the title 9
statute so now you see we're in the
title 9 fundamental section of the
presentation you know or some of you
will know if you
are an administrative law type person
that when we talk about the statute
we're talking about the laws that were
actually created by Congress so this is
the original statute that came out of
the house and the Senate back in 1972 as
part of the title 9 when we say Tata 9
we mean of the education amendments of
1972 and it generally prohibits
discrimination on the basis of sex a few
important points to make first of all
there's not a lot in the statute you may
have read in the press and seen a lot of
discussion around title 9 particularly
in recent years the statutory language
itself is pretty lean and that's why on
the next slide we're going to talk about
what the US Department of Education has
done in the way of regulations but what
is important to note about the statute
is that it is not limited to sexual
harassment it prohibits discrimination
on the basis of sex in all programs and
activities of an institution so you see
some bullets here and this is a really
important point because we're gonna talk
about and I have a slide in a minute
where you'll see and we'll be
emphasizing this throughout this entire
series
you know title 9 when you talk about the
big picture the statutory language
prohibits discrimination on the basis of
sex throughout the institution so if
someone were to come and say you know I
feel like this individual was promoted
over me and and I was discriminated
against based on my sex that that's
prohibited under title 9 but that's not
sexual harassment right it's a form of
discrimination on the basis of sex the
new rule is really focused on sexual
harassment and in particular formal
complaints of title 9 sexual harassment
so we'll get to that in a minute but the
key point I want to make right now here
at the outset is title 9 is bigger in
scope it prohibits all forms of
discrimination on the basis of sex at
the institution it's also important to
note it protects both students and
employees so for a very long time we
thought and you'll see the first bullet
here we thought about title 9 we were
primarily thinking most people about
equity in athletics right and and that
not only keeps us in that sort of
athletics bucket but it also tends to
get us thinking primarily about students
well title 9 does protect students and
it certainly applies to athletics as
well as other education and programs of
the institution but it also prohibits
discrimination on the basis of sex with
regard to your employees so it protects
and covers both student
and employees and one of the features of
this new rule is it has really
emphasized this idea that all of these
requirements around the management of
title 9 complaints on campus also need
to be adhere to even when the complaint
or the respondent is an employee we
wanted to go ahead and and let you know
now the title 9 statute is actually
pretty bare-bones
and you'll see at the bottom of each
screen here when we're talking about a
particular statute or regulation or some
commentary from the Federal Register we
include a citation for you if you were
to go to the citation in the United
States code for title 9 you might be
shocked at how little is actually there
there's the general prohibition on
discrimination based on sex and beyond
that there's not a lot of detail most of
the detail is in the title 9 regulation
which was created by the US Department
of Education the regulation and this is
often the function of regulations
amplifies the statute considerably so it
gets into all of that detail Congress
said we're prohibiting the
discrimination on the basis of sex at
colleges and universities now Department
of Education we want you to go and
expand on this concept right and so they
did that and if you were to look at the
regulation and that's in 34 CFR part 106
you see down at the bottom of your
screen there you'll find lots and lots
of information about what is
specifically prohibited and the
expectations of the department among
other things sort of the key concepts
that the Department for a very long time
has suggested are required under title 9
you have to disseminate a policy which
includes a non-discrimination statement
if they designate a title 9 coordinator
right adopt and publish grievance
procedures and so this is a process
right a complaint process or process to
resolve complaints that allows for the
prompt and equitable adequate reliable
and impartial investigation of
complaints and this is all in the
regulation these are sort of your core
obligations under the regulation as an
institution and then finally there's an
expectation that you have to take action
to address and prevent sex based
discrimination
of course the question becomes well when
you get into the details what is it
exactly that an institution has to do if
it's complying with these sort of 40,000
foot obligations and that's where we get
into a lot of the nuance that you're
gonna see
the rest of this presentation and in the
rest of the series I should say it's
also worth noting that the title 9
regulation well beyond just prohibiting
sexual harassment right prohibits
discrimination on the basis of sex and a
range of specific activities so if
you're a student for example in the
regulation and says look institutions
can't discriminate and admissions and
recruitment and housing and facilities
and counseling and all these different
aspects of the institution similarly
there is a section in the title 9
regulations that explains and expounds
on the particular prohibitions for
discrimination with regard to employees
so it says look if you're an institution
of higher education the regulation says
you can't discriminate on the basis of
employment or recruitment or
compensation or job classification or
employment criteria when we're when
you're thinking about your employees
once again that would be faculty and
staff so where does the new title 9 rule
come in and and you may have seen a lot
in the press there's been a lot of
conversation around that we wanted to
take you back a little bit and give you
some perspective by the way if you pull
down the slides for this presentation so
if you're listening right now you're
probably watching the video right but
you can also get the slides and if you
had the slides anywhere you see that
dark red underlined that's an active
link so we wanted to make sure that you
could access these underlying resources
if you're interested so if you are
counsel if you are a title 9 coordinator
or just a curious advisor or adjudicator
and you want to pull these resources
together this slide for example has a
lot of links where you can go and get
the underlying resources so in 1972 way
back when over 40 years ago that's when
the department created the title 9
statute talked about that a minute ago
and then three years later the
Department of Education promulgated
those regulations I was just referencing
where they got into all that detail
around the different types of areas
where institutions shouldn't be
discrimination discriminating on the
basis of sex what's interesting is
you'll note there's here in a huge jump
22 years to 1997 before you see any real
additional activity and it was at that
point for the first time maybe
surprising to some that the Department
of Education put out sort of a
meaningful
set of guidance and guidelines around in
particular sexual harassment on campus
which of course is a form of
discrimination based on sex so to be
clear you had over 20 years that went by
after those initial regulations were
created before the department got
particularly into this issue of sexual
harassment on campus after they put out
that guidance there were some
individuals who were at institutions who
felt like the the the college a
university based on the guidance was not
getting it done under title 9 and
remember this is important title 9
places obligations on institutions not
on students and their employees title 9
governs the institution and says the
institution can't discriminate on the
basis of sex so you had individuals who
were at institutions who said well I
don't think my college or university
complied with title 9 I don't think they
got it done at least with regard to my
particular issue and two of these
matters made it to the Supreme Court and
the Supreme Court considered the extent
to which individuals could bring a claim
and a private action and argue that
their institution failed to comply with
title 9 and the extent to which they
could recover some type of reward or
compensation based on the institution's
failure and the Supreme Court said yeah
there is a private right of action if if
colleges and universities fail to comply
with title nine individuals can bring
lawsuits and many of you are probably
aware of that because there have been a
number of lawsuits particularly in the
last four or five years that continue to
push and test the bounds of Title 19 and
and and push institutions to do more so
that was a 98 and 99 he had these big
two big Supreme Court cases 2001 right
around the corner the department says ok
now we've got these Supreme Court cases
and we've got these thoughts that came
from the justices so we're gonna go back
and issue a new set of guidance another
big document and it's gonna talk about
again what colleges and universities and
elementary and secondary schools frankly
covered by L and on what they need to be
doing to respond to sexual harassment
that may occur on their campuses and so
one of the things I wanted to point out
here is while the Supreme Court
decisions represent law the 2001
pamphlet which is significant was
labeled significant guidance by the
Department of Education which is a
concept in the photo
government when you have a really big
document like that though literally
label at significant guidance it was
guidance but it wasn't law right so that
it's not a statute it's not a regulation
it was still sub regulatory guidance
issued by the department and this is an
important point in 2000 2006 there were
a couple of additional pieces of
guidance that came out and then in 2011
the prior administration this is right
now it's July 2020 so when I say the
prior administration I mean the Obama
administration in 2011 issued a Dear
Colleague letter that really shook up
um higher education and elementary and
secondary education because it was an
again guidance but it offered a lot of
additional thoughts specifically for how
institutions should be managing and
responding to allegations of sexual
harassment or sexual violence on their
campuses and this was a wake-up call for
institutions around the country if you
were at an institution in this period
you may remember that certainly the
title 9 coordinators and the council's
at institutions were paying attention
because this guidance suggested that
colleges and universities should be
doing a lot more candidly than many of
them were doing back then rightly or
wrongly it was still more than what they
were they were doing and a lot of them
changed at that point and started
putting processes into place and
revising their approach to managing
allegations on campus at the same time
the Office of Civil Rights started
launching additional investigations some
of them quite high-profile
investigations of institutions so there
was a lot of discussion which is why a
few years later in 2014 the Obama
administration issued some additional
guidance because there are all these
questions that had come up since 2011
and colleges and universities saying you
know we need to know more if you're
gonna tell us we have to do all this
extra stuff then that raises a lot of
questions and we need additional clarity
on how we should be approaching and
complying with what you said in 2011 and
then finally in 2016 as the alcohol it's
sort of transgender bathroom debate
raged and you had its state's attorneys
general get involved in the
administration take a certain position
that some states didn't agree with the
department responded by issuing
additional guidance yet again on how
colleges and universities should be
working with and potentially
accommodating transgender individuals
on their campuses now you see I put a
yellow or gold box around those three
pieces of guidance and the reason I did
that and this gets to the idea of the
difference between statutes and
regulation and guidance you know is
because guidance
unlike statutes and regulation is not
subject to the Administrative Procedures
Act and what I mean by that is a
subsequent administration can't just say
we don't want to enforce a statute or we
don't want to enforce particular
regulations if they want to remove those
regulations or modify them they have to
go through the Administrative Procedures
Act which means they have to go through
a rulemaking and that takes a lot of
effort in time but it's really easy to
rescind guidance because it's not law
it's just guidance and interpretation
and that's what happened we got a new
administration in the current trump
administration and they said we don't
like all the stuff that was in that gold
box on the prior slide so we're gonna
take it off the books okay how does all
that bring us up to the point of our
presentation today well but all of this
is to say remember way back in 1972 we
had the statute and three years later we
had that regulation the fact of the
matter is since 1975 when the department
promulgated those initial regulations
there has not been any new meaningful
regulation law again regulation
governing sexual misconduct or
allegations of sexual harassment on
campus at least not under title 9 and
and why you had all this guidance that
that came out back in 2001 and then from
the Obama administration and even when
the Trump administration rescinded the
prior administration's guidance they
offered up some new guidance the fact is
none of that constituted law and the
reason I point all this out is because
it's to highlight the fact that this new
rule that goes into effect August 14th
2020 is actually the first significant
meaningful law from either Congress or
the US Department of Education governing
sexual harassment on campus really since
1975 so it's been over 40 years and and
it is a large and complex rulemaking the
unofficial version was over 2,000 pages
so there's a lot to parse which is why
we've got a six module training series
designed to help people
sort of
you're all out alright if you are
interested in seeing the new rule by the
way it's it's pretty easy to do you
could probably just Google you know
title nine to twenty twenty Federal
Register but if you have the slides
again the good news is we've created a
lot of links for you so where you see an
image like the one here that's got the
black outline around it looks like a web
page which it is a screenshot of a web
page you can just click on that image
and it will take you to the new rule
online on the federal registers website
okay so again I want to emphasize here
at the outset because this is really
important and it's going to be important
for you to keep in mind as you go
through the rest of these trainings and
as you go forward and serve as an
investigator adjudicator title nine
coordinator this concept this big
picture is always important to keep in
mind because it helps you understand
where the new rule really fits into the
context of the statute and title nine in
general right so we started out and
we're you're gonna see this graphic a
lot it comes up in every one of our
presentations just to remind people
right so the big picture
you've got discrimination based on sex
the statute prohibits discrimination
based on sex at colleges and
universities and pursuant to that
statute and the regulation you see the
site here echoes this general obligation
schools are required to adopt and
publish grievance procedures and
processes for managing promptly and
equitably any form of prohibited sex
discrimination so again just to be clear
someone says look I feel like I should
have gotten a promotion and this other
person got a promotion because that
person is a man and I'm a woman or vice
versa
that's an allegation of discrimination
based on sex and schools have to have a
process in place to equitably and
promptly manage that complaint or
allegation right so within that you've
got what I'm gonna call and we're gonna
call for purposes of this series title
nine sexual harassment right so the use
department in this new rule is really
focused on sexual harassment right so we
got the big bucket of discrimination
based on sex and then we have a more
specific bucket of unwelcome conduct of
a sexual nature that constitutes
sexual harassment and and Scott's gonna
talk about in a little while one of the
features of the new rules we have a
definition of sexual harassment now in
the title nine regulations which we call
in the biz title nine sexual harassment
and the reason we call it that is
because it might differ a little bit
from other definitions of sexual
harassment that appear in other places
in federal law like Title 7 Civil Rights
Act or in state laws right which you
will still have to comply with if you're
in a state that has a state level a sex
discrimination type statute which many
I'll say most do but anyway getting back
to our point here so you've got the
general obligation under title 9 to
address discrimination based on sex and
you have to have a process for doing
that right and now under the new rule
you have an obligation for addressing
what we call title 9 sexual harassment
and that ups the game a little bit
meaning there are some additional
requirements if there's a complaint made
and it constitutes title 9 sexual
harassment right then in an I should say
in an education program or activities so
this definition of title 9 sexual
harassment has some parameters around it
but if it qualifies you as an
institution have an obligation have a
process in place and to do certain
things and then within that we have this
really specific concept of a formal
complaint of title 9 sexual harassment
and in fact most of this training series
is focused on formal complaints of title
9 sexual harassment and most of the rule
is focused the new rule is focused on
the management of formal complaints of
title 9 sexual harassment so if you get
a formal complaint we're going to talk
about what that is later in this
presentation and in other subsequent
presentations if you have a formal
complaint then again as an institution
you have some very specific obligations
and and it's in the context of the
formal complaint of title 9 sexual
harassment that you're gonna have your
advisors and investigators and
adjudicators and title 9 coordinators
appeal officers all those folks really
get engaged right the title 9
coordinator may be involved in all of
these but the the remainder of those
roles you're probably owing to only
going to get involved significantly if
it's a formal complaint of title 9
sexual harassment all right so with that
I'm
turn it over to Scott to start you
through some of the key definitions
introduced in the new rule all right
thanks Aaron and I think best way to
start with that great overview is to
really just go over what change what
definitions were included in the new
rule that you should be aware of that
kind of sets the foundation of all the
expectations that the department has
both for title 9 sexual harassment in
general and also formal complaints and
here you see kind of a list of general
terms and I think we'll go through them
one by one
so the first and and clearly the most
important term is sexual harass and
you'll notice the orange signifies that
a term is important in warth kind of
paying attention to and here sexual
harassment as defined in the regulations
is conduct that meets any one of the
following bases so conduct on the basis
of sex that satisfies one or more of the
following so the first is is unwelcome
conduct that's soap Revere severe
pervasive and objectively offensive that
it effectively denies a person equal
access to the school's education program
wreck ship so just unpacking this really
briefly here the conduct must be
unwelcome to the individual as the
subjective element has but the
definition also makes clear that a
reasonable that it has to be determined
by a reasonable person but there is a
layer of objective analysis well and
just note that that it's the beer
pervasive an objectively offensive is it
and and that in horse all three must be
meant to meet the problem the second
prong is is I guess is referred to as
quid pro quo harass so if this then that
so an employee at the institution
conditions sexual act behavior etc on
the individuals participation in
unwelcome sexual conduct so very brief
crude example a professor says I will
give you a extra credit in your
assignment if you go to dinner with me
in Herman
that could be quid pro quo harassment
and the last part of the definition is
offences that the department is said
just constitute per se sexual harassment
so sexual assaults dating violence
domestic violence or stalking are also
all elements of sexual harassment as
part of this definition that would
trigger an institution's obligations and
just to back up a little bit some
context on the basis for the new
definition so this is explained in more
depth in the preamble but the
department's of Education in
administration's past have taken the
position that the Supreme Court
standards that Aaron mentioned the
standards and gebser the standards in
Davis don't apply to the department's
interpretation and promulgation of the
rule and and they've said they're their
policies and standards of course this
administration's taken a different path
and they said we still have this
discretion and we're going to use it a
little bit but for the most part we're
going to just build upon the established
foundations at the Supreme Court track
the definitions for most part in gaps
are and in Davis one of the main reasons
for that is is because in the
department's view it doesn't make sense
if your college or institution have two
different standards depending on if
you're in front of the department
education or OCR so here by kind of
harmonizing the standards and have one
standard both in the federal consents
and for the department sense an
institution kind of has one set of
obligations they need to to adhere to if
the challenge of
so just to kind of button up a few
clarifying questions about the
definition so will this definition
prohibit all harassing or offensive
remarks and here we're looking at the
first prong of the definition and the
answer is going to be no so remember
under that first prong unwelcome concept
contact conduct must be severe pervasive
and objectively events so for example if
you have one really objectively
offensive joke that's told by an
employee at the institution that's sure
not acceptable but does it meet severe
pervasive and objectively offensive
maybe not so it might not meet title 9
sexual harassment but as we'll discuss
in this presentation and reiterate many
times throughout the series just because
it's not covered under this specific
rubric doesn't mean schools cannot
address it either under a Honda try
manual ER or any-any adjudication
process the school has and and for a lot
of reasons schools will want to address
this and some and so second does the
second two elements quid pro quo
harassment and the Clery valo offences
and by Cleary Volvo we mean sexual
assault dating violence domestic
violence stalking those offences there
and we call them clear evolve up because
they're defined under the statute so
under prongs two and three of the
definitions do they have to be severe
pervasive and objectively offense and
the answer here is no only the first
prong and welcomed conduct prong needs
to meet this severe pervasive and
objectively offensive the department's
explained that a victim of quid pro quo
harassment or sexual assault dating
violence domestic violence stalking has
been effectively denied equal
educational equal access to education
even based on one incident and it would
be sufficient to meet the definition
under next a few definitions to to go
over and to the extent that you've been
familiar with title nine processes in
the past this is a review but to make
sure we're all on the same page the
complainant here is the individual
alleged to be the victim
conduct that could constitute extra crap
so here again we'll explain this a
little later any person can make a
report of sexual arrests and and that's
fine and the institution may or may not
have applications based on that report
but to be a victim of to be a complaint
it you have to be the victim of the
conduct that's just the way the term of
arts use here a respondent is the
individual who's been reported to be the
perpetrator of the conduct that could
constitute sexual harassment so in
education they'd be the person that is
charged with the central violation of a
code of conduct or policy and and
consent we wanted to highlight because
as important that concept as consent is
the department's made clear that the
regulations are not going to provide a
definition so this is up to the
discretion of the schools with the
important caveat that some schools have
state law requirements to apply a
particular definition or set of
standards so obviously if you have a
state law requirement please file your
state law requirement but for every
other school there's really a broad
latitude to develop a definition
acceptable to use the definition that
you previously had in your policy if you
liked it or if you didn't like it time
to rethink your policy but a few things
to potentially consider you know you
know consent definition and you want to
have a robust definition because this
could be the crux of a lot of sexual
smell complaints but whether your your
definition is predicated on words or
words and actions whether it's an
affirmative consent standard whether
there's definitions for an explanations
of when consent is not acceptable such
as when a potential complainant is
intoxicated and just kind of a examples
of what could and could not constitute
consent to guide your adjudicator I'll
jump in here too and just offer some
folks who are perhaps new to the title 9
process if you're an advisor or an
adjudicator or some other individual
that's been asked to participate in this
process maybe even for the first time
you may be listening to Scott and some
of the
concept and saying boy I mean am I
supposed to go figure all this out and
my response to that would be probably
not right I mean the idea is your title
9 coordinator your HR department and
your counsel inside and outside are
looking at these same rules and they are
crafting and thinking through what your
institutional policy should be and how
you're gonna deal with some of these
things so if you're in a particular
state they may already have a definition
of consent in their title 9 policy that
complies with the state law and that's
the way it will stay and nothing will
nothing will change it maybe they
already have definitions of complaint
and respondent and they're updating them
to ensure that they're clear and
consistent with the new law here under
title 9 but they may already be there in
some format and already have some
discussion around well what happens if
we have someone report who's not
actually the complainant and you know
but a reporter and how do we treat them
and how are our policies going to work
if we have sexual harassment that
doesn't fit in the title 9 definition
but our institution still wants to
address the good news is the good news
is many of you watching this aren't
responsible for making those decisions
and figuring those things out what you
are responsible for is making sure that
if you're a participant in this process
you review your policy very carefully
right so again this is foundational
training our objective is to lay a
foundation and make sure you understand
what the new law says how it has sort of
come about in the context of the title 9
conversation in some of our later
sessions we're gonna have some great
feedback from career investigators and a
longtime judge on things like making
relevance decisions and dealing with
advisors etc so it's it's all great but
there's no substitute for studying your
own policy because a lot of this will be
thought through carefully by your
counsel and your title 9 coordinator so
we encourage you again if you if you
decide to watch all these sessions we're
delighted but even after you've done
that you absolutely have to take time to
review those policies and look through
and make sure you understand where your
institution has landed on these various
issues that's like that's a great segue
and we're certainly not trying to scare
anyone here trying to demystify the
process as best we can but moving on
from
definitions let's talk about
responsibilities and how to how
institutions respond it's hella
non-sexual grassman's so as you can see
there's a lot of a lot of orange here a
lot of a lot of important concepts and
some of these will be discussed here
others will be the best other
presentations but just briefly so an
institution must must must must respond
to sexual harass with or without a
formal complaint which we'll talk about
later but a formal complaints Peggy
first when the student has actual
knowledge of the alleged sexual
harassment an actual knowledge is a
defined term that is very important that
we'll discuss
second the alleged sexual harassment
occurred in an education program in our
activity the school again another term
of art that's very important to the
definition and third the alleged sexual
harassment was against a person
physically located in the United States
so let's talk about actual knowledge so
actual knowledge is the standard that
the Department has said exists to show
when an institution is on notice of a
potential complaint the school does not
have actual knowledge it doesn't have
notes so actual knowledge means notice
of sexual harassment or allegations of
sexual harassment made to a title 9
coordinator so that's pretty self
hopefully self-explanatory or to an
official of the school who has authority
to institute corrective measures on
behalf of the institution so we as a
shorthand we're calling these
individuals individuals with authority
and if a type either a title 9
coordinator or an individual with
authority has notice of sexual
harassment the school is considered a
textual knowledge
a couple things and we discussed this
earlier who can make a report any person
so the regulations are very clear this
includes by standards anonymous reports
parents actual complainants anyone can
make a report to the institution this
important concept of official with
authority so who is an official with
authority it's going to differ between
institution institution so it's a
fact-specific determination so the
preamble that we referenced earlier that
kind of preface to the regulations that
gives the department's thinking on
certain issues you'd identified that
possibly at your institution supervisors
would be authority possibly Dean's would
be officials with authority but it
really is incumbent on the institution
to to take a step back and determine who
at the school would be an official with
authority but what you don't want is to
have a situation down the road where
this has not made clear there's an
argument over who's an official of
authority because they're very important
once you tell an official with authority
and the school has noticed so it's
really important to detail who that
person is set that expectation out to
your campus community and we absolutely
recommend prior to the regulation prior
to your policy or the same time as your
policy to publish a list and just say
along with your title 9 coordinators
here are officials with authority that
you can go to to provide the school
actual notice so next we're talking we
want to talk about which individuals
must report sexual harassment the title
9 court
so other than title 9 coordinators other
than officials with authority who has to
and for those that have kind of been in
the process for a little bit this sounds
a lot like the old conception of
responsible employees and but the
department says here is is the
institutions of wide latitude to make a
determination that they feel it's
appropriate so they're not going to have
a responsible employee concept because
the new standard is actual notice to
officials with authority or title 9
coordinators but by policy institutions
may want to have a mandate that certain
individuals have to report notice of
title 9 to to decide on a coordinator in
addition it's important to note that
certain state laws have requirements
that either prescribe that certain
people must be report sexual harassment
or all employees report sexual
harassment so it's important to to look
at state law as well as you're crafting
this analysis
so the second important prong that we
talked about we discuss is an education
program or activity so for title 9
sexual harassment to occur it has to
occur in an education program where
active and that's that includes
locations events or circumstances over
which the institution exercised
substantial control over both the
respondent and the context in which the
sexual harassment occurs the department
also makes it clear that this includes a
building owned or controlled by a
student organization that's officially
recognized by the post-secondary
institution so this I think this clearly
was meant to to cover Greek life Greek
housing that may be off-campus but is
potentially owned or controlled by the
institution but it really would apply to
any building that would meet this this
criteria again determining an education
program or activity is a fact-specific
inquiry that will change based on your
institution so the key questions to ask
or whether you exercise substantial
control over the respondent and the
context in which the incident occurred
so to the extent that these that you can
take to do this analysis prior to
situation we absolutely encourage you to
kind of figure out what would be
considered your educational program or
activities so there's no question about
where the title 9 sexual harassment
jurisdiction starts and stops as Erin
said there's also specific trainings
that tools must do for for school
specific policies and this would be a
very important thing to train on what is
your institutions program right you
Scott before we get to this last
question I see here that starts to get
into some I think my next question you
actually leads into the last question on
the slide and it is you know we're
talking about these parameters that show
up in the definition of sexual
harassment or title 9 sexual harassment
to be really clear and you've already
alluded to but maybe it's good to talk a
little more now about this idea that
there could very well be sexual
harassment
that occurs and is reported to you that
falls outside of this definition of
title 9 sexual harassment either because
it's not in a programmer activity or
because it's not doesn't rise to that
severe and pervasive criterion or level
or as you're about to speak to in a
second maybe there's a combination of
activity and some of its on chemist's
and some of its off and then I think
it's on the next slide but you know the
last criterion we saw earlier was it has
to be involve first a person physically
present in the United States all of this
sort of gets at this idea that there may
be episodes of discrimination on the
basis of sex and even specifically
sexual harassment that just don't fit
into this box of title 9 sexual
harassment and so it seems like schools
are gonna have to figure out from a
policy perspective how to manage that
and they're gonna have to make decisions
regarding you know whether or not they
just want everything title 9 sexual
harassment and non title 9 sexual
harassment to be covered under a single
process or whether they want to design
different processes etc what kind of
things would influence a school to
choose one direction over another when
thinking about how to design their
policy structure ya know that's a great
question and I suspect a lot of people
watching this who is this is the
question they're grappling with now this
this procedure that we're really talking
about and stressing is fairly specific
and only cover certain things it's clear
that institutions very much will want to
cover a broader sense than that and will
not want to just stop at the bounds of
title 9 because it's it's it is pretty
limiting and and a lot of defensive
conduct and potential violations that a
school would want to address are just
not covered by the regulation so just
broad strokes schools have a couple
options here so the first as you alluded
to is is to just take the policies and
procedures that we're spending a lot of
time to by drafting and a lot of time
going over and just kind of put
everything in the bucket they even if
it's not
title nine sexual harassment by the rule
for the purpose of our process we're
going to treat it as such we're gonna
give it the full formal complaint
process that we're going to go through
later the pro that is it's it's simpler
it ensures sufficient process for for
individuals going through regulation but
as the con is these these provisions
that we're going to discuss and go
through and six sessions are fairly
onerous to the extent that schools will
not want to address things that are not
covered under the definitions in such a
robust way schools may not want to put
them through that whole process and
that's absolutely acceptable
so another thing schools can do is is
kind of bifurcate say here is my title
nine sexual harassment process all the
trimmings that are going to talk about
that are required by law by these
regulations but if it is sexual
harassment that's just severe and not
pervasive or as you have mentioned to it
occurs outside of the country we're
going to treat it under under this
bucket with this process where there's
no defined rules except back to our
first foundational slide there has to be
a grievance process to address it
because it very well could be
discrimination based on sex so these are
not easy decisions
it is not a clear-cut case there's pros
and cons of each way
it's just something schools are gonna
have to to consider ya know I'll just
add to that even beyond as you look at
and learn about this new title nine
process and as Scott mentioned you it's
very involved even but but involved
doesn't necessarily mean better and the
one thing I want to add is it's also
entirely possible and I think likely to
some schools will look at the new title
nine process and say you know it is
involved but we don't think that makes
it better there are elements of it that
we actually think are problematic and
put you know respondents and
complaintants in situations and dynamics
we don't like we don't like what it
requires around advisors we think that
could actually be detrimental to the
process so not only are we going to
a separate process for non-title 9
sexual harassment because we want
something that we think is potentially
simpler and easier to administer but we
actually think we have a process over
here to the side that is better so when
we're not required to follow the title 9
process we're gonna actually follow our
process again not only because it's
simpler but because we think it does a
better job and that's that's a
legitimate place for schools to land and
I have no doubt that there that there
are people out there who will come to
that conclusion so a lot of a lot of
factors in place kotte as you pointed
out when folks are thinking about how to
structure these policies and all the
more reason I'm gonna keep saying this
over and over all the more reasons that
the folks listening and need to make
sure to read your schools policy very
carefully
yeah that's a great point and just just
to kind of button up the last question
I'm a slide disgusted already so if
there's a kind of a split situation
where an activity sexual assault
occurred outside an education program
charity but there's later sexual
harassment that occurs inside program or
activity title 9
strictly speaking would only cover what
happened in the educational program or
activity that being said depending on
your policy it sounds like you
absolutely for certain cases would one
we want to address it it's just how best
to do it and it's a complex kind of set
of analysis to figure out the best way
to do it
and the last prong we talked about is
physical location so here that the
limitation of title 9 and the statute is
the complaint must be a person
physically located in the US and here
the department's just kind of said hey
we acknowledge that this is this is not
going to cover a lot of individuals in
common situation so if you have a if
your institution sponsors a study abroad
program and an assault takes place
abroad this absolutely this process
would not cover it now with the school
want to address that yes absolutely but
it would not be title 9 sexual
harassment as such under under this just
one quick note though it appears those
sexual harassment perpetrated online
against an individual physically present
physically located in the US and be
covered even if the perpetrator was
located outside the country
so moving along when a school has notice
of sexual harassment what does it have
to do to respond what's a sufficient
response so here institutions must
respond promptly and in a matter that's
not deliberately indifferent that's a
key term of art that won't so the school
is not deliberately a school is
deliberately indifferent only if its
response to sexual harassment is clearly
unreasonable in light of known
circumstances so deliberate indifference
is a standard set by the Supreme Court
in the case as we discussed earlier and
the department's adopted that standard
as well for for its analysis so schools
have to be deliberately indifferent in
order to to violate title 9 it's a high
standard but there are certain ways that
it's certainly possible to meet a
deliberate indifference standard that
schools should not use that as kind of a
crutch to say it's too high I'm never
going to be found to violate this
because it's just such eyes and so the
proposed rule the Department offered
detail on what conduct of order would
not constitute deliberate indifference
so the final rule doesn't include that
language but as we'll discuss in the
next few slides there are elements of
the final rule that Department does
point out its constituting a sufficient
response and theoretically an
institution may be deliberately
indifferent if it does not follow these
so some of those include the title 9
coordinator promptly contacting the
complainant to discuss the availability
of supportive measures the title nine
coordinators consideration of the
complainants wishes with regard to
supportive measures the coordinator
informing the complainant of the
availability of supportive measures so
regardless of whether a formal
complaints filed and explaining the
complaint process for filing a form so
hopefully these elements are things that
your institutions already already doing
in some fashion earlier and this is just
a refresher and extra emphasis to get
this part so next the final rule
specifies the school's response must
treat complainants and respondents
equitably equitable treatment is a big
part of the regulation the preamble it's
a big thrust of it so everything
complainants and respondents have to be
treated the same and here we're talking
about by offering supportive measures to
a complainant and by following a
grievance process before the imposition
of disciplinary sanctions against a
response here these are specific terms
called out in the regulations and
potentially not following these could be
evidence of deliverance
so as we said earlier it's not it's not
a crutch here it's not an insurmountable
standard so does deliberate indifference
relieve recipients of their obligation
to respond to every known allegation of
sexual harassment no standard doesn't
institutions should absolutely respond
as I'm sure every institution would we
want next in the absence of a formal
complaint so where are there
circumstances where an institution would
initiate a grievance process against the
respondent to avoid being delivered and
the answer here is yes so if a
complainant
if there's no complainant there to to
file a formal complaint against
respondent there are absolutely
situations where a school would want to
consider whether whether they would want
to initiate a grievance process in order
to meet its obligations under title 9 so
the preamble explains a few of these
threats violence weapons could be but
but most significantly a serial predator
so to the extent that a complainant
comes to a title 9 coordinator and says
I want supportive measures but I don't
want to file a formal complaint
that's one analysis if two three four
complainants come with the same
respondent and don't want to file a
formal complaint that's a different
analysis and that may require filing the
title nine coordinator kind of taking
matters into its own hands
in order to ensure a safe and
non-discriminatory environment for for
students if a serial predator does exist
under campus interim and supportive
measures we've grouped these together
but they're really different concepts
when we're talking about interim
measures we're talking about things that
an institution might do not to support
the complainant or respondent but more
although frankly interim measures could
be taken for that purpose I guess but
what we're really talking about is
removal and administrative leave right
and this happens if you're an
institution at an institution and you've
been in the title nine process for a
while or you're in HR vertical everyone
ultimately has a situation where
before they're able to go through the
investigation and hearing process and
reach some determination on whether
allegations are true they may feel like
for various reasons they need to remove
someone from the campus and what the new
rule says is there is an allowance for
that right and and Scott mentioned
earlier this new rule this
administration was very focused on in
their view creating more balance between
complaints and respondents and they're
very committed to this idea of not
penalizing respondents until that
investigation and hearing phase that
formal process has been completed but
there is a recognition that there could
be situations where removal or some sort
of administrative leave is appropriate
and necessary so what this
administration says is you can do it
that's what the new rule says but if you
are going to do it you need to make sure
that you are following certain criterion
and and and the criteria here the school
has to undertake an individualized
safety and risk analysis so you can't
have the blanket policy that anytime a
certain situation arises you're going to
send somebody home it needs to be a
specific analysis of the circumstances
at hand if the institution determines
that an immediate threat to the physical
health or safety note emotional health
and safety is not included our mental
health and safety it's strictly the
physical health and safety of any
student or other individual arising from
the allegations of sexual harassment and
importantly that's an and it's
conjunctive so all three of these have
to be satisfied and the institution
provides the respondent with notice and
an opportunity to challenge the decision
immediately and our advice is if you are
considering sending somebody home or
removing them you should already have
some sense as to what that challenge
process is going to look like so that
you can notify them and make sure that
you can run the challenge process
efficiently you don't want to send them
home and then weeks or months to go by
before they have an opportunity because
they're being harmed right I mean
they're not able to work they're not
able to attend school there are it is
punitive in that sense so you need to
afford them their opportunity under the
law to challenge in a timely manner an
institution would be permitted and this
is also specific in the new rule to
place a non student employee respondent
mean
when you say non-student point we mean
if you have a work-study student for
example they might be an employee but
they are a student employee so we're
talking about strictly non student
employees can be put on administrative
leave during the pendency of the
grievance process Scott you keep
flashing in so much going on there in DC
for folks for folks on the line I mean
I'm in the Midwest I'm in st. Louis
Missouri and Scott is in our Washington
DC office we are I mentioned earlier
this is July 2020 so we are operating
under and still amidst the pandemic and
so we're operating out of different
offices and in some cases out of our
homes it's got a couple of good
questions here that were raised around
these interim measures that I will
actually shoot to you would be
interested in your thoughts sir
absolutely so we are in the first one
just just to build off what you said in
the last slide so I think you correctly
mentioned that you should really have an
idea of what your challenge process
looks like prior to undertaking this and
I just like to add you should also have
a process of what your your analysis
process it should be prior to
undertaking it you don't want to be in a
situation where there is the need for
removal and then kind of be scrambling
to figure out what what to do and a lot
of schools have a threat assessments
teams and include Police Council and
until health student service is all in
one environment but worth doing what
you're in what works well for your
institution and also just to make sure
you have a process where that's clear
and clear who makes the final decisions
here so when you have that process and
you figure out what what do you need to
do here I think is Aaron alluded to
having a generalized policy having
hypotheticals specular beliefs it is not
sufficient here so this is a this is a
this is an important measure to have but
it's a fairly involved one and it could
be problematic for the for the students
so you want to make sure there's
something that that you could have
that's individualized some analysis that
you own something to point to especially
if you receive a challenge
or at least to reinstate the student and
one other point that we thought was
helpful to note so the regulation
mentions that the individual has to
challenge their removal immediately the
Primo pres alyttle guidance here
basically says it really depends on the
facts but generally understood is
occurring without delay as soon as
possible given the circumstances so
we're not talking about within minutes
here but we are talking about something
before before days or certainly weeks to
happen so you want to make sure you have
that ready to go if you have to take
this step so a couple other questions
and then I'll get to supportive measures
but what about self-harm that's tricky
business Scott really is tricky and it's
important to note that but I don't 9
regulations do you permit self-harm to
be a ground for emergency removal when
the threat arises from allegations of
sexual harass ear is to remember that
you also have obligations to consider
and comply with under the Americans with
Disabilities Act so the a DA's version
of this their direct threat language
refers to a direct threat to the safer
the safety or health of others and the
ATA does not clearly encompass so far so
just flagging the issue if you do get
into a situation with self-harm there
could be tension between the two you're
obligated to comply with both so just
make sure you really do a thorough
analysis under both laws to make sure
that you're not discriminating against a
person based on one of the other second
just to make clear I think we're talking
we talked about emergency rule the
classic of students Aaron mentioned this
also is available for employees under
administrative leave and the regulations
and the crambo make clear that the same
due process protections that students
receive with respect to emergency
removals are available for employees if
they were put on administrative leave
for the same scenario
right so supportive measures we talk
about inner measures we're really
focused on this idea of sending somebody
home right before you got through the
investigation and hearing supportive
measures are something that are owned
really by your title 9 coordinator but
it's good for everyone in the process to
know what we're talking about so as soon
as an institution has actual knowledge
of sexual harassment even if it's not a
formal complaint scenario remember we're
not actually to formal complaint yet so
we're just at the point now where an
institution has that actual knowledge of
title 9 in this case Tao 9 sexual
harassment and a title 9 coordinator is
obligated to and in our experience is
very happy to try to provide the parties
with supportive measures what do we mean
by that non-disciplinary non-punitive
individualized services that are offered
as appropriate and as reasonably
available so there is this reasonability
standard for institutions this isn't
like an accommodation discussion under
the ABA exactly right but there is an
expectation that if it's reasonable and
it's non-punitive the institution will
offer these supportive measures to these
students able without for your charge to
complain or respondent right and and at
any point before or after the filing of
a complaint or even where no complaint
has been lodged such measures what's the
point such measures are designed to
restore preserve equal access that's the
what the new rule says I mean in a more
practical way of speaking it's you're
trying to make folks comfortable and
protect one another and keep order right
while you go through whatever remaining
process you're going to go through
whether that be an informal resolution
which we'll talk about in a later
session whether that be through your
formal investigation hearing but you've
had an incident that's occurred you've
got an allegation that's been made and
if you're not going to send people home
there are a lot of things you may want
to do to make sure that they can
continue to enjoy and take advantage of
your educational programs and activities
while you work through the remainder of
this process and in a safe and
appropriate way right so supportive
measures can accomplish a wide range of
things the ID
is that the supportive measures should
not unreasonably burden the other party
remember again this administration is
really focused on trying to treat both
parties equally so in the past there
were circumstances where institutions
might put in place a supportive measure
that could be viewed as punitive toward
a respondent so in other words you know
we're gonna make the respondent take
night classes instead of day classes or
only come to campus on the weekends
which could be a significant burden for
some respondents and more than more than
reasonable right and this administration
said look if if you haven't been through
the process if you haven't made a
determination as to whether the
allegations are true you should not be
putting into place measures that while
potentially supportive to the complaint
nonetheless are punitive toward a
respondent and so this administration
has really emphasized that while
supportive measures are certainly
appropriate and in fact that institution
shouldn't undertake them the big shift
here with the new rule is that you have
to be careful not to unreasonably burden
either party it's not just respondents
either party so if you got to make a
change with regard to class schedules
you need to try to do it in a way that
has the least punitive impact on one
party or the other as is reasonable
impossible there are no doubt going to
be circumstances where an institution
goes out of its way and one party or the
other party or the other still takes the
view that the burden is unreasonable but
as an institution you just have to do
the best you can keeping in mind the
standard examples of supportive measures
we've got a whole screen of them here
and any title 9 coordinator that's been
dealing with in this role for long is
going to be familiar with all of these
and others if you're new to this please
just understand that these are the kinds
of things that the school and the title
9 coordinator are often going to be
working through and trying to provide
for students whether that be a complaint
or respondent and employees as well some
of these would apply in the employment
context so counseling changes in work
locations or class locations those types
of supportive steps confidentiality so
there is an expectation that
institutions will maintain as
confidential any supportive mesh
they put in the place to the extent and
this is important to the extent that
maintaining such confidentiality would
not impair the ability of the school to
provide the support of measure so in
other words what they're saying is look
sometimes you can't put a supportive
measure in place without other people
knowing right I mean if you're trying to
support a complainant and the solution
is to slightly change the respondents
class schedule or the respondents going
to know as as are the respondents
teachers and classmates and others and
what the department is saying is look if
you know sometimes we put in place to
support a measure other parties are
gonna have to be aware that that measure
has been taken doesn't mean you tell
them about the underlying allegations or
complaint but they're going to at least
be aware that that individuals class
schedule has changed and the department
is saying that's okay right that's okay
because otherwise you wouldn't be able
to do anything really in the way of
supportive measures but but apart from
that you should try to maintain
confidentiality and if you're not a
title 9 coordinator but otherwise
involved in this process as an
investigator or adjudicator etc just
keep in mind these concepts of
confidentiality sort of remain in place
throughout the whole process there's
always an overriding expectation that to
the maximum extent possible
confidentiality will be maintained
finally as stated previously it really
is the title coordinator title nine
coordinator that owns supportive
measures and is working in conjunction
typically with HR or Student Affairs and
Council to decide what what measures
should be put into place as well as the
parties I should say alright formal
complaints so remember we had earlier
the big graphic and we had at the
largest level any kind of complaint of
discrimination on the basis of sex and
then we moved in we had complaints of
title 9 sexual harassment and then we
had that orange box and we said now
we're talking about formal complaints of
title nine sexual harassment everything
we've talked about to this point in the
presentation largely has a has applied
and would apply when you get any kind of
complaint of title 9 sexual harassment
remember Scott talked about what's the
definition title nine sexual harassment
what do we mean when we talk about
what's a sufficient response we talked
about interim and supportive measures
etc now we're we're closing in we're foe
kissing on that orange box and we're
talking about you know what is a formal
complaint of title 9 sexual harassment
because recall it's gonna be the formal
complaints that really trigger all that
machinery that's present in the new rule
and in which many of the folks we assume
who are listening in today are going to
be participating so there's a very
specific definition a formal complaint
of title 9 sexual harassment means a
document filed by a complainant or
signed by the title 9 coordinator
remember Scott talked about situations
where a title 9 coordinator like where
you have a serial predator might
actually end up signing signing the
document but it means a written document
right a physical document filed by a
complainant or signed by the title 9
coordinator alleging sexual harassment
so there has to be that allegation
against the respondent and requesting
that the school investigate so it's got
to be in writing it's got to be by
either the complainant or the title 9
coordinator and it's got to be alleging
sexual harassment and requesting an
investigation so those are the elements
of a formal complaint and again you may
have complaints of sexual harassment
that fall outside of this and you still
have all those obligations we discussed
earlier and you may still put interim
and supportive measures in place
excetera et cetera but if you get a
formal complaint then you move into that
orange box and you've got that whole new
machinery with which you have to comply
by the way the phrase document filed by
complaint in the department does talk
about that it means a document or
electronic submission so it doesn't have
to be a physical I said a physical
document doesn't actually have to be a
piece of paper signed it could just be
an email right from the complainant that
satisfies those other required criteria
and and to be clear and the Department
notes a formal complaint can be filed
with the title 9 coordinator in person
by email or by electronic mail but an
oral complaint at least under the new
rule does not constitute a formal point
right I mean it has to be a document
submitted to the title 9 coordinator
that has the other elements we discussed
earlier the other thing that we should
notice at the time of the filing of the
formal complaint the complaint that's
the person remember in our definition
who is alleged to be the victim of the
or is the victim of the alleged sexual
harass
the complaint has to be participating in
or attempting to participate in an
education program or activity and the
department sort of justifies this
limitation by tying it back to title
nine and the notion the title nine
prohibits sex discrimination in programs
or activities so they're saying so you
know complaint has to be involved in
those but remember as Scott and I have
discussed previously you could still
have a policy that would extend to and
provide relief for individuals who are
subjected to sexual harassment even when
they're not participating in a program
activity it just wouldn't be title nine
sexual harassment and it wouldn't be a
formal complaint with title nine sexual
harassment it would have to fall under
that alternative process let's see the
last thing I want to I just want to show
you you're gonna see this chart quite a
bit so the department says if you have a
formal complaint of title nine sexual
harassment then there are certain things
you have to do but primarily you have to
comply with all of these requirements
that are set out in a new rule and
specifically you'll see the citation at
the bottom of your page by the way I
should have highlighted earlier
throughout the presentation we have
where appropriate we actually have the
legal citations at the bottom so most of
this machinery is located in 34 CFR 106
45 106 point 45 and if you have a formal
complaint then your process that you put
into place has to have all of these
elements and that's really I mentioned
earlier that's really what this new rule
is about it saying when you've got a
formal complaint you've got to have a
policy on the books and your policy has
to include all of these different
elements right and there's a lot to it
so the rest of our training sessions the
the next five modules that you hopefully
you'll go through and that we're gonna
present and make available really are
focused on walking through these
different elements you see on the screen
right now so we've got a presentation
where we'll talk about you know these
core requirements and dismissal and
consolidation we've gotten when we talk
about investigations and we've got a
career investigator who's going to join
us and we've got one where we talk about
hearings and another appeals and we have
a retired judge is going to join us for
those which we think will be great so we
hope you'll you'll tune in there's gonna
be a lot of good information for this
presentation the only one and
this process that we're gonna hit on
here at the end and you're almost done
by the way just two more sections left
than the syllabus at the end here we're
gonna talk about record-keeping so with
that I will turn it back to mr.
Goldschmidt so just to really briefly go
over record-keeping obligations under
the regulation so in addition to
anything is required by your
institutions record retention policy if
there's a formal complaint of title 9
sexual harassment the institution's
under obligation to maintain records for
7 years so these records include records
of actions taken including supportive
measures the basis for the school's
conclusion that its response was not
deliberately indifferent which hopefully
I have a sufficient documentation of
documentation that the school took
measures to restore preserved equal
access and if he didn't provide
supportive measures reasons you explain
why so hopefully these are things that
you would be keeping in the regular
course maybe not for seven years but
they would you just have to to document
your reactions institution but this
regulation specifically enumerates this
and obligations of the next slide so if
there's an adjudication just really
briefly records also have to contain any
determination regarding responsibility
audio audio or audio-visual recording at
the transcript which is a requirement of
the adjudication of discuss record of
disciplinary sanction remedies provided
record of any appeal and a record of any
informal resolution result and last i'm
record-keeping so in addition to those
requirements there's also a requirement
to keep and publicly make available on
your website materials used to train
your teittleman coordinators
investigators adjudicators and any
person to facilitate an informal
resolution process so to the extent that
these videos are used for for your
training please post them on your
website so that you comply with this
requirement but as we mentioned the
portal to train so make sure you post
those materials as well with regard to
other elements and specific
institutional policies
last two additional considerations the
first deals with retaliation so
hopefully your institution already has a
process and expectation that retaliation
is prohibited the regulation
specifically states that retaliation is
not acceptable
no school or person can intimidate
threaten coerce discriminate any
individual for exercising their
telematics or because that individual it
reported a complaint or participated
really in any part of process through
testifying assisting participating
refusing to participate in any manner
retaliation is prohibited as it should
be and you should have your a part of
your policy that reflects this
expectation and last Title 7 so this
will this will be mostly relevant to
your HR folks and really trying to
square title 9 that employees need to
have the title 9 process with
established processes use of title 7 so
title 7 prohibits discrimination in the
workplace and has been interpreted that
will that it prohibits sexual harassment
so in the preamble the Department
explains that that they're aware that
title 7 imposes different obligations
with respect to sexual harassment
including different definitions of
sexual harassment knowledge standards
and just kind of basically explains and
really told everyone that recipients
need to comply with both title 7 and
title 9 and they're there in response to
commenters concerns their position was
there's no inherent conflict between
title 7 and 9 so the institution should
have no issue complying whether that's
the case in reality maybe there those
are a few HR professionals that hope
that will beg to differ with that but
the department's position here is there
should be no conflict
so compiling both yeah it's but boy boy
if only we could all
have that kind of power right I love
love that authority there is no conflict
these are these are not the droids
you're looking for
right at any rate moving right along
so we're here at the end and I we just
wanted to highlight for folks some
additional resources first of all the
Office of Civil Rights indicated and the
Department has indicated that on a
go-forward basis when it's got guidance
around this rule or interpretive
guidance et cetera it's going to post it
on this blog again if you've got the PDF
of the slides you can click on that
square right there and it'll take you to
the blog it's not hard to find though if
you just google OCR you know I don't
know the civil rights blog it ought to
pop right up also wanted to highlight
for folks we have a comparison document
that we created that you may find useful
so if you look at that Federal Register
document we highlighted earlier which is
where the new rule is located as of
right now and even after the new rule
comes out what you can't see is how it's
changed right because the Federal
Register just shows you the new text but
it doesn't actually show you in the
context of the existing regulation
what's different so we created a
comparison document if you're a council
or if you're at online coordinator or a
curious adjudicator please feel free
this is located on the same page where
the slides are located and if for some
reason you cannot find the slides or
this comparison document just shoot me
an email or Scott an email and we'll get
it to you two or three other things and
then we'll be done we have a higher
education webinar series they are all
free and they are on demand if you can't
make the live versions we usually track
the academic year so we start in August
and go through May and we cover all
different kinds of higher ed topics
including you'll see here in May 2020 we
did a three-hour version of this whole
series sort of condensed that we then
expanded into this six part training
series we also have a blog you're
welcome to sign up we talked about lots
of different stuff a lot of writing
about the cares Act recently for
institutions of higher education but we
also cover title nine and other matters
and occasionally we put out again free
tools that we think would be useful to
institutions we have an alert that we
send out and use and then and this is an
example we did
reporting guide for the bar defense
reporting requirements which counsel may
find useful finally there's some
additional information I'll just stop
here extended BIOS for Scott and myself
and a disclaimer reminding you that we
are not your attorneys but I will end
this by saying I hope you will stick
with us and go through the remaining
modules it is really our pleasure to
bring this information to you we know
this is a lot to take in in schools
particularly in this time of kovat 19
with folks all at home you know trying
to figure out how to put all this
training together and get it to the
people who may be involved in these
processes we know is difficult so we
hope this is helpful
and last but not least I'll say for
myself meant for Scott for everybody out
there please be safe and be well
you