hi my name is aaron lacey and you are
listening to formal complaints of title
ix sexual harassment which is part of
the
thompson coburn title ix training series
uh for those of you who may not know
thompson coburn is a law firm in the
midwest and we have
offices all over the place coast to
coast we're pretty big and we have a
higher education practice we have
attorneys who
spend uh the great majority of their
time working with colleges and
universities on a wide range of issues
including those involving discrimination
law uh like discrimination on the basis
of sex which is covered of course by
title ix
uh the purpose of this training and uh
if you watch the first module you know
um already that there is a new title
nine rule and it becomes effective
august 14th
2020. uh it's july 2020 right now we are
still operating amidst the pandemic
all of the speakers in this training
series are are in home offices
or other offices but we're apart and we
know that for institutions trying to
comply with these training requirements
that's going to be a challenge because
similarly they are spread around right
now some can't get into the office and
there's still a lot of questions about
what's going to happen
with students etc in the fall so getting
up on these training requirements
is a challenge and we wanted to try to
make that a little bit easier
the purpose of this particular series is
to serve as foundational training for
the individuals
who are going to start taking part in
the sort of revised and expanded
uh formal complaint process that we
anticipate many institutions are going
to have to put into place
or will put into place and and actually
it's the formal complaint process that
is really the focus
of this presentation and will be talked
about uh
uh greatly in the subsequent
presentations as well so
we hope you find it useful if you do
find it useful
please feel free to post it on your
website one of the sort of wrinkles of
this new
uh rule title ix rule is that
institutions not only have to train
their adjudicators and advisors
and appeal officers but any training
they use they have to make available on
their external websites
we are completely okay with that this
training series was designed for that
purpose so please
feel free to do that and if you'd like
custom training meaning on your policy
or simulations of hearings things like
that we'd be happy to work with you to
do that kind of thing as well
the series is comprised of six modules
you are listening to the second
of six which again is sort of the
introduction we gave an overview of
title ix and the new rule in the last
module this module we get a little more
focused on the formal complaint process
and then in the subsequent four modules
we'll really start digging in
to um hearings and appeals and some of
these
significant elements of the new process
this is the syllabus for the today's
presentation
and if you listen to all six you'll know
that uh it is frequently the case
that the syllabus for a presentation is
much longer than this so you're in luck
today's presentation is probably one of
the shorter and more succinct ones
and uh we'll try to make sure that we
keep it as such um
joining me today and you will see his
face throughout all of the title ix
training series
is uh mr scott goldschmidt my friend and
colleague scott
is the former deputy general counsel at
catholic university in washington dc
and while there spent a great deal of
time working on a variety of title ix
matters and other matters
as is often the case with the general
counsel
or general counsel's office i should say
so the first
stop on our syllabus today the formal
complaint
framework and as i mentioned in the
first session we talked about the new
rule but we even took a step back and
talked a little more about the title ix
statute
i want to start there again i'm a
top-down learner and i always like to
sort of start big and work our way into
the details so
as i mentioned in the prior session and
you'll hear me say again
later in subsequent sessions keep in
mind the title ix statute created back
in 1972 prohibits discrimination on the
basis of sex
in all forms and manners at institutions
of higher education
so the point here is the title ix
statute doesn't merely prohibit sexual
harassment it prohibits
any kind of activity that would be
potentially discrimination on the basis
of sex so that would include
discrimination in athletics
discrimination and
potentially in housing or recruiting
anything along those lines
and it's also important to note it
covers both students and employees so
the statute itself
is broad now is often the case uh
congress created a statute that's broad
but doesn't have a lot of meat on the
bones it essentially just includes the
prohibition and they asked
the u.s department of education then to
step in and create a rule well they did
that
um and that was back in 1975 and it
covered a lot of ground and as
uh regulatory agencies are want to do it
expanded and articulated more around
what the expectation was for the
regulated community so specifically
institutions of higher education among
other things have to have a
non-discrimination statement
they have to have a title ix coordinator
they have to have processes in place for
managing all forms or all complaints
of discrimination on the basis of sex
including sexual harassment
and then finally they have to be on the
lookout for uh
allegations of sexual harassment or
discrimination on the basis of sex and
be prepared
to try to address it and remediate it
and prevent it
um if you're interested in seeing the
new rule by the way it's in the federal
register
and you can click on this link if you
have the actual slides which should be
available somewhere near where these
videos are posted
um this graphic we include in all the
sessions and again it's our way of
really trying to help you wrap your
brain around
where the new rule fits into the overall
title ix
framework so as i mentioned the statute
prohibits discrimination on the basis of
sex
broadly in programs and activities
offered by institutions of higher
education again athletics housing
recruiting
uh admissions you name it now the new
rule
is focused a little more specifically on
what they call title ix sexual
harassment and in the last session scott
talked uh
and some detail about that definition of
sexual harassment that's been
introduced but the real bulk of the new
rule
is the machinery that institutions have
to put into place
when they have a formal complaint of
title ix sexual harassment and that's
what you see here
in the orn orange box at the bottom of
the screen
and that's what we're really talking
about today we're going to get into
what's required when you have
a formal complaint now before we go down
that road we should talk about what is a
formal complaint
a formal complaint of title ix sexual
harassment as defined in the new rule is
a
written complaint it could be electronic
doesn't have to be on an actual piece of
paper
but it has to be in writing and it has
to be signed either by a complaint or
title ix
coordinator right it's a written
complaint to the institution
alleging title ix sexual harassment and
requesting that the institution
investigate so if you get one of those
that's the point at which the
institution
has to initiate its process for managing
formal complaints
and that process is uh has to comply
with the new rule
and with a lot of uh very specific and
detailed
uh elements or has to include a lot of
specific and detailed elements
um and here i think this may be the
first time you see this graphic in the
series you'll see it in the subsequent
presentations
we sort of break out for you
categorically speaking
uh each of the major elements that has
to go into this formal complaint process
and the first three the ones that are in
orange are the one where ones we're
going to talk about today so the
department when it
set out the new rule it talked about and
you'll see here determinations and
hearings and notice of allegations but
it started the whole thing
uh by offering up what it called sort of
basic requirements for
any formal complaint process so today
we call them the core requirements
that's what scott is going to walk you
through
in the very next element of the syllabus
and then we'll also spend a little time
today
talking about grounds for dismissal
which is important because there are
circumstances
where you have to dismiss a title ix
complaint under the new rule a formal
complaint
and also we'll talk about complaint
consolidation which is equally important
and i know a lot of institutions it is
not uncommon that you may get two or
three complaints at once that all relate
to sort of one incident
uh or issue and being able to
consolidate those complaints is
important and it is something
that the new rule contemplates so with
all of that having been said mr
goldschmidt thank you for standing by
while i
while i got through the introductory
pitch here uh please walk us through
these core requirements
yeah absolutely uh thanks for that
explanation and i think that kind of set
the table nicely
um and it's again it's a pleasure to be
with everyone uh so
as aaron discussed the um the new title
ix rule
sets out the process for formal
complaints of sexual harassment
and in that they they have requirements
for their grievance procedures
uh in the in the regulation they call it
10 basic requirements or the basic
requirements for a grievance procedure
for a formal complaint of sexual
harassment
um here we call them the core
requirements and we'll go through them
one by one
so the first one is equitable treatment
and this
is a it's a piece again if you if you
listen to the presentation
you'll hear us talk about a number of
times um but
one of the the department's big goals
for this regulation
is the equitable treatment of both
complainants and
respond and here they say equitable
treatment uh means a few things
so first if a complainant
files a formal complaint of sexual
harassment and a determination is made
where the respondent is responsible for
sexual harassment
you have to provide remedies for that
complaint and those remedies must be
designed to restore
or preserve the equal access of the
complainant to the school's educational
program or activity
in addition you need to follow a
complaint process that complies with
this rule
so in addition to these 10 requirements
we're going to talk about now
uh the rule as aaron mentioned on a
previous slide has a number of other
requirements
that schools must comply with and by
doing that is an element of feeding both
parties equally
the second basic requirement here is
objective evaluation and objective
evaluation is something we really go
into detail
in the investigations and hearings
module
but just as a little preview to to to
introduce the concept
the school's formal complaint process
must require
objective evaluation of all evidence so
basically an objective evaluation as we
mentioned here
is one that involves impartial
consideration available evidence
not prejudging a party based on their
status
as a witness or a complainant or
respondent
and no prejudgment of facts at issue um
and then when you're in uh the uh the
hearing
process and you're a decision maker not
providing any deference to the
recommendations of an investigator to
really kind of the investigator has
their objective evaluation
of the facts and provides a report and
you as a decision maker if you're in
that role
provide your objective evaluation of the
facts
and as part of this process schools also
have to provide that credibility
determinations
can't be based on a person's status as a
complainant respondent or a witness
so really that means to the extent that
that someone thinks
respondents made more be more likely to
have
be responsible or vice versa like that
is absolutely not allowed
all facts all evidence needs to be
treated objectively
and based on uh based on what you have
in front of you
and scott i'll i'll jump in you made a
sort of an offhand comment there but i
think it is a really important one to
emphasize and that is
um you know these requirements which by
the way i think the reason we called
them core requirements is we felt like
they weren't very basic
and candidly that was a little
misleading some of them are pretty
complicated to wrap the mind around
but the point you made that i think is a
good one is a lot of these core
requirements
um the department sort of lays them out
in the law and says well you have to
have these things
but then when we get into as you noted
hearings
and uh investigations and some of these
other components they revisit these
ideas
and provide more information around what
they really mean when they say you have
to
be objective or you have to avoid
conflict of interest or you have to make
credibility determinations et cetera et
cetera
and i just want to highlight for folks
we are going to talk about
and really dig into some of those ideas
at length when we
are in our modules on investigation and
hearings and appeals so
we're really setting the table for you
here but uh keep in mind if you're an
educator investigator and you're
thinking boy this seems like a really
hard concept
um some of the later sessions are going
to dig into these ideas in more detail
and and i'm glad to say we've got some
experts some career investigator
in one case and a long time judge who
are going to talk about these ideas of
being objective and
relevant and things of that nature
thanks aaron that's a great point
um and actually that brings us nicely to
the next slide
in which we kind of get a little more
preview into what a credibility
determination is
so on the previous slide we mentioned um
you can't make credibility
determinations based on a person's
status in the hearing
and just to introduce the concept
briefly credibility determinations
are what statements to believe in and
what statements not to believe so as an
adjudicator
uh you can believe everything a party
says or a witness says
part of what they say or none of it and
and i think the
the the basis of how to make that um
determination
uh i think as aaron mentioned we'll go
into in a little more depth but suffice
it to say for here
um in some situations there there really
may not be much else to go on
uh besides the statements of the parties
so it really might come down to a
credibility determination
uh in in in large part to make a
determination so it is a very important
concept
and one that you should be thinking
about as we move forward in
these training modules
next uh oh it's perfect segues uh
training of key participants here
um so the rule requires
training to be given for certain
individuals
throughout the uh that are performing
certain title ix roles
so you have to have a process that
includes training for coordinators
investigators and adjudicators and
require that they be free of conflict of
interest
or bias so the materials here used to
train title ix coordinators
and title ix personnel can't rely on sex
stereotypes
and must promote impartial
investigations and adjudications
of all formal complaints of sexual
harassment
and here's a slide that lays out the the
training of key participants
and kind of broken down of what has to
be trained for each
so as mentioned here there's there's uh
the title nine personnel
are broken down um and what the rule
requires that they be trained on
um obviously this is not a this is a
floor not a ceiling of what they could
be trained on but you have to make sure
that
before uh the rule goes into effect this
training
does take place um for each of these
title nine participants
yeah and it's worth you you said it but
it's worth emphasizing that
um what you see on this slide and you'll
see on the next slide i think
are uh are in the actual rule so
uh as scott noted you know while there
are a lot of different types of training
that you may want
uh different folks at the institution to
go through
again advisors adjudicators hearing
officers appeal officers
you have to make sure that they're
getting these things so if you are for
example
devising a training checklist you want
to make sure that the things are
required in the rule or at the top of
that
checklist or if you are evaluating the
combination of training materials that
are on your external website
again if you're being audited if ocr is
looking to make sure that you
have the requisite training elements in
place you know you're going to want to
look across those materials on your
website
and make sure that the things you see on
this slide are specifically being
addressed
everything else and there may be a lot
of
other things that are very important we
mentioned earlier you know we think
simulations are great
when you have folks who are going to be
a hearing officer giving them the
opportunity to
go through a mock hearing is so so
valuable similarly investigators can
benefit from that kind of exercise
but as scott noted the floor is making
sure
that you are training your individuals
who are going to serve in these roles
on these specific items at a minimum
and you need to be able to document that
you're doing it and you need to show the
materials you're using to do it
on your external website so i just want
to emphasize
that this is not our opinion of what
would be great training um this is what
the rule actually requires for the
people who are in these roles
yeah no all great points um and let me
let me pose a question to you in the
next slider and so
we talked about the the training that um
that has to occur and you might want to
include more training than that um but
from your experience
uh what are some best practices to uh to
to train individuals especially in light
of the kova 19
challenges that we're all facing right
now yeah i great question so
i'll start by saying i think sometimes
when institutions certainly
in the past have been faced with this
idea of you know we're supposed to have
title ix training and
you have similar training requirements
that are president of the clery act that
that may overlap and require some of
that same
type of content to be delivered um you
know i'll talk with the institution and
say well we we purchased this product
this video
on bystander intervention from this
third party which is great and it's a
great video we love it
and then we're doing this other thing
and that's our training and
one of the things i really try to
encourage institutions to do
and i think the new rule to some extent
is going to force them to do that
is to think more broadly about all the
specific constituents
that you're looking to train or the
particular folks you know
so you've got students and you have the
things you want to train students on you
know your policies around sexual
misconduct
um bystander intervention things of that
nature where they can go if they
experience an issue
and a lot of those things you're going
to want to train employees on as well
but when you're talking about training
for advisors and investigators and title
ix coordinators
these aren't folks that need general
training and awareness around
your policies these are folks who need
specific training with regard to the
roles they're going to play
so now you're talking about policy
training and training on the law and
this type of
foundational training so you know my my
recommendation to folks is you really
should have a training plan
and you should say who are our target
audiences and what is the type of
training that we need sort of
categorically for each of these
audiences
and then think about how we're going to
deliver that you don't have to deliver
it the same way
every year you might have a speaker come
in one year to do your policy training
and you could have someone do a video
a subsequent year some types of training
like these
foundational series could just be posted
on your website and everybody can review
them
until the law changes they ought to stay
fresh on the other hand you're going to
have certain kinds of training that you
want to update every year and it
and it probably is good to have folks
on campus and going through live
simulations and things like that
so i would develop that training plan
understand that it can change over time
that's something your title 9
coordinator can probably take the lead
on
look at different types of resources i
actually think for the folks receiving
training
when you are getting some variety that's
helpful if
everything is just sitting in front of a
computer uh
it can become stale pretty quickly so
having some live interactions
some web-based uh concepts where there's
a platform but there's an engagement in
the platform
and then occasionally having the lecture
type things like these these training
modules
combining all of that in a meaningful
way to make sure that
all of your constituents are getting the
training they need
it's important so i really encourage
your top nine coordinator and whoever
else is sort of
in it might be uh have these types of
responsibilities to sit down
and in a deliberate way develop a
training plan i can also tell you
when the office of civil rights or any
other auditor that
might come around boy if you could pull
that out and you keep a record of it as
the training you know what's the
training we've made available year over
year and you document that you've gone
through this process of assessing your
plan
um i mean that all looks great and it
shows and demonstrates that you're
serious about title ix and cleric
compliance and that you're approaching
it
in a meaningful and deliberate way a
couple other bullets here
encourage and ensure time for questions
when possible so obviously there are no
questions when you have a lecture style
pre-recorded
training session like the one we're
doing right now but it is important and
this goes back to my comment about you
know mixing it up you want to make sure
that some of your training plan
includes modules or programs where folks
can really engage and
that's why we like the simulations for
example because it's an excellent
opportunity
for a would-be adjudicator or
investigator to stop
admits the simulation and start asking
questions to folks who can give
meaningful feedback
um and then finally we've we've sort of
hit on this uh consider
uh mixing up with lots of live programs
and events and things of that nature
so it's a big job but it's an important
one and i
my experience has been that schools
often spend a lot of time
and i understand why this is resource
constraints all kinds of things
but um schools i think invest a lot of
time in figuring out how they're going
to address serious issues
meaning their sort of complaint process
etc and maybe a little less time and
and have more trouble convincing the
powers that be to allocate resources to
preventative efforts
like upfront training but boy is it
important and it really will help you on
the back end too to demonstrate
compliance whether that's to ocr or in a
in a in front of a jury or anything
along those lines yeah
that's all great points and i think uh
just to piggyback on that from my
experience the simulations too certainly
are
where the rubber hits the road and where
you really see who understands concepts
and who
does not um but moving right along um so
we fit three of our
our core ten uh the fourth is the
presumption of innocent so the
presumption of non-responsibility for
the respondent
um so here we we included a site from
the from both the
regulation and the preamble and um just
so
everyone's on the same page the preamble
is the commentary that becomes prior
to the regulation and when you talk
about the um
regulation scope uh the unofficial rule
came out it was 2000 pages of preamble
and about 30 pages of rules so the
preamble is much more lengthy and really
gives the
department's thinking and understanding
um of of the provisions in the
regulation
and that helps us really understand kind
of how they are going to interpret
so here the department comes out and
says the presumption of
non-responsibility doesn't mean the
harassment didn't occur
it just ensures that there's no
prejudgment
of facts prior to the fact that a
determination is made
um so here this kind of goes to um the
burden of proof that we'll talk about a
little later
it's not the respondent's um
responsibility to to prove their
innocence
here that there's no there's there's no
uh responsibility until an ultimate
determination is made
at the conclusion of formal hearing
process
um fifth out of our ten is is prompt
time frames um so the regulations
explain that
the school's process must include
reasonably prompt time frames
for resolution which allow for temporary
delay
or limited extension for good cause
that's what the says
the pieces and quotes here from the
preamble to give a little more concept
context and what the preamble explains
is
any time frame included by the
institution
uh is reasonably prompt where
uh which is evaluated in the context of
the
the institution's operation of an
educational programmer activity
so what that means potentially is uh
there's a difference between reasonably
prompt for a corporation
that operates 365 days a year and a
school that might have breaks
or certain things so that is
uh you're able to to take that into
account when you're determining
what you consider in your process as
reasonably prompted
and what kind would would come when you
have a situation that potentially occurs
uh during a break second um the
department says that it's
it's to the institutions idea to balance
um
promptness with fairness so there are
certain situations again we'll talk
about a little later
so when a police concurrent law
enforcement investigation comes into
play
there could be a reasonably prompt there
could be good cause for a delay
if the police investigation lets you
know
in two weeks we're gonna come out with
this evidence that we think might be
helpful for your investigation
that could be a reason for a delay
whereas if
police say we're pursuing a rape kit but
it's not available for
a year to that might not and that's up
for you to decide
um based on the facts and circumstances
of your case
number six moving right along our
sanctions and and remedies here
so the school's formal complaint process
must
end uh describe the range of possible
sanctions and remedies
and the preamble explains uh sanctions
and remedies are left to the
the sound discretion of the institution
so
in your in your sound discretion you can
you can determine and these are things
you probably
have been already doing um throughout
anything from educational reflections
all the way to suspensions to expulsions
these are all the realms here
and then the new regulations also permit
recipients to evaluate such
considerations
and make disciplinary decisions uh that
each recipient believes
are in the best interests of their
educational environment so
take a thoughtful approach here but the
regula the preamble is explaining that
it's
it's it's left in schools discretions
and what
what is in the best interests of of your
particular educational environment
next again something we'll preview here
that we'll get into a lot more depth
uh in future presentations but the
school's
process must detail the standard
evidence that will be used
uh consistently for all formal
complaints
of sexual harassment so just to the
extent that you have a
a formal complaint process of sexual
harassment in a different context
in a in an employment or a collective
bargaining agreement context
you would have to use the same standard
for for your your title ix sexual
harassment process
or change the standard there so schools
can either use a preponderance standard
uh which means that a particular fact or
event was more likely
not to have occurred or a clear and
convincing evidence standard
which means that a particular factor
event was highly and
substantially more likely than not to
have occurred
and schools have discretion here to
choose um which one works best for their
educational environment
except that certain state laws mandate a
standard
that's the case then absolutely follow
your state law
next appeal processes and standards so
your formal complaint process
has to describe your appeal process and
standard
so the regulations explain that there's
three bases that you have to include for
your appeals
a procedural irregularity that affected
the outcome new evidence
not reasonably available at the time of
the determination or dismissal
that could affect the outcome that could
affect the outcome and that the title ix
coordinator
investigator or adjudicator had a
conflict of interest or bias
that affected the outcome of the matter
schools have to offer
these appeals equally to both parties
schools not limited to these three they
could add more
but you have to at least include these
three
appeals um at a few different times
during the
uh the formal complaint process that's
right
and and folks don't know this but we've
already recorded some of the later
sessions we're not we didn't record them
all in order and so we can go ahead and
tell you in the session on appeals uh
judge uh retired judge booker shaw will
talk a lot about
uh obviously appeal processes and in
particular these bases for appeals and
uh what schools should be thinking about
so we encourage you if you're an appeals
officer or you're someone who's
you know responsible uh for
understanding the appeals process at
your institution boy we encourage you to
check out that module perfect thanks
aaron
um and uh i think we're almost done here
with our 10
so number nine uh in our core
requirements are supportive measures
so school's process must describe the
range of available
supportive measures and here uh
hopefully is a list that should be
relatively familiar to individuals that
have dealt with title
ix uh previously um but just to just to
explain that these are these are
the range of supportive measures that
that you could um potentially offer and
include in your policy that's right
and it doesn't i you know i don't think
there's anything in the rule that
suggests just to be clear that your
your discussion of the range has to be
exhaustive me
or comprehensive i think it just has to
be exemplary
of the kinds of things that the school
could offer and this is a perfect
example on the slide of the kinds of
things you might include
exactly uh and last but not least is is
uh legal privilege so
legal privileges um just to preview this
are aspects that protect certain
communications
and documents from disclosure uh your
formal complaint process and you need to
make sure
all your title ix personnel know that
you cannot require
allow rely on or otherwise use
questions or evidence that constitute or
seek disclosure of
information protected under a legally
recognized privilege
so some of those privileges uh include
the attorney-client privilege
increased penitent privilege the doctor
patient privilege and the spousal
privilege and the individual
that holds the privilege is the one that
can protect it but also decide to waive
it so if that person has has
decided to waive that privilege you are
you are able to
there's no restriction anymore on that
information but to this
extent that i have not you have to make
sure you unders your
investigators and your hearing officers
especially
understand that this is not information
that you'd be entitled to
and with that i'll kick it over to aaron
for for uh talking about dismissal
yeah thank you sir although i may lean
back scott i may lean back on you here
because i know you know this
particular topic extremely well um so
interestingly enough pursuant to the new
rule uh institutions in certain
circumstances
are required to dismiss a formal
complaint of title ix
sexual harassment so you see here on the
slide schools must and we draw this
distinction because on the next line
we're going to see a may
but here schools must dismiss a formal
complaint of sexual harassment
for purposes of sexual harassment under
title ix
so what we're saying is you have to
dismiss it and move it out from under
your
formal complaint process for title ix
sexual harassment in these circumstances
if the alleged conduct
would not constitute sexual harassment
even if proved
did not occur in the school's education
program or activity
did not occur against a person in the
united states and if you look back at
the definition of sexual title ix sexual
harassment that scott discussed in the
prior session
um you'll see that essentially what the
what the department is saying here
in the law is if you have a formal
complaint that's made and it
fails to satisfy the core requirements
of that definition of sexual harassment
in other words
if someone's complaining about something
and it does not by definition
doesn't constitute title ix sexual
harassment then you have to dismiss it
right
but and this is an extremely important
point and scott and i talked in the
prior session about
you know institutions are going to have
to make decisions about how they want to
do all of this
even if you dismiss a formal
complaint of title ix sexual harassment
on the grounds that it doesn't
constitute title ix sexual harassment or
doesn't satisfy these criterion
um such a dismissal does not preclude
action under another provision of the
school's code of conduct so in other
words
you could say well we recognize and
you know that that this formal complaint
of sexual harassment
doesn't qualify as title ix sexual
harassment for one of these reasons
right
but so so it you know we had a student
who was studying abroad in another
country they're physically outside of
the country
and that's where the incident occurred
it was on our campus location that's in
that country
so now we have to decide how to proceed
we're going to dismiss it as a
formal complaint of title ix sexual
harassment but now we may decide
to proceed under a separate policy that
we have
for managing formal complaints of
non-title ix sexual harassment
or as scott mentioned in the prior
module you could also say you know what
we're going to dismiss it as a
title ix complaint and we're going to
put it under this separate policy but
this separate policy is actually
identical so the process we're going to
use is the same
we're just acknowledging per the
department's regulation
that this is no longer a formal title ix
complaint
um optional dismissal so schools
may dismiss a formal complaint of sexual
harassment at any time if
a complaint notifies the title nine
coordinator in writing that they would
like to withdraw
the respondent is no longer enrolled or
employed by the school
or specific circumstances prevent the
school from gathering sufficient
evidence to reach determination
you know we anticipate that a lot of
institutions
will be very and we hope you would be
very thoughtful about when you would
exercise
on a discretionary basis the opportunity
to dismiss a formal complaint of sexual
harassment because
as a general matter under title ix and
we know schools as a general matter
want to investigate these types of
issues and bring them to a close
to ensure that they don't occur again um
and
or that a victim is uh provided
appropriate remedies
right but there could be circumstances
uh
practically speaking where it becomes
extremely difficult to proceed
for example if your complaint says i
want to withdraw the formal complaint
right and i'm not going to cooperate any
further or
and i've been involved in these types of
situations and i'm sure if there are
title ix coordinators or council
listening you have as well
where you have a student or an employee
who files a complaint and then they
subsequently depart the institution
before you can complete the process
you may not be able to communicate with
them i've had situations where
international students who were on
campus when the incident occurred
uh went back home and we couldn't
communicate with them or get in touch
with them
in any way and the department seems to
anticipate here that
there could be circumstances where an
institution maybe appropriately would
say we're going to dismiss the formal
complaint
by the way the school could still it put
into place supportive measures and take
other steps you're only dismissing
the formal complaint concept and moving
it out of this you know very specific
machinery but again there's still a lot
of opportunity even if someone's
departed and you can't get in touch with
the complaint
or responding et cetera to still try to
try to take steps that are appropriate
um again upon a required or optional
dismissal schools must properly
and simultaneously send written notice
to the parties so to the extent
you know if you have the situation where
you can't find one of the parties that
may be a challenge but nonetheless the
idea here is and this is
um consistent with the overall theme
in the new rule and i'll say even more
generally in
proceedings that you want to be sure to
treat the parties equitably
and to communicate them communicate with
them promptly
and in an equitable way
keep in mind when we talk about
dismissal of complaints the 106 45
grievance process
and the department here this is a quote
out of the federal register from the
preamble or the commentary
um and 106.45 that's the formal
complaint process in the law that we're
talking about here and in subsequent
presentations
so the department says this formal
process obligates recipients to
investigate and adjudicate allegations
of sexual harassment under title
ix the department does not have
authority to require recipients to
investigate and adjudicate misconduct
that's not covered under title ix so
again getting back to the discussion we
had a minute ago
part of the basis or part of the
justification the department has here
for um requiring dismissal of a formal
title ix complaint when those certain
elements
aren't satisfied is because in their
view that
those types of circumstances would
exceed their jurisdiction so they no
longer have authority to require you to
comply with title ix in the
circumstances
but again it does not preclude an
institution from handling misconduct
that does not implicate title ix in the
manner that the recipient
deems fit and we anticipate that most if
not all institutions
will still uh work aggressively to
manage and address any complaint of
sexual harassment or discrimination on
the basis of sex that they may receive
um scott a couple of questions for you
here the first
uh and i may have touched on some of
these in my ramblings must schools
always investigate a formal complaint of
sexual harassment
uh and i think the the really succinct
answer is yes
and it's very important for for schools
to kind of have this in mind
and that's i think the reason for such a
direct question is
whenever there's a formal complaint of
sexual harassment
they're investigating full stop even if
even if you ultimately dismiss it
yes because you i mean to the extent
that that you need to
uh to understand more about the
situation
to get to a dismissal of the situation
you want to document that that you've
started you learned all the facts that
you needed to and if you get to a point
where
it's it's clear from a very quick
investigation that
the person's outside the united states
then that's an easy uh
you don't need to go much further than
that but but you want to at least
uh make sure that you start the process
um and do that investigation
right under what circumstances uh
is a mandatory dismissal applied yeah
and i think this is one you did
you did go over um and and again it's
it's
it's if it would not constitute sexual
harassment even if proved
um so basically if uh if you read the
complaint as true
and to the extent that even if every
every sentence was true it would not be
title nine sexual harassment that's a
mandatory dismissal
it didn't occur in the school's
education program or activity and that's
a defined term that we go
over but to the extent that's outside
that that realm it's not title ix sexual
harassment
or it didn't occur against the person in
the united states
scott if a school is required to dismiss
a complaint
so they they've done the evaluation you
just walked through and they determined
we
under the law we have to dismiss it uh
can it still investigate and adjudicate
the complaint under alternative
procedures and i obviously spoke to this
a little bit
um previously so let me let me recast
the question just a little bit
um how do you anticipate schools will go
about that do you think that
uh some will have a totally separate
process
do you think that some will just proceed
with the title ix process
but without the title ix in front i know
we addressed this a little bit in the
first session but i'm curious if you
have any additional thoughts
i i think i think that's um that's
that's going to be a really
interesting uh decision that schools
have to make over the next
uh few weeks to to to determine how
they're going to handle these these
complaints i think that
the thing that they want to add and make
clear is that there will
certainly be incidents of sexual
harassment
that are not considered title ix that
the school absolutely
needs to should want to investigate and
adjudicate
so to the extent that you uh
kind of think through your your
processes
make sure that if you have a code of
conduct process
and you're adjudicating a clery offense
that it meets the clear requirements as
well
this process would meet the clery
requirements so that could be a
determination
to for schools to consider but just it's
a question of of how much you
uh you want to have uh the burden of a
potentially separate process versus the
burden of
kind of going through the all the
requirements required in this final
regulation
all right so we're on uh to our last
segment of the syllabus in record time
uh compared to some of the other longer
sessions so
scott um tell us a little bit about the
consolidation of formal complaints
absolutely and this is a really
important concept and we only have this
one slide on it
so i'll spend a little bit of time here
but the the regulations
permit that if allegations of sexual
harassment arise
out of the same facts and circumstances
so basically the
same incident all around you can
consolidate
formal complaints that are against more
than one respondent
by more than one complainant against
more than one respondent
and by one party against the other party
and this is a really
important tool for for schools to have
not for the the kind of the the more
frequent
one complaining one respondent sexual
harassment
that potentially might occur but
a situation where you have one
complainant and five or six respondents
if you do not have this process it would
be very time intensive very cumbersome
to to have
six separate title nine hearings
essentially so
the fact that the the rules allow this
is
is important and something schools
should take advantage of and schools
should also start
thinking about how this would occur um
kind of in practice because the it's a
very different situation
from the one-on-one uh kind of
generic more more traditional harassment
to have these kind of complaints and
things to think through logistically are
spacing where do you where do you put
everyone especially if someone requires
or
requests a telecommunications
option or separate rooms how do you do
your ferpa redactions
when you provide investigative reports
uh to
to people and there's six different uh
respondents listed all in those reports
and and how do you hopefully manage
uh a situation where you could have
three four five six attorneys that are
that are uh
involved and trying to to to communicate
so
this is this is a a good thought but but
it
and it could should be used judiciously
but but also worth thinking through
uh some of the mechanics so that if this
does arise
you kind of have a place to start that
brings us to our resources here at the
end so thank you as always scott for all
your insight
uh and uh detail um i'll just let folks
know briefly
and we've mentioned before the office of
civil rights has a great blog and it's
also where they've indicated if they
have
guidance or uh further comment on the
new rule this is where they're going to
put it you can click
if you have the slides you can click
here and you can actually go to
the blog or you can probably just google
office for civil rights blog
we also whoop skipped a slide we also
have a
comparison document that we created that
should be located
on the same website where you find the
slides
and and link to the training materials
these sessions
at any rate this comparison document
shows what
changes the new rule made to the
existing
uh regulation at uh part 106.
so we if you're like me and you like to
see that type of comparison to see
where the changes really occurred you
may enjoy flipping through this document
we have a higher ed webinar series every
year that begins in august and runs
through
may and we invite you it's free it's
on demand if you don't catch it the
first time it airs and if you are
counsel or an attorney
most i think 99 of the ones we've done
over the last four or five years
um are all cle certified so if you
happen to be council and you're looking
to pick up cle
and and uh stick with higher ed topics
here is an opportunity for you to do so
um i'll also note uh let's see that was
the page where we have
things on demand we have a blog would be
happy for you to read this we talk about
a lot of higher ed
regulatory and policy things on our
regulation blog
and finally keep an eye out we
occasionally
create tools for institutions of higher
education
they are free again here's an example we
did a bar defense
rule reporting guide that um talked
about and helps institutions understand
the reporting they need to make to the
us department of education under the new
rule that became effective july 1
of this year one of several actually uh
and finally after this you'll see
extended bios for
scott and for me and as well as our
disclaimer just reminding you that we
are not your attorneys
unless we are your attorneys but
typically the idea is that we're not
giving legal advice here
uh hey thank you so much we hope you
found this session
uh helpful please be on the lookout for
the others um
and again a lot of the things we talked
about today
uh relevance credibility uh those types
of sort of squishy concepts are explored
in more depth in subsequent sessions and
we hope you'll check those out
that all having been said take a deep
breath erin uh
we hope particularly in the midst of the
pandemic from scott and from myself
we'll just say to everyone please be
safe and be well
and we'll see you next time
you