While the Title IX sexual violence guidance announced by Vice President Joe Biden on April 4 raises many issues for administrators of K-12 school districts as well as college and university officials, it also has important ramifications for the law enforcement and security officers who protect these communities. The guidance, issued by the U.S. Department of Education's Office for Civil Rights (OCR), makes it clear campus law enforcement has an important role to play in the sexual violence policies adopted and published by institutions under the law that are intended to provide for prompt and equitable resolutions geared towards eliminating gender inequity.
Title IX Doesn't Just Apply to Athletics
Best known for requiring gender equity in collegiate athletics, Title IX of the Education Amendments of 1972 (Title IX) broadly prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance. Sexual violence is viewed under the law as an extreme form of hostile environment/sexual harassment and must be addressed. When an institution "knows or reasonably should know" about a hostile environment, they are required "to take immediate action to eliminate the harassment, prevent its recurrence and address its effects." Institutions must adopt and publicize policies as well as designate at least one Title IX coordinator to respond to their obligations under the law.
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Under Title IX guidelines, harassment is considered to be conduct that creates an impermissible hostile environment if it is "sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program." Less severe conduct with sufficient repetition may rise to this level, while even one incident that is more serious may rise to this level. For example, "a single instance of rape is sufficiently severe to create a hostile environment" according to OCR.
The scope of sexual violence covered by Title IX includes an array of offense categories, including rape, sexual assault, sexual battery and sexual coercion. This is consistent with the scope of forcible sex offenses covered for colleges and universities under the Jeanne Clery Act's statistical reporting provisions. These are defined as "any sexual act directed against another person, forcibly and/or against that person's will; or not forcibly or against the person's will where the victim is incapable of giving consent." This includes forcible rape, of both females and males; forcible sodomy; sexual assault with an object; and forcible fondling.
Off-Campus Harassment Also Covered in Guidance
The harassing conduct may occur in any setting related to a school's programs, including off-campus activities such as field trips or athletic events. While it may fall outside a school law enforcement agency's jurisdiction, institutions may also have an obligation to respond to harassment. This is especially true when it rises to the level of sexual violence that originally happened off campus or outside an educational program if a student experiences "the continuing effects of off-campus sexual harassment" in an educational setting.
An example of such a setting includes a victim continuing to encounter his or her assailant in classes, cafeterias or residence halls. When an institution addresses sexual violence, even if it occurred off-campus, it must do so using procedures that comply with Title IX guidelines.
Conduct More Than Just a Police Investigation
When institution officials become aware of possible harassment, their first obligation is to investigate the information, whether the victim or a third party brought it to their attention. Institutions are expected to coordinate their law enforcement and Title IX responses to such complaints.
While a school resource officer or campus police officer may conduct a law enforcement investigation, "because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX," writes Russlynn Ali, the assistant secretary for civil rights at the U.S. Department of Education and head of OCR. This means that when a sexual assault is reported to campus law enforcement, in addition to conducting a law enforcement investigation, the department should "notify complainants of their right to file a Title IX sex discrimination complaint with the school in addition to filing a criminal complaint, and...report incidents of sexual violence to the Title IX coordinator if the complainant consents."
Use the Preponderance of Evidence Standard
A school will not meet its Title IX obligations solely by conducting a law enforcement investigation because conduct "may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation." For example, the new guidance makes it clear that institutions must resolve Title IX disciplinary matters using the "preponderance of the evidence" standard (meaning it is more likely than not that sexual harassment or violence occurred). Disciplinary procedures should not use the higher "beyond a reasonable doubt" standard required in criminal proceedings or the intermediate "clear and convincing" standard (meaning it is highly probable or reasonably certain that the sexual harassment or violence occurred).
Train Officials How To Identify and Respond
All school officials who are likely to come into contact with the victims of sexual violence, including all law enforcement unit employees, are expected to be trained on how to identify covered sexual harassment and violence as well as how to respond under institutional procedures (police should refer any non-criminal reports to other channels within the school for resolution). This training should also cover the psychological needs of the victims and survivors of sexual violence so that police understand how victims may respond. It also prepares police to be as sensitive as possible to victim needs and prevent any revictimization from occurring. Police should always be prepared to make referrals to counseling services available either on or off campus, and other resources available to victims and survivors. Local rape crisis centers, and on-campus women's centers or counseling departments may be important resources for this training.
Each school's Title IX coordinator is expected to provide guidance to their law enforcement department about how to respond to reports of sexual violence under their institution's specific Title IX grievance procedures. This should include training for public safety personnel on the school's procedures and any other procedures used for investigating or responding to sexual violence. With the consent of the complainant, information from a law enforcement investigation may also be used in the Title IX investigation "so long as it does not compromise the criminal investigation."
Include Title IX Procedures in Clery Reports
For college and university police or security officers responsible for producing their institution's annual Jeanne Clery Act report, being familiar with the all of their sexual violence grievance procedures is especially important. The Clery report should contain a summary of all procedures that may be used to investigate, respond to and resolve a sexual assault complaint using both informal and formal procedures, including options for making changes to a student victim's academic and living arrangements.
If there isn't already a working relationship between police and the Title IX coordinator, police should be able to readily identify who to contact from their institution's published procedures and reach out to them to begin a collaborative relationship.
Don't Wait to Investigate Title IX Claims
Unlike a criminal investigation, due to the promptness requirements of Title IX, there are limits on how long an institution may take to conduct an investigation under their grievance procedures. Schools should designate and publish "reasonably prompt time frames" for each stage of a case, specifically for the investigatory phase, when the complainant and alleged perpetrator will receive the outcome of the complaint, and for any appeals. OCR expects a typical investigation to take about 60 calendar days, although they recognize that more complex cases, such as those involving multiple incidents, may take longer.
The new guidance also addresses how long an institution may delay taking full action while a law enforcement investigation is underway. Schools aren't able to wait for the conclusion of a criminal investigation and shouldn't dissuade victims from seeking a resolution under Title IX prior to the resolution of any criminal matters. Similarly, schools shouldn't discourage students going through their Title IX grievance process from reporting to law enforcement. Under the Clery Act, colleges and universities are required to offer sexual assault survivors assistance in reporting to law enforcement. If a school has a memorandum of understanding with local police, it should address under what circumstances, including addressing any mandated reporting laws especially for juvenile victims, sexual violence will be reported and how.
Some Temporary Delays are Acceptable
A school, however, "may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence," writes Ali. "Once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation." OCR notes that this delay may normally range from three to 10 calendar days but may be longer in some cases depending upon the complexity of the matter. During this time, schools should notify victims of their rights to pursue disciplinary action or obtain other assistance.
Schools should also still take any interim action - such as a no-contact order or interim suspension of the accused - needed to protect the victim and or the rest of the campus community. As some of these steps may be outside the scope of law enforcement, it is critical that there be coordination with appropriate officials at the school who are empowered to take these steps. This would include working with student judicial officials and academic departments.
Prevention of Sexual Harassment Works Best
Ultimately the best approach to Title IX compliance is one that does not tolerate illegal sexual harassment and violence. It is also important to have personnel at every school, college and university who work together collaboratively to combat it in a coordinated manner.
S. Daniel Carter is the director of the 32 National Campus Safety Index.
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