Confidentiality and Title IX

by Bond Schoeneck & King PLLC
Contact

In OCR’s April 2011 Dear Colleague Letter, OCR referenced a covered institution’s obligations in the face of knowledge of sexual harassment/misconduct and a victim’s request for confidentiality and/or that the institution not act on the report, but did not provide particularly helpful guidance on how an institution is to balance those competing concerns.  Its recent Questions and Answers on Title IX and Sexual Violence (“Q&A”) provide a little more help.

Title IX requires that an institution with notice of sexual harassment/misconduct act to end and remedy that harassment/misconduct.  Notwithstanding this obligation, OCR has made clear that it “strongly supports” a student’s interest in confidentiality and, while it recognizes that there may be instances where an institution must deny a student’s request for confidentiality in order to meet its Title IX obligations, it has now characterized those instances as “limited,” noting that even then information should only be shared with those individuals responsible for handling the institution’s response to the situation.

OCR’s Q&A confirms that when confronted with a student request for confidentiality, the institution must inform the student that honoring that request may impair the institution’s ability to fully investigate and respond to the incident (including disciplining or taking other action against a perpetrator).  As part of that discussion, the institution needs to explain to the student Title IX’s prohibition against retaliation, that it will take steps to prevent retaliation, and that it will take “strong responsive action” if retaliation occurs.

If a student still insists upon confidentiality, the institution is required to balance that request against its obligation to provide a safe and nondiscriminatory environment for all students, including the reporting student.  While not required, OCR believes that this is a determination best made by the Title IX coordinator.  The Q&A lists a number of factors to be considered in making this determination:

  • Have there been other complaints of sexual harassment/misconduct against the alleged perpetrator?
  • Does the alleged perpetrator have a history of arrests or records from a prior school indicating a history of harassment/misconduct?
  • Has the alleged perpetrator threatened further sexual harassment/misconduct against the complainant, or others?
  • Was the harassment/misconduct perpetrated by multiple individuals?
  • Does the report of harassment/misconduct reveal a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group)?
  • Was a weapon involved?
  • Are there other means of obtaining relevant information?

If an institution determines that it cannot provide confidentiality, it should inform the student prior to making any disclosure.  In addition, the institution needs to consider interim measures necessary to protect the student and ensure the safety of other students.  If the reporting individual requests the institution to inform the alleged perpetrator that he or she had asked the school not to investigate or seek discipline, the institution should honor that request and inform the alleged perpetrator that the decision to proceed is an institutional decision.

In situations where an institution determines that it can honor a request for confidentiality, the institution is not relieved of its duty to act.  There may be any number of steps an institution may take, and may have to take, without identifying the reporting individual or commencing disciplinary proceedings.  For example, the Q&A specifically references increased monitoring, supervision or security at locations or activities where the misconduct occurred; providing training and educational materials for students and staff; changing or publicizing the institution’s policies on harassment/misconduct; and conducting climate surveys on harassment/misconduct. Where many students are involved, an alleged perpetrator may be put on notice of the allegations and counseled appropriately, without revealing the identity of any reporting student.

Finally, even where confidentiality is provided, institutions must take other steps (beyond confidentiality) necessary to protect the reporting individual, including providing support services and/or changing living arrangements, course schedules, assignments or tests.

Certainly, OCR’s recent Q&A provides clearer insight into OCR’s view of requests for confidentiality (which are usually actually requests that the institution “not do anything”).  However, institutions should understand that even this amount of guidance does not answer all of the vexing questions, or insulate an institution from all possible liability, in the face of a request for confidentiality.  Unfortunately,   hindsight is 20/20.  If an institution honors a request to not proceed with disciplinary action, and if the perpetrator offends again, it may very well be that OCR (or, even worse, a jury) may conclude that the institution made the wrong call.  Conversely, if an institution pursues a perpetrator over a victim’s objections, and if the victim suffers extreme distress as a result, the institution may be found at fault for that situation.

In sum, while OCR’s guidance is helpful, the landscape remains a dimly lit path fraught with “damned if you do; damned if you don’t” eventualities.  Institutions will need to proceed with caution and with a full view of the consequences of any decision.  It pays to recall that, while OCR’s view is a major consideration, it is not the only consideration or source of potential liability or backlash.  Unfortunately, real life situations rarely reduce to simple decisions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bond Schoeneck & King PLLC | Attorney Advertising

Written by:

Bond Schoeneck & King PLLC
Contact
more
less

Bond Schoeneck & King PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.