Questions and Answers on Title IX and Sexual Violence: Five Key Questions That Have Actually Been Answered – and Five New Questions

by Saul Ewing Arnstein & Lehr LLP

On April 29, 2014, the Office for Civil Rights of the United States Department of Education (“OCR”) issued a “significant guidance document” that sought to address many of the questions that arose in the wake of the April 4, 2011 Dear Colleague Letter.  This April 29, 2014 Q+A Document is 46 pages long, and will not be summarized in detail here.  This note talks through five key questions that the Q+A actually does answer, and five new questions that this Q+A, itself, has created.

Five Key Questions, Answered

            Q1:  Does Title IX apply to transgender students?

            A1:  Yes.

            Q2:  Should we have a full-time Title IX coordinator?

            A2:  Yes.  While not mandatory, “designating a full-time Title IX coordinator will minimize the risk of a conflict of interest.”

            Q3:  When does our institution have “notice” of “possible” sexual violence that requires us to take “immediate and appropriate steps to investigate or otherwise determine what occurred?”

            A3:  Whenever a responsible employee knows, or in the exercise of reasonable care should have known, about an incident of sexual violence.

            Q4:  Who is a “responsible employee?”

            A4:  Any employee who:

                        • Has the authority to take action to redress sexual violence;

                        • Has been given the duty to report incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or

                        • A student could reasonably believe has such authority or duty.

            Q5:  Do we have to investigate incidents of sexual violence shared during “Take Back the Night” and similar events?

            A5:  No, although institutions should still offer counseling, health, and mental health services.

Five New Questions, Raised

            Q1:  How broad is the responsible employee definition intended to be? The Q+A defines a

responsible employee to include those who have the duty of reporting “any other misconduct by students” to an “appropriate school designee.”  Professors, for example, almost certainly have the duty to report academic misconduct.  Does this mean they are all responsible employees for Title IX reporting purposes?

            Q2: How much discretion does an institution have in determining whether a claim is credible and warrants further action?  The Q+A indicates that a school must take “immediate and appropriate steps to investigate or otherwise determine what occurred” once a responsible employee is on notice of possible sexual violence.  However, in this same section (D-2), the Q+A states that “if the school determines that sexual violence created a hostile environment, the school must then take appropriate steps to address the situation.”  What if the school determines that it is unclear whether the sexual violence created a hostile environment; e.g., it is just not apparent what happened?  Can the school decline to move forward with disciplinary proceedings, even if the complainant would like to, because the school has not determined that a hostile environment was created?

            Q3:  How do we best capture, and convey, the “mostly-confidential” reporting sources on campus?  Campus mental-health counselors and pastoral counselors are not “responsible employees” and need not report – understood.  But what are the exact contours of the “confidentiality” afforded to “social workers, psychologists, health center employees,” or others who have some sort of confidential relationship with a student but are not mental-health or pastoral counselors?  While the Q+A says that “OCR strongly encourages schools to designate these individuals as confidential sources,” when you actually read the Q+A, the information being provided is not actually kept completely confidential – these folks still are told to report the nature, date, time, and general location of the incident to the Title IX Coordinator, and, it appears, should also generally report the perpetrator’s name.  How do we best explain to our students exactly what the nature of this “confidentiality” is?

            Q4:  Realistically, should everyone receive some sort of training?  Section J of the Q+A discusses training for students, and for responsible employees, but also indicates that “all employees” likely to witness or receive reports of sexual violence should receive training.  Is there anyone OCR believes, as a categorical matter, does not require training?

            Q5:  Retaliation:  What does an institution do when a respondent files a claim of “false charges” against the complainant?  How about when the respondent files a lawsuit against the complainant, asserting defamation or other claims?  Is that per se retaliation?  What “strong responsive action” would OCR suggest that the institution take?  Is OCR suggesting that the institution can somehow prevent a respondent from exercising her/his right to bring a civil claim?  If the institution ignores or declines to pursue the “false charges” student conduct claim on the grounds it is retaliation, isn’t that creating a different type of Title IX risk?

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.

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