The Basics of Complying With the “Dear Colleague” Letter Issued by the U.S. Department of Education on April 4, 2011

This is part one of a four-part series discussing compliance with the “Dear Colleague” Letter on Sexual Violence issued by U.S. Department of Education Office for Civil Rights (OCR) on April 4, 2011, as well as subsequently issued guidance and recently adopted statutes addressing sexual harassment and sexual violence under Title IX of the Education Amendments of 1972. Part one addresses Title IX compliance under the April 4, 2011 “Dear Colleague” Letter. Part two will address OCR’s April 24, 2013 “Dear Colleague” Letter on retaliation, including retaliation claims under Title IX. Part three will address the Campus Sexual Violence Elimination Act, which amended the Higher Education Act of 1972 (the HEA) and imposes new reporting requirements under Title IX and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (the Clery Act). Part four will address the Letter of Findings and Resolution Agreements with the University of Montana regarding Title IX of the HEA, issued by OCR on May 9, 2013.

Part One

According to the “Dear Colleague” Letter (DCL) issued by the U.S. Department of Education on April 4, 2011, there are three steps colleges and universities must take to comply with Title IX of the Education Amendments of 1972:

1. Distribute notice of nondiscrimination to students, employees, and other members of the campus community;
2. Designate a Title IX coordinator to oversee Title IX compliance and handle complaints; and
3. Adopt and publish Title IX grievance procedures that provide “prompt and equitable resolution of student and employee sex discrimination complaints.”

The DCL provides detailed guidance concerning Title IX requirements and how they relate to sexual harassment and sexual violence, discusses proactive efforts schools can take to prevent sexual violence and educate employees and students, and provides examples of the types of remedies institutions and the OCR may use to respond to sexual violence.

Basic steps for complying with the DCL’s requirements follow.

1.         Designate One or More Institutional Title IX Coordinators

Title IX requires institutions that receive federal financial assistance to designate at least one professional employee as its Title IX coordinator for handling sexual harassment complaints and overseeing Title IX compliance efforts. The coordinator must understand the institution’s obligation to address allegations of sexual harassment, including sexual violence, receive training on what constitutes sexual harassment and sexual violence, be familiar with the institution’s grievance procedures, and know how to conduct investigations and maintain a documentation system that complies with Title IX procedures. Because Title IX prohibits sex discrimination against students and employees, this includes compliance related to gender discrimination, sexual harassment, retaliation, and sexual assault, as well as athletics. Coordinators should be familiar with the procedures, policies, and training mechanisms that the institution already has in place for addressing campus sexual harassment, sexual violence, and, ideally, Title IX’s application to athletics. The coordinators should then work with in-house legal counsel to draft Title IX policies and complaint procedures.

Title IX applies to hiring, recruitment, compensation, job assignments, classifications and descriptions, leave, admissions, educational programs and activities, course offerings and access, counseling, financial aid, employment assistance, facilities and housing, health and insurance benefits, marital and parental status, and scholarships.  Therefore, it is vital that Title IX coordinators receive training that will enable them to handle the position’s multiple responsibilities. The institution must advertise the policy and the Title IX coordinator’s contact information in institutional publications including the student handbook, employee handbooks, and/or the annual Clery Act report in addition to publications directed to alumni, applicants, faculty, and staff.  For more information concerning Title IX publication requirements, see part 3, infra.

Many institutions divide Title IX coordinator duties between a Title IX coordinator and co-coordinators or deputy coordinators whose responsibilities are split between athletics, human resources, and student affairs. It is generally accepted outside the sexual harassment context that the substantive standards and policies developed under Title VII apply with equal force to employment actions brought under Title IX.  As such employees can and do bring Title IX employment actions. For example, in October 12, 2012, Susan Burhans, a former education coordinator for the Yale Police Department, filed a $10 million lawsuit against Yale alleging that her efforts to promote compliance with Title IX and related laws led to her dismissal (Yale is also currently facing an unrelated $165,000 fine based on violations of the Clery Act.)

As such, best practice dictates that the institutional official responsible for investigating employee sexual harassment and sex discrimination complaints also be responsible for employee complaints under Title IX. Similarly, the institutional official responsible for investigating and responding to student complaints of sexual harassment or sex discrimination should serve as a Title IX coordinator or co-coordinator for student matters. The third Title IX co-coordinator could be one of the university’s athletics compliance officers.

Arizona State University (ASU) provides an impressive example of how this approach can be implemented. As its Title IX website demonstrates, an institution’s Title IX responsibilities can be divided among existing employees. ASU has a Title IX Coordinator and three deputy coordinators: one for students, one for athletics, and one for faculty, staff and visitors.

2.         Train the Title IX Coordinators

Title IX has always required that institutions designate an individual on campus to coordinate Title IX compliance. The DCL clarified the Title IX coordinator’s role and the training that the Title IX coordinator must have. This includes training on investigating sexual harassment complaints.  Any other employees who will be implementing the Title IX grievance procedures also require training. They must know how to identify sex discrimination and how to implement the institution’s grievance procedures.

Campus Title IX coordinators and other administrators with Title IX responsibilities must receive adequate training, starting with the Title IX coordinator, both because he or she is responsible for Title IX compliance and because the Title IX coordinator should be involved in training other employees, departments, and students. Co-coordinators and others who will be assisting the Title IX coordinator should also receive the earliest training, particularly in the area of conducting investigations. The training should also include practical information about how to identify and report sexual harassment and violence, and confidentiality requirements. OCR also recommends that this training be provided to any employee likely to witness or receive reports of sexual harassment and violence, including teachers, school law enforcement unit employees, school administrators, school counselors, general counsel, health personnel, and resident advisors. Section four below includes additional training recommendations

3.         Adopt and Publish a Title IX Policy and Complaint Procedure

Title IX requires that schools adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints. The grievance procedures must apply to sex discrimination complaints filed by students against school employees, other students, or third parties. Title IX does not require a separate grievance procedure for sexual harassment and sexual violence complaints; therefore student and employee disciplinary procedures or other separate procedures may be used to resolve Title IX complaints. However, any procedures used to adjudicate complaints of sexual harassment or sexual violence, including disciplinary procedures, must satisfy Title IX’s requirement of “affording a prompt and equitable resolution.” The policy must explain how a student can file a complaint and what will happen after he or she makes a complaint. The policy must also provide notice to parties of the outcome of the complaint.

Throughout an institution’s Title IX process, including at any hearing, the complainant and respondent must have an equal opportunity to present witnesses and other evidence. The complainant and respondent must also be allowed similar and timely access to any information that will be used at the hearing.  In addition, Title IX requires that specific time frames be established for resolution of complaints and the evidentiary standard applied at hearings must be a preponderance of the evidence. The policy must also list the resources that the institution makes available to address cases of sexual assault. . Institutions are urged to review the DCL to ensure that their policies contain all the necessary provisions.

Once an institution adopts a Title IX policy, it should both publish the policy and distribute a Title IX notice of nondiscrimination to students, employees, and other members of the campus community. The best way to begin is by adopting a distribution plan. Here are some steps to take when adopting a distribution plan:

a.         The college or university website should be updated to include the institution’s Title IX-compliant nondiscrimination statement, policy, complaint procedure, and contact information for its Title IX coordinator(s).

b.         The president of the university should issue a statement at least once per academic year via email containing the college’s or university’s Title IX nondiscrimination policy and identifying the institutional Title IX coordinator and EO officer.

c.         The responsible vice president for institutional publications should review all publications and ensure that updated versions, whether in hard copy or online, include the institution’s Title IX statement of nondiscrimination.

d.         The president or Title IX coordinator of the institution should request that all employee and student organizations, including Panhellenic organizations, issue statements to their members and constituents regarding the institution’s Title IX nondiscrimination policy and prevention of sexual harassment policy.

Institutions looking for an all-purpose nondiscrimination statement can use the following, which satisfies Title IX as well as Titles VI and VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, Internal Revenue Service Rev. Proc. 75-50 (1975 2 C.B. 587), and the Age Discrimination Act of 1975, which prohibits discrimination on the basis of age in programs and activities receiving federal financial assistance :

DRAFT

Statement of Nondiscrimination

____________________ University does not discriminate on the basis of race, color, national origin, ethnic origin, sex, age, disability, or protected veteran’s status in employment or the rights, privileges, programs, and activities generally accorded or made available to students at the school, administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs. This statement of non-discrimination applies to educational programs, educational policies, admissions policies, educational activities, employment, access and admission, scholarship and loan programs, and athletic and other school-administered programs. Inquiries regarding compliance with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 or other civil rights laws should contact one of the following individuals:

Title IX coordinator(s)

Name(s) and/or Title(s)
Physical Address (building and room number, not a post office box)
Telephone number __________________

Section 504 Coordinator/Disability Access and Accommodation

Name and/or Title
Physical Address (building and room number, not a post office box)
Telephone number __________________

Equal Opportunity Coordinator

Name and/or Title
Physical Address (building and room number, not a post office box)
Telephone number __________________

For further information on this notice of nondiscrimination, visit the U.S. Department of Education for the address and phone number of the office that serves your area, or call 1-800-421-3481.

Applicants in need of a disability accommodation are encouraged to contact the University’s Section 504 Coordinator/Disability Access and Accommodation, Name and/or Title, Physical Address (building and room number), Telephone No. __________________ (TTY) _____________  at any time prior to application or after acceptance to the University.

4. Additional Training

When compared to the OCR’s 2001 Title IX guidance, the DCL variously mandates or suggests Title IX training for a wide variety of individuals, including athletes, coaches, resident advisers, and campus police officers. The DCL also includes guidelines for prevention and awareness programs, such as designating an on-call representative from counseling services to field complaints and including Title IX information in new student and employee orientation.

In addition to the Title IX Coordinator and the persons listed above, the OCR recommends that institutions provide training to “any employees likely to witness or receive reports of sexual harassment and violence . . ..”  Therefore, it is recommended that institutions prioritize who is trained and in what order. As noted above, the Title IX Coordinator is the first person who should receive training, both because he or she is responsible for Title IX compliance and because he or she should be involved in training other employees, departments, and students. Co-coordinators and others who will be assisting the Title IX Coordinator should also receive the earliest training.

Once the Title IX Coordinator’s training and the training of those persons who will be assisting the coordinator have been completed, the next step is to train the campus police. The DCL recommends this training because many complainants’ initial complaint or report of sexual violence is made to the campus police department. The DCL states the following with regard to campus law enforcement:

Because sexual violence complaints often are filed with the school’s law enforcement unit, all school law enforcement unit employees should receive training on the school’s Title IX grievance procedures and any other procedures used for investigating reports of sexual violence. In addition, these employees should receive copies of the school’s Title IX policies. Schools should instruct law enforcement unit employees both to notify complainants of their right to file a Title IX sex discrimination complaint with the school in addition to filing a criminal complaint, and to report incidents of sexual violence to the Title IX coordinator if the complainant consents. The school’s Title IX coordinator or designee should be available to provide assistance to school law enforcement unit employees regarding how to respond appropriately to reports of sexual violence. DCL, p. 7.

As a part of the institution’s Title IX obligations, its law enforcement personnel must notify complainants of their right to file a Title IX complaint with the institution in addition to the right to file a criminal complaint. Therefore, the college or university must ensure that all enforcement officials are provided with copies of the university’s Title IX policies and grievance procedure.

In addition to stating that Title IX coordinators must have training or experience in handling complaints of sexual harassment and sexual violence and the recipient’s grievance procedures, the DCL strongly recommends training for hearing board members, including student members. According to the DCL, complaints related to sexual assault are different from complaints concerning academic dishonesty or general misconduct for which hearing members typically receive training. In sexual violence cases, the fact-finder and decision-maker should have adequate training or knowledge regarding sexual violence.

Conclusion

The best source for guidance concerning compliance with the April 4, 2011 OCR “Dear Colleague” Letter is the letter itself.  Additional sources of information include the U.S. Department of Education Office for Civil Rights website and in particular, the OCR reading room.