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The Role of Outside Counsel In Title IX Compliance


June 9, 2011

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any federally funded education program or activity. Sexual harassment of students, which includes acts of sexual violence, is discrimination prohibited by Title IX.

On April 4, 2011, the Department of Education (“DOEd”) issued guidelines for colleges and schools to address sexual violence on campuses. The guidelines came in the form of a 19 page “Dear Colleague” letter (“Letter”). At first blush, the Letter seems directed only to school administrators, in-house counsel, and Title IX coordinators. Upon closer examination however, there is a significant role to be played by outside counsel in helping schools accomplish the directives stated in the Letter.

The Prompt and Equitable Requirements of Title IX

A significant section of the Letter is devoted to clarifying the procedures schools must have in place to comply with Title IX. In the Letter, DOEd listed the following elements as critical to achieving compliance with the prompt and equitable requirements of Title IX:

  • Notice to students, parents and employees of the grievance procedures including where complaints may be filed; The DOEd recommends that the grievance procedures be prominently posted on school websites; sent electronically to all members of the school community and be disseminated in a variety of other ways;
  • Application of the procedures to complaints alleging harassment carried out by employees, other students, or third parties;
  • Adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence;
  • Designated and reasonably prompt time frames for the major stages of the complaint process;
  • Notice to the parties of the outcome of the complaint; and
  • An assurance that the school will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.

A School’s Duty to Conduct an Independent Investigation

With respect to the adequate, reliable, and impartial investigation of complaints, the Letter makes clear that schools are under an independent obligation to investigate a complaint. Often a perpetrator’s conduct may be considered criminal as well as Title IX sexual harassment. Although police investigations and reports are useful tools for fact gathering, a school cannot rely on these documents to determine whether there was sexual violence under Title IX and therefore, must conduct its own fact-finding. Similarly, a school must not wait for a criminal investigation or proceeding to conclude before commencing its Title IX investigation.

Accordingly, a school must be prepared to launch its investigation immediately following an alleged victim’s complaint. Outside counsel can play a vital role in planning the course and scope of the independent investigation. Specifically, counsel can offer insight and advice on the following critical decisions that need to be made at the outset of any independent investigation:

  • Which school personnel should participate in the fact-gathering stage?
  • What does it mean to use the “preponderance of the evidence” standard to evaluate complaints?
  • Should the grievance procedures for sexual harassment and sexual violence claims be separate from general grievance procedures?
  • Should the school consider creating an appeals process for sexual violence claims?

The Fact-Gathering Process

Outside counsel can offer fresh perspectives on selecting appropriate school personnel to participate in the fact gathering stage of the investigation. For example, if either the alleged victim or perpetrator is an athlete, neither the coach nor the head of the athletic department should be involved in the investigation. Depending on the complexity of the facts and circumstances, outside counsel could directly assist in the investigation as an unbiased and neutral fact-gatherer. By using outside counsel, conflicts of interests are avoided and importantly, impartiality is achieved.

The Letter also highlighted that schools that are applying the “clear and convincing” standard to review complaints, are using a higher standard of proof than is permitted under Title IX and must begin using the “preponderance of the evidence” standard. Again, outside counsel, many of whom lead active practices, are well versed in using the preponderance of the evidence standard and thus, would be the best assessors of whether a school’s investigations are in keeping with the preponderance of the evidence standard. Outside counsel can also provide clear written guidance on this lower standard of proof or offer on-site training to relevant school personnel so that these individuals can fairly assess the merits of a complaint at the earliest stages of the fact-gathering process.

Assessing the Need for a Separate Grievance Procedure

Additionally, outside counsel can offer invaluable insight on whether a school’s existing grievance procedure is unbiased, impartial and equitable to both parties as mandated by Title IX. Schools must carefully consider whether separate grievance procedures are necessary for sexual harassment and sexual violence investigations. Although the Letter and the DOEd’s regulations do not require schools to have separate grievance procedures or to create an appeals process, the procedural safeguards required by Title IX are of the utmost importance for both the alleged victim and alleged perpetrator. Again, outside counsel can offer a range of services to assist schools with implementing these procedural safeguards. Outside counsel can initially assess the costs and benefits of having a separate grievance procedure or implementing an appeals procedure. Alternatively, they can use their expertise to draft a set of grievance policies specifically for sexual harassment and sexual violence cases.

Conclusion

In sum, an independent and impartial investigation requires an unambiguous set of policies, practices and procedures. To avoid the pitfalls of not complying with Title IX, a school should have a plan of action for reviewing and/or amending its current grievance procedures as applied to sexual violence cases. As part and parcel of that action plan, outside counsel can and do play a vital role in helping schools achieve prompt and equitable proceedings that are at the heart of Title IX.

This article is reprinted with permission from the June 9, 2011 issue of The Legal Intelligencer. Copyright ALM Properties Inc. Further duplication without permission is prohibited. All rights reserved.