Title IX professionals are feverishly working towards an overhaul of their sexual misconduct policies and procedures to meet the August 14th deadline set out by the Department of Education. Part of this analysis includes identifying the Title IX team (Investigators, Decision Makers, Informal Resolution Facilitators), who institutions are mandated to train under the new regulations. In addition, institutions are identifying how they will treat non-Title IX sexual misconduct going forward, which is conduct that does not meet the new Title IX definition of sexual harassment or occur within the jurisdictional requirements set forth in the new regulations.
For institutions that are bifurcating their process and sending non-Title IX conduct to student conduct and/or human resources to handle, the question becomes whether those investigators/decision makers still need training on sexual misconduct.
The short answer is yes. Student conduct/HR investigators and decision makers must still be trained under Clery/VAWA. VAWA crimes are now imputed in the Title IX sexual harassment definition – sexual assault, domestic violence, relationship violence and stalking. The jurisdictional requirements of Title IX, however, are not aligned with the Clery Act geography. It is therefore conceivable that an institution could have alleged conduct that meets the definition of sexual assault and occurred outside of the Title IX jurisdictional requirement but within the institution’s Clery geography, for example. Thus, training for student conduct/HR administrators handling those matters must meet the Clery/VAWA requirements (as should your hearings).
Training should include the following information:
- How to conduct and document an adequate, reliable and impartial investigation
- How to conduct an investigation and hearing process that protects the safety of victims and promotes accountability
- That both parties are entitled to have an advisor of their choice present for all investigative or disciplinary proceedings (although the institution may limit the participation of the advisor)
- That both parties must be simultaneously informed in writing of the outcome of the disciplinary proceeding
- That both parties must be notified of any changes in results that occur prior to when the results become final and will be notified when the results are final
- Prohibitions and protections against retaliation
In addition, your code of conduct must list any possible sanctions and protective measures an institution may impose following disciplinary procedures.
There is no question that the decision on how to move forward for each institution in re-working these policies and procedures is not an easy one. There is no right or wrong process, so long as it meets Title IX and Clery/VAWA. If your institution is proceeding with a bifurcated process, be sure to avoid the silo effect. Your Title IX Coordinator, HR professionals and student conduct professionals need to be in regular communication and at the table for these decisions to ensure everyone is adequately trained and the institution can not only meet its legal obligations, but provide a fair and equitable process for the parties involved.
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