confidential © 2009 barnes & thornburg llp. all rights reserved. this page, and all information...

CONFIDENTIAL

© 2009 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.

Title IX: Risks and Responsibilities forStudent-on-Student Sexual Harassment and Assault

Olivet CollegeFall Employee Forum

August 27, 2010

Donald P. LawlessBarnes & Thornburg LLP

171 Monroe Avenue, N.W., Suite 1000Grand Rapids, MI 49503

Telephone: (616) 742-3994E-Mail: [email protected]

CONFIDENTIAL


Agenda

• Background

• Sexual Harassment/Assualt

• Title IX

– Responsibilities

– Potential liabilities

– Conflicts with other duties

• Scenarios to discuss

• Final thoughts

CONFIDENTIAL


Title IX Background

• Title IX was enacted on June 23, 1972

• Purpose – prevent discrimination on the basis of sex

• Covers sexual harassment and assault perpetrated by peers and individuals in a position of power (university employees)

CONFIDENTIAL


Sexual Harassment

• The U.S. Dep’t of Ed. defines sexual harassment as the unwelcomed conduct of a sexual nature

• Includes sexual advances; requests for sexual favors; and other verbal, nonverbal, or physical conduct of a sexual nature

• Broad definition, determined by each unique situation

CONFIDENTIAL


Sexual Harassment – Frequency

American Association of University Women’s (AAUW) 2006 study on sexual harassment at colleges and universities found:

• 62% of female college students and 61% of male college students report having been sexually harassed at their university

• 10% or fewer of student sexual harassment victims attempt to report their experiences to a university employee

• 35% or more of college students who experience sexual harassment do not tell anyone about their experiences

• 80% of students who experienced sexual harassment report being harassed by another student or former student

• 39% of students who experienced sexual harassment say the incident or incidents occurred in the dorm

http://www.aauw.org/learn/research/upload/DTLFinal.pdf


CONFIDENTIAL


Sexual Harassment – EffectsThe 2006 AAUW study also found:

• 68% of female students felt very or somewhat upset by sexual harassment they experienced

• 55% of female students who have been sexually harassed reported feeling angry

• 32% female students who have been sexually harassed reported feeling afraid or scared

• 16% of female students who have been sexually harassed found it hard to study or pay attention in class

• 9% of female students dropped a course or skipped a class in response to sexual harassment

• 27% of female students stay away from particular buildings or places on campus as a result of sexual harassment



CONFIDENTIAL


Title IX – Responsibilities

• Universities that receive federal financial assistance are specifically required to comply with Title IX

• Universities have a responsibility to “respond promptly and effectively to sexual harassment” – Dep’t of Ed.

• In student-on-student sexual harassment or assault, the university is responsible to address sexual harassment if the university knows or reasonably should know about the harassment

• Upon notice, the University is required to take “effective corrective actions to stop the harassment and prevent its recurrence”

CONFIDENTIAL


Supreme Court’s Gebser/Davis Four Part Test1. A university official has “actual knowledge” of the

conduct and fails to adequately respond.

2. The official was deliberately indifferent in not taking action to stop the harassment.

3. The university had substantial control over the harasser and the context in which the know harassment occurred.

4. The harassment or assault was so severe, persistent, or pervasive to limit a student ability to participate in or benefit from the education program.

CONFIDENTIAL


Title IX – Knowledge/OCR

• A university has notice if a responsible employee knew or in the exercise of reasonable care should have known about the harassment

• A responsible employee includes: – Any employee who has the authority to take action to redress the

harassment, – Any employee who has the duty to report to appropriate school officials

sexual harassment or any other misconduct by student or employees, or – An individual who a student could reasonable believe has this authority or

responsibility

• If harassment is severe enough and occurs openly (public areas on campus), the university will be deemed to have knowledge

• Broad scope – Olivet personnel must be attentive to signs of harassment and default to reporting if in doubt

CONFIDENTIAL


The Federal Court Rulings

• Williams v. Board of Regents of the University System of Georgia, 477 F.3d 1282 (11th Cir. 2007)

– Sexual assault of students by several student athletes.

– Plaintiff alleged that university officials knew about prior sexual harassment and assaults by lead perpetrator, yet provided no supervision or training.

CONFIDENTIAL



• Court ruled that prior knowledge could provide evidence of deliberate indifference as well as actual knowledge.

• The eight-month gap between the report of the assault and the disciplinary hearing could also provide evidence of deliberate indifference.

• The athletics department had control over the perpetrator and the context in which the harassment occurred.

CONFIDENTIAL



• Simpson v. University of Colorado-Boulder, 500 F.3d 1170 (10th Cir. 2007)

– Two students were assaulted in their off-campus apartment by students and high school football recruits during a recruitment visit.

– University had policy of showing recruits “a good time” that involved access to women students and alcohol. The university knew about prior assaults by recruits and players.

CONFIDENTIAL



• Court found that:

– CU had an official policy of showing high-school football recruits a “good time” on their visits to the CU campus;

– The alleged sexual assaults were caused by CU’s failure to provide adequate supervision and guidance to player-hosts chosen to show the football recruits a “good time;” and

– The likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference.

CONFIDENTIAL



• In both cases, the failure of athletic department staff to take steps to supervise these athletes, to instruct them on the expected standard of behavior, and to take prompt and decisive action against the players after learning of their misconduct, led both courts to conclude that the university, through its coaches and athletic directors, was deliberately indifferent to the problem of sexual assaults by athletes.

CONFIDENTIAL


The State Court Case

• S.S. v. Roc Alexander and the University of Washington, 177 P.3d 724 (Ct. App. Wash. 2008).

– Student alleged that football player sexually assaulted her and that university’s response was inadequate

CONFIDENTIAL



• Court found that the following post-assault behavior by university officials could constitute deliberate indifference:

– Failure to properly investigate a claim of discrimination or harassment;

– Failure to notify law enforcement of a criminal act (or discouraging a victim from notifying law enforcement);

– Failure to meaningfully and appropriately discipline the student-harasser;

– The institution’s “minimization of the discriminatory import of sexual harassment or assault.”

CONFIDENTIAL



• Court concluded that the rape was severe and the fact that the plaintiff continued to encounter the alleged assailant because of the university’s alleged failure to discipline him was evidence of the “pervasiveness” of the alleged discrimination.

CONFIDENTIAL


Post-Williams and Simpson Litigation• Ross v. Corporation of Mercer University, 506

F.Supp. 2d 1325 (M.D. Ga. 2007)

• Court rejected student’s attempt to pursue Title IX claim after fellow student allegedly assaulted her.

• Court found actual knowledge and potential indifference but ruled that one rape was not sufficiently sever or pervasive to meet the Gebser/Davis test.

CONFIDENTIAL


Post-Williams and Simpson Litigation• J.K. v. Arizona Board of Regents, 2008 U.S.

Dist. LEXIS 83855 (D. Ariz. 9/29/2008).

• Female student alleged that football player had raped her.

• Coach and athletic department officials knew of prior sexual harassment and misconduct by the assailant but allowed him to reside in resident hall where rape occurred.

CONFIDENTIAL


Post-Williams and Simpson Litigation• Court ruled that coach could be held

individually liable under Sec. 1983 through the “state created danger” theory.

• Court found that knowledge of assailant’s prior misconduct could establish both actual knowledge and deliberate indifference.

• Allowing assailant to remain in residence hall for three weeks following rape could also be evidence of deliberate indifference.

CONFIDENTIAL


Post-Williams and Simpson Litigation• Miles v. Washington, 2009 U.S. Dist.

LEXIS 7300 (E.D. Okla. 2/2/2009). Student alleged that coach sexually assaulted her.

• Court cited Simpson’s language re: official policy, pointing to college’s alleged failure to supervise the coach, which allowed him to “live, party, and appropriately interact with students.”

CONFIDENTIAL


Title IX – Action

• Upon reasonable suspicion that an incident of sexual harassment occurred, Olivet employees should report the incident to individuals who have authority to investigate and take corrective action

• Such reporting provides Olivet the opportunity to investigate the incident and determine what occurred

• If the incident is not reported, Olivet is in jeopardy that it will be found in violation of Title IX

• If sexual harassment occurred, Olivet will take reasonable, timely and effective corrective actions tailored to the specific situation

CONFIDENTIAL


Title IX – Violation

• If found in violation of Title IX:

– The victim may file suit against Olivet seeking monetary damages

– Potential for individual liability to Olivet employees under Michigan law

– Olivet may lose federal financial assistance

CONFIDENTIAL


Title IX – Conflicts with Confidentiality• Title IX’s reporting requirements may conflict

with state confidentiality laws or professional rules of confidentiality

• Title IX provides no exceptions to an university employee’s duty to report and correct sexual harassment

• Creates a conundrum with respect to university created confidentiality (university counselor) and mandatory reporting

CONFIDENTIAL


Confidentiality

• If a student complaining of sexual harassment request confidentiality, he or she should be informed that the confidentiality request may limit the school’s ability to respond.

• The complaining student should be told that Olivet prohibits retaliation and that if he or she is afraid of the alleged harasser, the school will take steps to prevent retaliation.

• If the complaining student continues to request that his or her identity be kept confidential, the school should take reasonable steps to investigate and respond to the complaint within the confines of the student’s request.

• Confidentiality should never be promised.

CONFIDENTIAL


Confidentiality

• The institution will take reasonable steps to conduct an investigation or otherwise handle a complaint in as confidential a manner as practical.

• However, those with a need to know (including school officials, witnesses, and those responsible for the investigative and disciplinary processes) shall have access to information concerning the complaint.

CONFIDENTIAL


Scenario #1

• An Olivet faculty member overhears two students discussing that another student in the dorms was sexually assault by a fellow student.

• What is the proper action and what are the issues?

CONFIDENTIAL


Scenario #2

• In one of the classes she teaches, an Olivet professor observes a group of three (3) male Olivet students antagonizing a female student. In one class period, the professor notices that one of the male antagonizers passes the female student a note. At the conclusion of class, the girl hurriedly exits the classroom leaving behind the note. The professor recovers the note and upon reviewing, she realizes the note contains several sexual innuendos. Further, after the note incident, the female student’s class attendance suffers significantly. However, the professor takes no action because “boys will be boys” and the note “isn’t that big of a deal.”

• Were the professor’s actions proper? Any potential liability? What should have been done?

CONFIDENTIAL


Scenario #3

• As part of its student athlete recruiting program, Olivet has potential student athletes visit the college. During one of these recruiting visits, an Olivet coach instructs one of his more spirited student athletes to show an important recruit a good time. That night, the student athlete takes the recruit to a party where, after they consume some adult beverages, the recruit sexually assaults a female student.

• What are the issues and the potential liability for Olivet? Does it depend on what a “good time” means?

CONFIDENTIAL


Scenario #4

• A female student visits an Olivet counselor to discuss a recent incident where she believes she may have been sexually assaulted. The incident involves an Olivet fraternity where the fraternity members create situations where members have an opportunity to physically grope female students’ intimate parts. The fraternity is known for this antic, and the female student believes they will do it again. However, despite this, the female student requests that the Olivet counselor keep this information confidential because she fears the fraternity members will retaliate against her.

• What should the counselor do? Does Olivet face liability if the counselor fails to report the incident?

CONFIDENTIAL


Title IX: Risks and Responsibilities forStudent-on-Student Sexual

Harassment and Assault

Olivet CollegeFall Employee Forum

August 27, 2010

Donald P. LawlessBarnes & Thornburg LLP

171 Monroe Avenue, N.W., Suite 1000Grand Rapids, MI 49503

Telephone: (616) 742-3994E-Mail: [email protected]

confidential © 2009 barnes & thornburg llp. all rights reserved. this page, and all information...

Documents