1. 4/25/2012
Jeffrey Powell
Candidate for
Assistant Dean for Judicial Affairs
The Dear
Colleague
Letter of
April 4, 2011
How must
institutions
respond?
April 25, 2012
Jeffrey Powell – University of North Dakota – April 25, 2012
My favorite icebreaker is “two truths
and a lie.”
Peanut Butter M&Ms are my favorite sold-instores snack.
I spent a night in a Russian police
station.
Every school where I’ve worked or studied
has won an NCAA national championship
while I was there.
My desk is always neat and tidy.
I enjoy teaching in addition to my “day” job.
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2. 4/25/2012
Every school where I’ve worked or studied has won
an NCAA national championship while I was there.
Oklahoma – Football *
Tennessee – WBB
Connecticut – WBB
Colorado @ Boulder – Skiing
Northern Colorado – Football *
Maine – MIH
First, a little history and perspective
 Title IX in place for more than 35 years.
 Title IX is generally applied to, and discussed in
terms of, athletics.
 There is a 2001 document from ED about the
institutional responses to Sexual Harassment.
Every school where I’ve worked or studied has won
an NCAA national championship while I was there.
Aims Community College
University of North Dakota
Title IX Act
 Title IX of the Educational Amendments of 1972
(Title IX), 20 U.S.C. §1681 et seq., and its
implementing regulations, 34 C.F.R. Part 106
 Prohibits discrimination on the basis of sex in
education programs or activities operated by
recipients of Federal financial assistance.
 Sexual harassment of students, which includes
acts of sexual violence, is a form of sex
discrimination prohibited by Title IX.
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3. 4/25/2012
Title IX prohibits Sexual Harassment of:
What’s happening in Washington?
 General concerns among democrats about Bush
 Student by Faculty Member
 Student by Student
 Faculty Member by Student
 Student by a third party
 Student by any university employee
Other laws protect employees from sexual
harassment/discrimination
administration management of national educational
priorities.
 The election of Mr. Obama and the beginning of his
administration in January, 2009, installs cabinet and
subcabinet leadership in the Department of
Education who believe governmental rules should
be changed.
March 2011
 Members of Yale University Delta Kappa Epsilon
fraternity in a quad, chanting, “No means yes! Yes
means anal!”
 A voiced public opinion arises that Yale administration’s
inadequately responds to both this and other incidents
of sexual harassment and assault.
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4. 4/25/2012
Sexual Violence
 Sexual violence refers to physical sexual acts perpetrated
against a person’s will or where a person is incapable of
giving consent due to the victim’s use of drugs or
alcohol. An individual also may be unable to give consent
due to an intellectual or other disability.
…and so, the Letter is
announced in April, 2011, by
Vice President Biden
 A number of different acts fall into the category of sexual
The Letter cites these statistics:
The Letter cites these statistics:
 in 2009, college campuses reported nearly 3,300
forcible sex offenses as defined by the Clery Act
 an estimated 20% of women and 6.1% of men are
victims of completed or attempted sexual assault
during college
• violence against women who are intellectually
vulnerable is disproportionately higher
• victims of sexual assault are more likely to suffer
academically and from depression, post-traumatic
stress disorder, to abuse alcohol and drugs, and to
contemplate suicide.
violence, including rape, sexual assault, sexual battery,
and sexual coercion. All such acts of sexual violence are
forms of sexual harassment covered under Title IX.
 in 2009, college campuses reported nearly 3,300
forcible sex offenses as defined by the Clery Act
 an estimated 20% of women and 6.1% of men are
victims of completed or attempted sexual assault
during college
• There are some who contest these statistics as
exaggerated. The reported statistic for the rate-ofreported rapes for the Detroit metro area in 2009
was 33 in 100,000 citizens.
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5. 4/25/2012
What is the Dear Colleague Letter?
Three alternatives
1. A “best practices” document, guiding institutional
response.
2. A yardstick by which the University will be
measured as it relates to its institutional response
to sexual harassment.
3. A document in which lawyers in DC, who are not
themselves educators, dictate to “us” how “we”
should do our job.
Principles
Examples of this reframed “balance”
 Institution must use “Preponderance of the
Information” standard.
 Complainant Student has all rights afforded the
Respondent Student in disciplinary process.
 Institution must complete an “investigation” that is
prompt, thorough, and impartial.
 Institution must determine, consistent with State
and local law, whether appropriate law
enforcement or other authorities should be
notified.
 “The Law” is about balance
Individual rights vs. Community responsibly
Another example of the law and struggles of implementing the
law include the balance between the Anti-Establishment Clause
and Freedom of Assembly (“the Hastings case”).
 One way of looking at the “Dear Colleague Letter” is that it has
the effect of resetting the balance as it relates to sexual
misconduct. It has the purpose of addressing the sense that
sexual assault, sexual harassment, and other acts of sexual
violence both (a) disproportionately effects women and other
victims of sexual violence, and (b) the standard for demonstrating
that a violation has occurred should be “easier” than the criminal
standard to prove, determine, or react institutionally.


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6. 4/25/2012
Notice of Harassment
University violates Title IX regulations if the
school “has notice” of a sexually hostile
environment and fails to take immediate and
effective corrective action.
Notice = responsible employee “knew, or in the
exercise of reasonable care should have
known,” about harassment.
Another example of this reframed “balance”
 “the school may weigh the request for
confidentiality (when the complainant requests it)
against the following factors: the seriousness of the
alleged harassment; the complainant’s age;
whether there have been other harassment
complaints about the same individual; and the
alleged harasser’s rights to receive information
about the allegations if the information is
maintained by the school as an “education record”
under (FERPA)”
Notice of Harassment
•
are there parts of our culture where women
might be exploited because of their sexuality?
•
ROTC, RA, Band, or Student Leaders Training, Field Trips, or “Initiation” activities
•
Athletic Department
recruitment or
welcoming teams
•
“Handcuff” parties
What is the Dear Colleague Letter?
1. A “best practices” document, guiding
institutional response.
2. A yardstick by which the University will be
measured as it relates to its institutional
response to sexual harassment.
3. A document in which lawyers in DC, who are
not themselves educators, dictate to “us”
how “we” should do our job.
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7. 4/25/2012
SRC Rules changed due to DCL
Newly listed rights in the UND
Code of Student Life
There are a lot of things UND has done, for some time, well:
 Institution must use “Preponderance of the
Information” standard.
 Complainant Student has all rights afforded the
Respondent Student in disciplinary process.
 Institution must complete an “investigation” that is
prompt, thorough, and impartial.
There are a lot of things UND has done, for some time, well:
• Written procedures for resolving complaints of
sex discrimination
• Grievance procedures be prominently posted
[and broadly distributed].
• Coordinate with police investigation, but do not
rely on or wait for the conclusion of a police
investigation.
 Institution must determine, consistent with State
and local law, whether appropriate law
enforcement or other authorities should be notified.
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8. 4/25/2012
There are a lot of things UND has done, for some time, well:
What is the Dear Colleague Letter?
1. A “best practices” document, guiding
institutional response.
• Training:
Investigators and SRC members must have
training in sexual harassment (of which sexual
violence is a subset) issues.
2. A yardstick by which the University will be
measured as it relates to its institutional
response to sexual harassment.
3. A document in which lawyers in DC, who are
not themselves educators, dictate to “us”
how “we” should do our job.
…just a little more history
 Card 1
 Ohio University
 Card 2
 Eastern Michigan
 Yale (one of the
situations described
earlier)
 Card 3
 Notre Dame
When OCR finds that a school has not taken prompt and
effective steps to respond to sexual harassment or
violence, OCR will seek appropriate remedies for both the
complainant and the broader student population. When
conducting Title IX enforcement activities, OCR seeks to
obtain voluntary compliance from recipients. When a
recipient does not come into compliance voluntarily, OCR
may initiate proceedings to withdraw Federal funding by
the Department or refer the case to the U.S. Department
of Justice for litigation.
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9. 4/25/2012
So, what are the effects?
1. National attention to the release of the Letter,
including by folks in my professional organization.
2. Lots of “learning opportunities,” such as webinars,
preconference sessions, and written guidance.
(It’s always hard to know which ones will be
valuable and which will be more mundane.)
3. Emphasis on training, balance, and equity to
students involved in a complaint.
How must institutions respond?
 Response must be prompt.
 Institutional actions intended to protect the
complainant
 Must conduct an investigation.
 Provide for an equitable and prompt resolution.
How must institutions respond?
 Response must be prompt.
 Institutional actions intended to protect the
complainant
 Must conduct an investigation.
 Provide for an equitable and prompt resolution.
Protecting the Complainant
 Notify complainant of his/her options to avoid
contact with the alleged perpetrator (one example
is the assignment of a “no-contact directive”).
 Allow students to change academic or living
situations (with minimal burden on the
complainant).
 Make complainant aware of counseling resources,
health and mental health resources, local law
enforcement.
 Ensure that complainant is aware of process for
reporting retaliatory harassment from alleged
perpetrator or his/her associates.
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10. 4/25/2012
Duty to Investigate
 Institution has a duty to conduct its own
investigation.
 Should inform and obtain consent from
complainant before beginning investigation.
(Though sometimes we must proceed without
consent if in best interest of the rest of the
community.)
 Complainant should be informed that we cannot
ensure confidentiality—we have an obligation to
notify others (examples include law
enforcement, campus Title IX officer, colleagues
with an “educational need to know).
 Institutional response must be
The Dear
Colleague
Letter of
April 4, 2011
How must
institutions
respond?
prompt.
 Institutional actions intended to
protect the complainant
 Must conduct an investigation.
 Provide for an equitable and
prompt resolution.
Jeffrey Powell – University of North Dakota – April 25, 2012
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