Managing Sexual Harassment and Violence On Campus
Applying Title IX and the Clery Act to incidents
Posted Sep 11, 2017
Protecting Our Students
Luskin Learning Psychology Series, No. 39
Sexual harassment and violence complaints are increasing in all segments of education. As Chancellor of California’s Ventura County Community College District, Vice Chancellor, Educational Services, Rick Post, Esq., and I worked with Community College Presidents Greg Gillespie, Luis Sanchez, Cynthia Azari, professional Title IX staff and (BIT) Behavioral Intervention Team members, to study and improve district and campus processes for effectively managing Title IX and Clery Act incident complaints. Sharing our experience is timely and important.
Following is an analysis of the Title IX, part of the 1972 amendments to the Higher Education Act of 1965, and the 1990 Clery Act, requiring all colleges and universities that participate in federal financial aid programs to address complaints and disclose information about crime on and near their campuses.
Our purpose here is to share the practical insights and conclusions resulting from our study. While this article describes our community college experience, the findings apply across all segments of education.
Complaints requiring investigation have doubled.
The number of Title IX incident complaints is steadily growing (Kutner, 2016). ATIXA, (Association of Title IX Administrators) reports that the number of Title IX complaints at many schools and colleges have more than doubled over the past decade (Ohm, 2017). Administrators we interviewed postulated that this growth reflects: (1) increased awareness, (2) wider communication, and (3) an actual increase in incidents. Those interviewed frequently stated that these three factors influenced and affected an individual’s willingness to report incidents. Interviewees also felt that in addition to the reporting increase and increased knowledge, heightened awareness among administrators has provided more effective ways to respond to reported incidents. They also told us that the increase in complaints is thought to be only a small percentage of the actual number of incidents happening in community colleges and elsewhere.
Snapshot of Title IX history:
In Spring of 1972, I worked in Washington, D.C., as an AACC Education Specialist assigned to the U.S. Senate staff in preparing the Educational Amendments of 1972. This included the opportunity to work on Title IX as it became a comprehensive federal law to prohibit discrimination based on sex in any federally funded education program or activity. On June 23, 1972, President Nixon signed Title IX of the Education Amendments of 1972 into law. At that time, one major objective was to level the playing field for female athletes who did not have the same athletic privileges and opportunities in higher education as their male counterparts (Fletcher, 2003). A great deal has changed since 1972. Today, the power of the Title IX Amendments is that they apply to all public and private educational institutions that receive federal funds. This includes elementary and secondary schools, proprietary schools, colleges, and universities. It is useful to note that Title IX protects students in all academic, educational, extracurricular, athletic, and other school programs, whether they take place in the facilities of the school or elsewhere.
Sexual violence incidents are recorded within all cohorts, such as age, race, ethnicity, religion, gender, and sexual orientation. In addition, the advent of social media highlighting the rights of victims has led to increasing emphasis in protecting victims. Increases in reports and understanding have led to expanding attention and recognition that the rules have changed. Schools are required to adopt effective policies for preventing abuse and harassment and administrators agree that students will be safer with legally sound and effective processes in place (Haigh, 2017). However, many institutions still don't have satisfactory procedures in place and staff remains inadequately informed.
What is the way ahead?
A principal and a practical objective is to keep campuses as free from abuse and harassment as possible. The need for improvement highlights the need for better efforts to increase attention, understanding, and improve college procedures and training. This includes adopting and articulating clear policies for employee and student assault prevention. All college leaders can benefit by reviewing and improving their policies, investigatory procedures, and response plans.
Betsy DeVos, the Secretary of Education, recently stated that “Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined. These are non-negotiable principles,” (Svrluga, 2017).
The Jeanne Clery Disclosure of Security Policy and Campus Crime Statistics Act:
The Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, enacted in 1990, is landmark federal law that requires colleges and universities across the United States to disclose information about crime on and around their campuses. This law, like Title IX, is tied to an institution's participation in federal student financial aid programs. It applies to most institutions of higher education, both public and private (Government, 1990). The Clery Act requires all colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their respective campuses. Clery was amended in 2008 to require that the policies dealing with registered sex offender notifications and campus emergency response be published. The amendments also added a provision to protect crime victims, whistleblowers, and others from retaliation (Cleary, 2008).
The Campus Sexual Violence Elimination Act, also known as Campus SaVE Act, passed in March 2013, extended the Clery Act requirements. Colleges must now provide annual statistics on incidents of campus crimes, including sexual assault, domestic violence, dating violence, and stalking occurring on campus and reported to campus authorities or local police (American Council on Education, 2014). The SaVE Act broadens this requirement to mandate full reporting of sexual violence. Included are incidents of domestic violence, dating violence, and stalking. It also addresses how to recognize warning signs of abusive behavior, to avoid potential attacks, and describes safe and positive bystander interventions to prevent harm or intervene in risky situations. This adds responsibility to administrators to be better informed and understand the correct protocols and responses to needs in this area.
Sexual assault is a severely violating experience.
Sexual assault can cause a victim substantial immediate and long-term physical and mental health issues. Providing proper protection requires collective national and local focus. Sexual violence goes beyond being a private matter involving a victim and a perpetrator. Everyone in the college community shares a responsibility to create a campus environment where sexual violence is not tolerated. It is important to raise awareness and increase trained school personnel accountable for stopping assaults, supporting victims, and creating a sustainable culture of respect and non-violence.
Examples of the types of conduct that could involve Title IX and Clery Act violations include:
- Pressure for sexual activity
- Forcible sex offenses
- Dating or domestic violence
- Sexual innuendos and comments
- Sexually explicit questions
- Requests for sexual favors
- Unwelcome touching, hugging, stroking, squeezing
- Spreading rumors about a person's sexuality
- Displaying or sending sexually suggestive electronic content, including but not limited to emails, text messages, etc.
- Pervasive displays of pictures, calendars, cartoons, or other materials with sexually explicit or graphic content
- Stalking a person
- Attempted or actual sexual violence
- Aggravated assault
- Motor vehicle theft
- Drug law violations
- Liquor law violations
- Illegal weapons possession
- Murder, negligent and non-negligent manslaughter
Once a Title IX officer receives notice of an incident that might involve a Title IX violation, there must be a preliminary inquiry to determine if the matter may be resolved informally, or if a more formal resolution is warranted. The Title IX officer serves as the gatekeeper at this point. Many times, incidents that may first appear to be Title IX complaints can be properly resolved at this stage without a formal investigation or formal disciplinary action. If it is determined that a more formal resolution is warranted, the Title IX officer must engage the services of trained, neutral investigators who will objectively interview the reporting parties, responding parties, witnesses, and who serve as fact finders protecting the interests of both sides, as well as the school, college, or university.
Because of the significant role of the independent investigator, it is important that every college or university employ or contract for the services of trained and qualified Title IX investigators. These investigators will be charged with interviewing the parties and witnesses, gathering and analyzing the evidence, and making findings that they submit to the Title IX officer.
Behavioral Intervention Teams (BIT) are important.
The National Behavioral Intervention Team Association (NABITA) urges the effective use of Behavioral Intervention Teams (BIT). This is a multi-disciplinary team/committee. A properly formed BIT includes college specialists that meet regularly to support students, employees, faculty, and staff, using a formally adopted protocol. The BIT team generally tracks “red flags” over time, meaning they identify and report patterns, trends, and disturbances in individual or group behavior. The team reviews individual investigation reports and recommends disposition to upper management as required by college policy. All schools must have properly adopted policies and procedures.
- Receive expressions of concern, gather information about students, and discuss behaviors that are causing concern.
- Maintain confidentiality and handle all matters discreetly.
- Provide consultation and be supportive of faculty and staff.
- Intervene and connect students with resources; take other necessary measures to address concerns.
- Make recommendations about disposition based on investigations that follow college policy.
- Coordinate effective follow-up.
The BIT process does not replace faculty classroom management, disciplinary processes, and/or college security responses to incidents. Following a formal investigation, the Title IX officer will forward the results of the investigation and findings to the BIT. They then review the independent investigator’s report and make recommendations for action to the senior administrator(s).
Our survey indicated that due to the increasing number of complaints alleging Title IX violations on college campuses, Behavioral Intervention Teams are emerging as the primary on-campus committee for reviewing Title IX complaints based on reports of findings from independent Title IX investigators. After consideration, the BIT may recommend appropriate disciplinary action to designated senior administrator(s).
Early intervention to help students in distress is preferable to crisis intervention.
There are new types of service companies offering specialized services, including trained personnel to provide economical, independent investigations. They may offer valuable advice regarding college procedures for processing alleged violations, working through designated Title IX officers on campus, coordinating with the BIT, and making appropriate recommendations to the senior administrator(s) for correct disposition of complaints. For the purpose of validating a provider, it is helpful if independent investigators have earned certification as Title IX and Civil Rights investigators.
Understanding the objectives of Title IX and Clery is now fundamental to effective college functioning and assuring the well-being of students and staff. Training is now a must in comprehensive staff development programs. Our research and practice in this area have led us to conclude that there is a substantial need for improved Title IX services on campuses in order to overcome the potential for mishandling of Title IX matters. We are now preparing a follow-up article on handling incidents and providing special services.
If you have incidents, experience, thoughts or suggestions to share, please email them to: Bernie@LuskinInternational.com.
Bernard Luskin, EdD, LMFT is President of LuskinTitleIXServices, Inc. He has been CEO of eight colleges and universities and Board Chairman and COO of the American Association of Community Colleges. Dr. Luskin is a Certified Civil Rights/Title IX investigator and has been faculty at community colleges, Claremont Graduate University, Pepperdine University, USC, UCLA and Fielding Graduate University, where he is the founder of the nation’s first Ph.D. program in media psychology and the EdD program in Community College Leadership. Luskin received lifetime achievement awards from the American Psychological Association, the UCLA Doctoral Alumni Association, The Commission on the Future of Community Colleges (Bellweather Award), the Irish government and the European Commission.
Richard Post, J.D., is Executive Vice President of LuskinTitleIXServices, Inc., Chief Investigator, and supervisor of services and investigations. Post presently serves as the Title IX coordinator for the Ventura County Community College District reviewing and evaluating Title IX complaints and procedures. Post is a Certified Civil Rights/Title IX investigator and a member of the California State Bar Association. He has been a faculty member at College of Desert, California State University, San Bernardino, Chapman University and National University.
Special Thanks to Certified Title IX investigators Toni Luskin, Ph.D., and Pam Post, MA for assistance with this article.
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