At the beginning of September Michigan State University entered into a Resolution Agreement with the Office for Civil Rights pertaining to two Title IX complaints, the first of which was filed in June of 2011. If any higher education institution wants to get an understanding of the comprehensiveness of an OCR Title IX compliance review (and why it is taking so long for OCR to investigate complaints) this Resolution Agreement along with the accompanying letter to MSU’s counsel is a must read. Frankly, the scope of the requirements of this Resolution Agreement are mind numbing.
The agreement is broken down into 18 subject matter categories that require “corrective action” by MSU. Some of the categories have lengthy subparts and each category has a date by which MSU is to achieve compliance.
1. Public Anti-Harassment Statement. This part calls for the MSU’s President to issue a widely published statement that covers a wide range of issues pertaining to the University’s policies and procedures prohibiting and responding to sex discrimination, including sexual and gender based harassment, assault and violence.
2. Notice of Nondiscrimination. MSU is to make what can be viewed as minor technical changes to its nondiscrimination statement to include information about its Title IX coordinators.
3. Revisions to Title IX Policies and Grievance Procedures. This is the most comprehensive part of the Resolution Agreement as it contains 30 compliance points to be met by MSU. These obligations were imposed despite MSU already having made significant revisions to its Title IX programs and some of the compliance points already being included in its policy and procedure documents. Regardless, these are the compliance points that MSU agreed to include in its revised policies, procedures and related documents.
- notice that the procedures apply to all forms of sex discrimination against employees, students, and third parties;
- notice of the procedures and how to file a complaint that is easily understood and widely distributed, and which shall include contact information for the person with whom complaints are to be filed;
- listing of information (contact and duties) about the Title IX Coordinator and the Office of Institutional Equity;
- provisions for the prompt, adequate, reliable and impartial investigation of complaints;
- establishment of time frame for completion of phases of the complaint process (including extensions of time);
- written notice of complaint and appeal outcome to all parties;
- assurance that MSU will take prompt and effective steps to end sexual/gender harassment, eliminate any hostile environment, prevent its recurrence, and remedy any discriminatory effects;
- equal provisions regarding the parties’ ability to be assisted by lawyers, if allowed by the procedures;
- equal rights of appeal and the equal right to participate even for the party who has not filed the appeal;
- definitions and examples of what may constitute sexual harassment and also what does and does not constitute consent to sexual conduct;
- clarification that sexual harassment policies and procedures apply to all programs and activities, including off-campus;
- a statement that when off-campus harassment occurs in a non-MSU program, MSU will consider the effects of the conduct when evaluating whether there is a hostile environment on campus or in an off-campus program or activity;
- a statement that all employees (other than counselors, advocates, or employees legally regarded as confidential resources) are expected to promptly report sexual harassment/assault that they observe or learn about;
- a provision that a complainant has the right to not participate in an investigation, appear in a proceeding with the respondent present, or otherwise confront the respondent during the grievance process, including during any hearing or appeals;
- provisions prohibiting parties from cross-examining one another during the grievance process;
- a statement that: MSU will investigate and take appropriate steps to resolve a complaint when it knows or reasonably should know about possible discrimination (from any source), regardless of whether the complainant declines to participate in the process; MSU will balance a complainant’s request for confidentiality with its broader obligation to campus safety; and that MSU will respond to complaints, reports or information about incidents of sex discrimination, eliminate any hostile environment, take steps to prevent its recurrence, and address its effects.
- provisions ensuring that parties, including the complainant and respondent, are given updates on the status of the investigation;
- allowing an actual complaint to appeal a decision even when MSU may be acting as the complainant under its procedures;
- provisions indicating the voluntary nature of participation in any informal resolution process, the right to end the informal process and begin the formal process, and that in certain circumstances when informal resolution is not appropriate;
- statement that the preponderance of the evidence standard will in used in sex discrimination complaint procedures;
- procedure for notifying the parties of the initiation of an investigation, potential policy violations, the right to participate in the investigation, response timeframes, and that the investigation may proceed without a party’s participation;
- detailing procedures about the right to also file a complaint with police and coordination of simultaneous processing of complaints by MSU and law enforcement;
- a statement about interim measures that are available throughout the process and the mechanism for obtaining them;
- a statement regarding confidentiality and how the university may treat requests for confidentiality by the complainant;
- an assurance that conflicts of interest will not be allowed by investigators or adjudicators;
- a statement that retaliation will not be tolerated and how it can be reported;
- professional school complaints will be handled by the Office of Institutional Equity, not through administrative offices of those programs;
- a statement that sanctions shall be calculated to stop the harassment and prevent its recurrence, and a negotiated settlement should also be calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and remedy the discriminatory effects on complainant and others.
4. Documenting Complaints. Development and submission to OCR of a procedure to document each incident or complaint of sex discrimination received by MSU, whether formal, informal, written, or verbal. There are minimum benchmarks for what is to be contained in the procedures and what is to be documented.
5. Memorandum of Understanding. In this section MSU agreed to specific obligations regarding revising its MOU with local law enforcement agencies regarding reports of sexual assault/violence/harassment. The revisions will include items such as: notifying claimants that they can pursue a claim with both law enforcement and the university; assistance by law enforcement to obtain evidence; policies on coordination between MSU and law enforcement and when matters will be referred by MSU to law enforcement.
Additionally the university is to develop a written protocol for the outlining how the Title IX coordinator and the University police will promptly notify each other when they receive a complaint, the extent they will coordinate efforts to respond, and how they will document those efforts. The written protocol will also specify that for the MSU police a specialized investigator trained in sexual assault/violence will be the officer responding to complaints, one investigator will gather all the evidence and work with the complainant throughout the process, help the complainant obtain a personal protection order if wanted (e.g. transportation, assistance with paperwork).
6. Individuals Receiving Complaints to Notify Complainants of Options and Coordination with Law Enforcement Agencies. MSU is to update its policies to reflect its practices that a complaint will receive written notice about options to pursue a criminal complaint and/or the university’s disciplinary process. The option(s) chosen shall be documented, and the complainant notified that they can revisit the determination at any time. The written notice shall also include a list of resources and interim measures that are available to the complainant.
7. Title IX Training for University Staff. Under the agreement, MSU is to provide annual mandatory training to a host of institutional personnel. It also contains particulars as to the minimum content requirements to be covered by the training. It is very particular as to the training requirements and can be viewed as a benchmark for what other institutions should cover in their training/education programs and also who they should be training.
8. Staffing/Resources. MSU agreed to conduct assessments to determine whether it has sufficient staff to address Title IX complaints in a timely manner and add staff as appropriate.
9. Student Information Sessions. In the agreement MSU agreed to undertake a variety of educational training for its new freshman, transfer, and graduate students. The training will conducted both online and in a series of in-person information sessions.
10. Student Athlete Training Materials. MSU will review and revise as appropriate training materials used to train student athletes respecting sexual harassment, assault and violence.
11. Sexual Violence Advisory Committee. MSU is to create a Sexual Violence Advisory Committee. The committee will be composed of undergraduate and graduate students, faculty, staff and appropriate administrative officials. The committee will meet twice per semester. Its purpose is to identify strategies for: ensuring students know their rights under Title IX and how to report possible violations; prevention of sexual harassment, assault and violence; and hold a public meeting each year to identify concerns and determine where and when harassment on the basis of sex has occurred.
12. Climate Checks. For three years MSU will conduct assessments of the effectiveness of actions taken pursuant to the Resolution Agreement (or otherwise) to provide for a campus free of sex discrimination and harassment. The assessments shall cover: student/employee knowledge about sex discrimination; gather information about their experiences with sex discrimination; assess their view of the current campus climate and problematic areas on campus; assess their knowledge of MSU’s policies and procedures; obtain suggestions for improvement. The information obtained will be used to inform future actions taken by MSU to provide for a “safe educational and employment environment in compliance with Title IX.”
13. Title IX Coordinator: Monitoring Program. MSU’s Title IX Coordinator will develop a monitoring program to assess the effectiveness of the university’s overall anti-harassment efforts. What is to be covered in the assessment is specified in the Resolution Agreement’s Section K.
14. Sororities and Fraternities. As a part of the agreement, MSU will provide annual training to sororities and fraternities that are registered student organizations. See Section N of the Resolution Agreement for the particulars of the subject areas that the training is to cover.
15. Complaint Review. Under the agreement MSU is to do a retrospective review of all complaints/reports from 2010-2015 to determine whether the University investigated each complaint/report promptly and equitably. The review is to assess specified items. Based on the review MSU is required to take action to remedy any identified problems, including remedies still available to the complainant (e.g. counseling, reimbursement for counseling, academic assistance/adjustments, tuition or housing reimbursements, or “other appropriate relief”). It is further worth noting that this section states that the university is not to expected to reinvestigate/rehear cases that have been processed through the student discipline system, but the agreement is silent as to whether MSU will be expected to process cases that have not already been processed through its discipline system.
16. Individual Remedies for the Two Students Who Filed Complaints. MSU has also agreed to provide to the two complainants what I will call “damages” for “issues they faced “as a result of the University’s delay in processing their complaint allegations.” Specifically, MSU is required to try to locate the two students (kind of surprising since it would be expected that OCR and/or MSU would have been in contact with the two students throughout this OCR complaint process) and send them a letter: acknowledging their delay in processing their complaints; notice of the outcome of their complaints, including any appeals (I do not understand this requirement); that MSU is revising its Title IX policies and procedures; that complainants are kept informed of the status of investigations and appeals (which is kind of ironic as it appears that the complaints were not kept informed about the processing of the Title IX complaints that they filed with OCR); and that complainants will be provided with timely remedies. Lastly, the letter will offer to provide the two former students, at the university’s expense, with counseling, academic support, reimbursement for classes, the ability to retake classes without penalty, and other remedies.
17. Individual Remedies for Other Grievants. There were two files that during OCR’s review must have raised concerns. These appear to be based on employment based sex/gender harassment. Under this section MSU undertakes various remedial obligations regarding these cases and agrees to provide remedies at its own expense. What this section highlights is that OCR’s review will not be limited to student based compliance issues, but will also include employment based Title IX compliance concerns identified by OCR.
18. Campus Safety. Lastly, the Resolution Agreement requires MSU to determine whether a particular campus area has adequate lighting and emergency phone, and then install lighting and phones as needed.
Sorry about the length of this post. It was not my intention to have it be so lengthy, but I thought this agreement was significant enough in its details that I wanted to give it a good review–but I will say that it took me just too darn long to write this post! For those of who have actually read this, thank you, and I hope you find some of it interesting and educational.
Note that as I went along I bolded some areas that I though were particularly of note. You may find other areas that are of more interest. Please feel free to comment on whether there are other segments of the Resolution Agreement that are comment worthy (or just let me know that you actually read this!)