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What You Need To Know About New Title IX Rules

Over the past several months, the Office for Institutional Equity (OIE) worked with various representatives from Duke administrative units to adopt the new Title IX rules announced by the Department of Education on May 6, 2020 with an implementation deadline of August 14, 2020. Though the majority of sexual misconduct matters at Duke will be handled outside of this process, the final rules impose sweeping changes to how Title IX reports are addressed in a subset of cases. According to Kimberly Hewitt, Vice President for Institutional Equity, “We approached this challenge with a strong sense of commitment to Duke’s values relative to preventing and responding to sexual misconduct and with an eye towards building on what was working well and embracing opportunities for improvement.”

A working group was created with the Duke Office of Counsel, the Office of the Provost, Human Resources, Student Affairs, and OIE to develop an “Umbrella Policy” that applies to all forms of discrimination, harassment, and sexual misconduct. The main goal was to apply the major changes within a narrow scope of application while building on existing structures that have been working well. Subgroups were formed to focus on staff/faculty, students, and procedures/evidence rules to write separate procedures applying specifically for students, faculty, and staff that fall under the umbrella policy.

Under the new Title IX rules, the Department of Education adopted a higher standard for sexual harassment defined as “unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to a program or activity.” Sexual assault, dating violence, domestic violence, and gender-based stalking, with definitions borrowed from the Clery Act, are assumed to have met this threshold. Quid pro quo sexual harassment – conditioning a benefit of the University on an individual’s participation in unwelcome sexual conduct – only applies to employee respondents.

In addition, Title IX complaints refer only to incidents occurring in the U.S., within a Duke program or activity, and when the complainant is participating in, or attempting to participate in a program or activity. Reports that do not meet the Title IX threshold will continue to be addressed under other procedures of the Policy.

The new Policy requires that responsible employees, including faculty, staff, and graduate students with teaching or supervisory authority, administrators at all levels including Board of Trustees members, coaches, Human Resources representatives and managers, who become aware of an incident of sexual misconduct consult with OIE and share known details so that we can identify the appropriate path forward. Non-supervisory employees and students are expected to be discreet, and are encouraged by Duke to promptly consult with OIE if any sexual misconduct is suspected. When a report is made to OIE, someone will reach out to the student or employee to offer support, resources, and options for moving forward.

In all cases, under the revised Policy, Duke will continue to offer free supportive and individualized measures “designed to restore or preserve equal access to education, protect safety, or deter sexual harassment.” The Title IX Coordinator in OIE and others throughout the university will work to offer counseling, deadline extensions, and other support services for complainants and respondents (the person against whom a complaint is made). “Duke has an amazing ‘culture of care’ throughout the university, faculty and staff working hard to assist students impacted by sexual harassment and misconduct so they can successfully complete their education,” stated Jayne Grandes, Associate Vice President for Title IX Compliance.

Where there is a formal complaint made to OIE, a thorough investigation is conducted. Title IX cases require live hearings, and may be held with the parties in separate rooms with technology enabled. Each party will be required to have an advisor who will cross-examine other parties and witnesses. The adjudication process will fall under OIE, with an independent Hearing Officer as the decision-maker. Any student cases that do not fall within the narrow purview of the new Title IX rules will be adjudicated through the Office of Student conduct; employee cases not under Title IX will be adjudicated through the Policy’s employee complaint handling procedures.

Appeals may be granted when procedural irregularities affect the outcome, new evidence arises that was not available during the decision-making process, or a conflict of interest or bias is identified. An independent Appellate Officer will preside over appeals and will issue a final decision.

Learn more about the newly adopted Policy and the three related Procedures on the Policies, Statements and Procedures webpage.

By Maria Moreno
© 2020 Duke Office for Institutional Equity

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