Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Howard Kallem <>]

Have you seen this recent letter from OCR?

https://bloximages.newyork1.vip.townnews.com/newsadvance.com/content/tncms/assets/v3/editorial/0/ad/0ad559e2-55fa-11e7-b0ac-e3da90639f19/59498ab997de9.pdf.pdf  

 

You’ll see on page 1 this sentence: “Title IX protects students from sexual harassment, including sexual violence, in connection with a recipient’s education programs and activities. … Title IX protections also extend to third parties regarding sexual harassment or violence, as long as the sexual harassment or violence occurs in connection with a recipient’s education programs and activities.” 

 

In the 2014 FAQs, OCR said that a school is required to respond to off campus harassment because the school must determine “whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity.”  [And the “continuing effects” need not be limited to situations in which there was further harassment on campus/in a program or activity: “The mere presence on campus or in an off-campus education program or activity of the alleged perpetrator of off-campus sexual violence can have continuing effects that create a hostile environment.”] 

(from Q F-4).  Consistent with this, the Liberty resolution letter says that, when the misconduct occurs outside a school’s programs and activities and the complainant isn’t a student at the school, then the school isn’t responsible – apparently, because there won’t be any continuing effects on that complainant in the school’s own programs and activities.  That seems to be the rationale the school used here.  If the misconduct directed at a non-student had occurred on campus or otherwise in the context of an education program or activity, then OCR would apparently say that the school would be required to respond. 

 

[I suppose there could be an argument that a student who engages in sexual misconduct to non-students off campus may present a threat to students on campus, thereby having an effect on campus…but that’s not what OCR was referring to by “continuing effects”; rather, as shown by its “mere presence” quote, they were looking at continuing effects on the particular complainant.]

 

Note that a school can choose to go farther and cover off campus misconduct directed at non-students (as Duke’s policy does), but OCR’s view is that Title IX doesn’t require it.

 

Of course, from your perspective, you are probably providing the student with supports and accommodations.  And, given that the other school’s finding wasn’t reversed on the merits but on jurisdictional grounds, you might want to consider banning the respondent from your campus (especially if the other school is nearby). 

 

Hope this is helpful.

 

Howie Kallem

Director, Title IX Compliance

 

From: Peters, Sara [mailto:]
Sent: Monday, July 10, 2017 12:15 PM
To:
Subject: Concerns regarding jurisdiction

 

Hi All,  

 

We have a case where a UTC student was raped by a student at another university. After putting the student through a long investigative and hearing process, they found the respondent responsible. The respondent promptly appealed and the decision was overturned based on jurisdiction. There Title IX policy states the following:

 

"the conduct occurs outside the context of a University employment or educational program or activity, but has continuing adverse effects on or creates a hostile environment for students, employees or third-parties while on campus or University property owned or controlled by the University or in any employment or education program or activity."

 

Basically, because the complainant was not a student they claim they have no jurisdiction over the case. At UTC, we hold all students accountable for the policy regardless of the identity of the victim or their status as a non-UTC student. Is this not the case at many other universities? If this is not the case, is the complainant informed before an investigation and hearing? I’m a wee bit upset about how this was handled. 

 

 

Sara K. Peters
Women's Center Director
University of Tennessee at Chattanooga
University Center 351A
423-425-5605

Courage doesn’t always roar. Sometimes courage is the quiet voice at the end of the day, saying, “I will try again tomorrow.” 
– Mary Anne Radmacher