Grawemeyer Hall 2017
Grawemeyer Hall 2017

General comment concerning current Department of Education policy and anticipated regulatory developments re institutional expectations under Title IX

As you may recall, September 22, 2017, the Department of Education’s Office for Civil Rights (OCR) rescinded the Obama administration’s April 4, 2011 Title IX implementation guidance (commonly referred to as “the Dear Colleague Letter (DCL)”), issuing interim guidance and a related Q&A document in its place. The September 22, 2017 guidance and related Q&A document can be found on OCR’s website.

In addition, on November 29, 2018, OCR issued a notice of proposed rulemaking setting forth extensive new draft regulations concerning institutions’ obligations in responding to reports of sexual misconduct.  The 60-day public comment period for the proposed regulation closed on January 30 of this year.  OCR received well over 100,000 comments, and must now review and respond to any substantive comments before issuing final regulations.  How long this process will take, and what effects any new regulations may have on the universities policies and practices, is uncertain.   General information on the administrative rulemaking process, or on specific NPRMs, can be found at www.regulations.gov ; the docket number for the proposed Title IX regulations is ED-2018-OCR-0064.   

It is important to emphasize that notwithstanding OCR’s rescission of the Obama era guidance, related requirements, including UofL’s mandatory reporting guidelines discussed below, remain intact as a matter of university policy. 

However, it is possible that any regulations OCR promulgates may require us to revisit our policies and practices; should future developments make revision of those policies and practices necessary or appropriate, we will keep the university community apprised as appropriate.

Any questions related to the implications of ongoing legislative and regulatory developments concerning Title IX compliance and enforcement should be directed to the Title IX Coordinator.

Title IX and Clery Act Mandatory Reporting Guidelines

Introduction: There are two federal laws that establish responsibilities for employees of universities to report certain types of crimes and incidents, especially sexual misconduct — Title IX and the Clery Act. Each of these areas of federal law has a different purpose, but generally the laws are intended to protect members of the campus community, visitors, and guests from criminal and discriminatory behavior. The responsibilities established by these laws give rise to the term “responsible employees.” 

Title IX focuses on the adverse consequences faced by victims of gender discrimination and sexual harassment and obligates the University to investigate any such misconduct and respond promptly and effectively to stop the harassment, prevent its recurrence, eliminate the effect of any hostile environment that may have been created, and remedy those effects as appropriate.  If the victim is a student, Title IX means among other things that the University must provide an environment that does not interfere with the victim’s right to pursue an education.   The University incurs this obligation when a victim has given notice to a “responsible employee,” or when the University otherwise knew or, in the exercise of reasonable care, should have known, about the assault or harassment. 

The Clery Act creates a duty for institutions to report crimes in different categories (listed below) to the federal government, and has the broadest scope.  Guided by the language of the Clery Act and subsequent amendments, the University is required to define which employees must report information they receive regarding crimes. 

Responsible Employees 

Employees designated as “responsible employees” under Title IX and the Clery Act include any employees who have the authority to take  action  to  redress  sexual  harassment,  who  have  the  duty  to  report  sexual misconduct by students or employees to University administration, or an individual whom a student could reasonably believe has this authority or responsibility which include, but are not necessarily limited to: 

  • Vice Presidents, Deans, Department Chairs, Directors, Coaches (including assistant coaches and athletic trainers)
  • Assistant or Associate Vice Presidents, Deans, and Provosts
  • Any employee in a supervisory or management role
  • All Faculty (including adjuncts, as well as graduate teaching assistants when acting in their teaching capacities)
  • University of Louisville Police Officers and any contracted security personnel
  1. As to Title IX, when you become aware of an alleged act of sexual harassment, sexual assault, or gender discrimination involving a UofL student you must:
  2. Provide the alleged victim with the following resource brochure available online here
  3. Immediately contact a Title IX Coordinator (lead coordinator or one of the three deputy coordinators):

As to the Clery Act, when you become aware of any of the crimes listed below occurring 1) on campus, 2) on public property within or immediately adjacent to campus, or 3) in or on non-campus property that the University owns or controls:

  1. Call University Police at 911 if it is an actual emergency or involves an imminent threat to life or property. (These reports are not anonymous and must include who, what, where and how the incident occurred.)
  2. Call University Police at 502-852-6111 or complete and submit the Anonymous Reporting Form, if it is not an actual emergency or does not involve an imminent threat to life or property.
  • Murder & Non-Negligent Manslaughter: The willful killing of one human being by another
  • Negligent Manslaughter: The killing of another person through gross negligence.
  • Robbery: The taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or by putting the victim in fear.
  • Aggravated Assault: An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm. (It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon is used which could and probably would result in serious personal injury if the crime were successfully completed.)
  • Burglary: The unlawful entry of a structure to commit a felony or a theft. For reporting purposes this definition includes: unlawful entry with intent to commit a larceny or felony; breaking and entering with intent to commit a larceny; housebreaking; safecracking; and all attempts to commit any of the aforementioned.
  • Motor Vehicle Theft: The theft or attempted theft of a motor vehicle. (Classify as motor vehicle theft all cases where automobiles are taken by persons not having lawful access even though the vehicles are later abandoned, including joyriding.)
  • Arson: Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.
  • Arrests for Weapon Law Violations: The violation of laws or ordinances dealing with weapon offenses, regulatory in nature, such as: manufacture, sale, or possession of deadly weapons; carrying deadly weapons, concealed or openly; furnishing deadly weapons to minors; aliens possessing deadly weapons; and all attempts to commit any of the aforementioned.
  • Arrests for Drug Abuse Violations: Violations of State and local laws relating to the unlawful possession, sale, use, growing, manufacturing, and making of narcotic drugs. The relevant substances include: opium or cocaine and their derivatives (morphine, heroin, codeine); marijuana; synthetic narcotics (Demerol, methadone); and dangerous nonnarcotic drugs (barbiturates, Benzedrine).
  • Arrests for Liquor Law Violations: The violation of laws or ordinances prohibiting: the manufacture, sale, transporting, furnishing, possessing of intoxicating liquor; maintaining unlawful drinking places; bootlegging; operating a still; furnishing liquor to a minor or intemperate person; using a vehicle for illegal transportation of liquor; drinking on a train or public conveyance; and all attempts to commit any of the aforementioned. (Drunkenness & driving under the influence are not included in this definition.) 
  • Disciplinary Referrals for Weapon Law Violations
  • Disciplinary Referrals for Drug Abuse Violations
  • Disciplinary Referrals for Liquor Law Violations
  • Hate Crimes
  • Sex Offenses (Reporting sex offenses to a Title IX Coordinator satisfies the Clery Act reporting requirements)
  • Forcible: Any sexual act directed against another person, forcibly or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent.
  • Incest: Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  • Statutory Rape: Nonforcible sexual intercourse with a person who is under the statutory age of consent (age 16 in Kentucky).  

Obligation to report suspected abuse or neglect of a minor child or abuse of a spouse

In addition, Kentucky law requires that any person who suspects that a minor child (under 18) is the victim of abuse or neglect must immediately report the suspected abuse or neglect to a local law enforcement agency or other agency authorized by statute. KRS 620.030. The UofL Police Department (852-6111) constitutes a local law enforcement agency for purposes of Kentucky’s mandatory reporting law for child abuse and neglect. Failure to report suspected abuse may result in criminal charges and/or disciplinary action. 

Kentucky law also requires that any person who suspects that a person is a victim of spousal abuse must also immediately report this information to the appropriate agency. KRS 209A.030. The University Police Department can be reached at 852-6111 for purposes of such reports. 

Non-discrimination obligations regarding student pregnancy

Discrimination based on pregnancy (including failure to reasonably accommodate a student’s pregnancy and/or complications related thereto and any related medical care) is a form of sex-based discrimination, which Title IX prohibits. 

While students desiring accommodations necessitated by pregnancy are encouraged to bring their needs to the attention of their instructors as promptly as circumstances permit, students or faculty who have questions or concerns in this regard may contact the office of the Title IX Coordinator (502-852-5787) for assistance.  In some instances, the Coordinator, aided by staff of the office of the Dean of Students (502-852-5787), is able to facilitate resolutions that balance UofL’s obligation to reasonably accommodate student pregnancy while preserving the academic integrity of the courses and academic programs in question.

Non-Retaliation/Non-Retribution Policy 

The  purpose  of  this  policy  is  to  encourage  and  enable  good-faith  reports  by  University employees of observed or suspected misconduct or noncompliance with law or with University policies and procedures without fear of retaliation or retribution.  

RELATED ARTICLESMORE FROM AUTHOR