Campus Assaults: What is Your College’s Responsibility & Liability?

1. Campus Assaults: What is Your College’s Responsibility & Liability? Bob Joyce UNC School of Government September 4, 2014

2. 1964 Congress passes Title VII of the Civil Rights Act

3. 1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of

4. 1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of • race

5. 1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of • race • color

6. 1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of • race • color • religion

7. 1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of • race • color • religion • national origin

8. 1964 Congress passes Title VII of the Civil Rights Act Title VII bans discrimination because of • race • color • religion • national origin • sex

9. 1974 Title VII case: “inharmonious personal relationship”

10. Late 1970s Quid pro quo sexual harassment Violation of Title VII if there was sexual harassment that resulted in some kind of tangible job detriment

11. 1981 Title VII case “an employer violates Title VII merely by subjecting female employees to sexual harassment, even if the employee’s resistance to that harassment does not cause the employer to deprive her of any tangible job benefits”

12. 1972 Congress passes Title IX

13. 1972 Congress passes Title IX Title IX bans discrimination on the basis of sex

14. Title IX Congress passes Title IX Title IX bans discrimination on the basis of sex What is discrimination on the basis of sex

15. Title IX Direct, intentional unequal treatment, yes.

16. Title IX Direct, intentional unequal treatment, yes But what about sexual harassment?

17. EEOC Definition: Title VII Sexual harassment “Effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.”

18. OCR Definition: Title IX Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

19. OCR Definition: Title IX Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

20. OCR Definition: Title IX “sufficiently severe, persistent, or pervasive”

21. OCR Definition: Title IX “a single or isolated incident of sexual harassment may, if sufficiently severe, create a hostile environment”

22. 2006 UNC case “those exceptional cases where a single incident of sexual harassment, such as sexual assault or rape, has been deemed sufficient to raise a jury question.”

23. Late 2000s Under Title IX • Sexual harassment is a form of unlawful discrimination on account of sex • If “sufficiently severe, persistent, or pervasive” • A single incident may meet that standard

24. 2011 Dear Colleague Letter

25. 2011 Dear Colleague Letter • Student-run honor court may not be the proper forum

26. 2011 Dear Colleague Letter • Student-run honor court may not be the proper forum • Can’t wait for the police

27. 2011 Dear Colleague Letter • Student-run honor court may not be the proper forum • Can’t wait for the police • Must use the “preponderance of the evidence” standard

28. Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

29. Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

30. Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

31. Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

32. Today Sexual harassment: “sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment” 1997

33. Today • Conduct on campus or in connection with a college event

34. Today • Conduct on campus or in connection with a college event • Conduct off campus

35. Today • Conduct on campus or in connection with a college event • Conduct off campus Limits a student’s ability to participate or benefit Creates a hostile or abusive educational environment

36. My Experience

37. My Experience ID10T

38. My Experience • What conduct occurred?

39. My Experience • What conduct occurred? • Was there consent?

40. My Experience • What conduct occurred? • Was there consent? “Sexual harassment also includes sexual misconduct.”

41. My Experience • What conduct occurred? • Was there consent? “Sexual misconduct refers to physical sexual acts perpetrated against a person without their Consent”

42. My Experience • What conduct occurred? • Was there consent? • Role of alcohol

43. My Experience • What conduct occurred? • Was there consent? • Role of alcohol “or where a person is incapable of giving Consent due to the person’s use of drugs, alcohol, or other impairing substances.”

44. My Experience • What conduct occurred? • Was there consent? • Role of alcohol “The relevant standard . . . is whether the person alleged to have engaged in sexual misconduct knew, or a sober, reasonable person in the same position should have known, that the Complainant was incapacitated.”

45. My Experience • Two students, off campus, drink alcohol together voluntarily • They both become intoxicated • They engage in sexual contact • One student subsequently asserts that consent was not given because that student was incapacitated by the use of alcohol

46. My Experience • What conduct occurred? • Was there consent? • Role of alcohol • Role of attorneys In UNC disciplinary hearings, students “shall have the right to be represented . . . by a licensed attorney . . . who may fully participate during any disciplinary procedure”

47. Active Questions How to educate students How to receive and investigate reports How to cooperate with law enforcement How to conduct investigations and hearings How to deal fairly with all parties