Add/Update Page Page 1 of 2 Cases Return to Search Results Case Search Update Case Docket# 07162027 Resolution Processing Age Updated 09/26/2017 By Office · I . Kansas City Required Field L----'-----' New Case ..., v EO\Nate.Hicks State College Recipient NameChadron . 1 IFour Aces Team 672 Days v jCase Opening Date Required L1_1_12_ 4_12_0_ 1_5_____ .. '-·-----------' ..~[ Submit Case Case Resolved 2612017 Date '------- Required Field~--------- Institution TAs [w, IComplaint ·IPS ! v No Further OCR Actl·on Required Fie ld I..C losed Current Stage - ·-·--1. 1C I D a Voe E I09/26/2017 .. vi.. Search TA Resolution Administrative Closure . T ype Update Target TA ) Chan __._ c_al ISchool Field Case Type · View I 30 days 12/24/2015 135 days Documents 4/7/2016 Search Documents With WebTop New TA Stage Submit TA Reports Issues Monito r ing Status Recipient Contacts Complaina I Issues D Title VI Race D Title VI Color D Section 504 D Age rJ No Jurisdictic D Title VI National Origin 0 Title IX D Title II D Boy Scouts D Unknown Specific Basis: Issues: Resolution Code: ITitle IX - Discrimination against female ~-=;.']_ 106.31-4.2 Sexual Harassment (sexual violence) IS11 Obi Currently in litigat ion -- 60 day ru le 19/26/2017 Resolution Date: Post Monitoring Code Post Monitoring Date: L------------------------- Systemic: D ~ ----------·- ..- ·- -- ICat j Add Issue Sport Add Sport https: //cms.ed.gov /cmsvd /AddU pdate?DocketNo =07 I 62027 9/26/20 17 Hicks, Nate From: Sent: To: Subject : Gordon, Earlene Thursday, December 17, 2015 8:17 AM Swetnam, Tony; Hicks, Nate New case assignments: Chadron State College - 07162027 and Nebraska State College System - 07162029 Tony and Nate, I am assigning you to handle these cases as lead attorney and lead investigator respectively. They both allege that the College, or in the second case the State College System , failed to take a) propriate action in accordance with Title IX in a !(b)(7)(C) There is a twist to this: although Chadron State College (part of the Nebraska State College System) receives FFA, apparently the Nebraska State College System does not (see emails in NSCSfile). So does the System come within our jurisdiction or not? The files are on a chair in my office. 'Earfene J. Earlene Gordon Supervisory Attorney U.S. Department of Education Office for Civil Rights One Petticoat Lane 1010 Walnut Street, Suite 320 KansasCity, Missouri 64106 (816) 268-0548 Earlene.Gordon@ed.gov Gordon, Earlene From: Sent: To: Cc: Subject: Attachment s: Menninger, Karl Thursday, December 03, 2015 9:48 AM Gordon, Earlene Alvarez, Jessie; Stratton, Steve; Doug lass, Joshua; Dittmeier, Bill Transfer to Investigat ion Team: Chadron State College, 07162027 , Day 30 = 12/2/15 07162027 OCR KANSAS CITYTRANSFERSHEET.docx I am transferring this complaint to Four Aces for investigation. The complainant (the attorney of the parents {b){7)(C) failed to appropriately intervene L{b..:. )(:7) ....:. (C ..:. )___________________________ __. lleges the College !{b){?)(C) ~he parents did not find out that the college staf t knew about th d{b){7)(C) ! until their attorney received some documents in October 2015 showing that th e staff know of the !{b){7)(C) l,utfailed to intervene. The team recommends that a waiver be granted because the parents could not reasonably have been expected to know the act was discriminatory within the 180 day period and filed within 60 days a her they became.aware of the alleged discrimination . The complainant is also requesting to file a complaint against the Nebraska State College System, which oversees the College . We are in the process of determining whether the System is a recipient of FFA. If it is not, we will dismiss the complaint. If it is, I will transfer the complaint to you . The file is in the team in-box. 1 Page 1 of 1 Add /Updat e Page Cases Return to Search Results Case Search Upd ate Case New Case Docket# 07162027 Updated 11/25/2015 Field TAs Search TA .... A Team Team Institution Current Stage Resolution ... * Complaint ED\Jessie .Alvarez Recipient Name Chadron State College 11/24/20 15 . .... * View I * . R!.!qum.:dl·ickl Charte 1 School Case Resolved Date Re4uired 1-idd PS Vie1 By Case Opening Date fl vocEd No Further OCR Action R1.:qu1n:d I ield Evaluation Type Target 30 days 135 days 12/24/2015 Stag e 4/7/2016 180 days Search Document Documents Update TA I Days Processing Age Kansas City Office Case Type Submit Case Resolution Issues Monit oring Status Recipient Contac ts Complainant Next Step New TA Next Step Need hard Submit TA Reports Target copy LOA Case entered into CMS. 11/30/20 15 Add New Next Step Completed Step Completed Step Acknowledgement Letter Sent Add New Completed Step .... J http://cms/cmsvd/ Add Update.as px?Doc ketNo=07 16202 7 11/25/201 11/25/20 15 CASEFILE INDEX Docket No: 07162027 l(b)(7)(C) Complainants: Public Justice, P.C. 1620 L Street NW, Suite 630 Washington, DC 20036 Tele hone: (202) 797-860(l(b)(7)(C)!Fax: (202) 232-7203 (b)(7)(C) ubl ic°L1 stice.net (emai I) l(b)(7)(C) Romanucci & Blandin. LLC 33 North LaSalle Street, 20111Floor Chicago, Illinois 60602 Tele hone: (3 12) 458-1000 (b)(7)(C) rblaw.net (email) www.publicjustice.net l(b)(7)(C) Attorney: Baird Holm LLP 1700 Farnam Street Suite 1500 Omaha, Nebraska 68102-2068 Telephone: (402) 636-8290. Fax: (402) 344-0588 !(b)(7)(C) @bairdholm.com (email) Recipient: TABA: Chadron State College (College) Dr. Randy Rhine, President 1000 Main Street Chadron, Nebraska 69337 Phone: (308) 432-620 l , Fax: (308) 432-6296 Email: rrhine@csc.edu Website: www.csc.edu CASE RECORDS (Folder 1) I. Complaint received without a signed Consent Form - 11/24/15 2. 3. 4. 5. 6. 7. TABB: LOA (manual) mailed to the complainant - 11/25/15 Signed consent form received from the complainant - 11/30/ 15 OCR Kansas City Transfer Sheet to the Investigation Team (AAAA) Domestic Violence Confusion email from Seth Galanter to complainant -I 0/30/ 15 ··Possible Flag Complaint" correspondence received by several emails - 12/ 1/ 15 Letter of Entry (email received.from the recipient 's attorney )- 5/ 19/ 16 ADMI NISTRATIVE INFORMATION (Folder 1) I. Case History & FFA Information ~ 07162027 Page 2 ~(b)(?)(C) TAB C: INTERVIEWS/ADDITIONAL CORRRESPONDENCE (Folder 1) l. 2. 3. 4. 5. EmaiIs exchanged with OCR personnel regarding conference cal Is - 12/ 19/ 15 Telephone conference calI with the attorneys - 12/22/ 15 Email l , additional correspondence received (complainant's al!orney) - I/ 12/ 16 Email 2, additional correspondence received (complainant 's allorney) - I/12/16 Email 3. additional documentation received (complainant's attorney) - 1/ 15/16 a. b. c. d. Memorandum to OCR dated January J5. 2016 Draft NSCS Policy 3020 (Sexual Violence/ Harassment) , updated 3/2 6/ f-1 Revised NSCS Policy 3020. effective date 711115 Chadron State College Student Handbook . 2014-2015 6. Documentation received reflecting that the clients had filed a complaint with the District Court of Nebraska on January 30, 2017 TABD: APPROVAL TO OPEN/CLOSE COMPLAINT (Folder J) I. Approval received from the CA open complaint - 5/ 17/ 16 2. Approval received from the RDO to administratively close complaint - 9/26/ 17 TABE : STATEMENT OF THE CASE (Folder 1) I . Statement of the Case - 5/ 17/ 16 TABF: NOTIFICATION /ADM INISTRATIVE CLOSURE LETTERS (Folder 1) I. 2. 3. 4. NL submitted to the complainants- 5/17/16 DRL submitted to the recipient- 5/ 17/ 16 Administrative closure letter submitted to the complainants - 9/26/ 17 Administrative closure letter submitted to the recipient - 9/26/ l 7 UN ITED STATES DEPARTl'v1ENT OF EDUCATIO~ Off lCE FOR Cl V I I IUGt-l T S l(IC,Jn, K.\'\'- v 11 , ... '.\II"'" ·L f, I ONEPFmCOAT Lr\i\'[ 1OltJ \ \'ALI\ L'T STlffE1, ~U IT[ .1~0 K,\ \/S,\S CIT'i. \10 h-fl!l,i '" ,m'"" ' ( 11,1 \Ill 1:-.1\ '-l ,1,1 II J .. ,:, 1 ' September 26 , 2017 Sent via ema il to:l(b)(7)(C) fk ,.,tudcnt ,llhi,•\ ·enwnt ,tnd prcp,1 r.1ti, 111i,•r ~It,b,11rnl11f'd1l i\ ,·11< '"" lw i,1,..t<•rin gl•duc,1tio11<1 I L''.\Cl'lll'llCL' ,111cl L't1:-u1 ing L'qu,1l .:1ccL'":--· WI\'\\· l'd.~t I\' 7 Page 2 ... r_l<_l< _c_ ) ____ ____.l - 07 162027 Under OCR's Case Processing Manual at Section 11O(b), OCR will administratively close a comp laint when the same allegations have been filed by the complainant against the same recipient with state or federa l court . 1 Therefore, OCR is closing the individua l allegation of this comp laint effective the date of this letter. An OCR comp laint may be re-fi led wit hin 60 days following tennination of the court proceeding if there has been neither a decision on the merits nor a sett lement of the comp laint allegat ions. Dismissal with prejudice is considered a decision on the mer its. OCR is also dos ing the systemic allegation as to whether the College failed to promptly and equitably respond to other complaints, repo1ts and/or incidents of sexual assault / violence of which it had notice; and as a result , other students were subjected to a sexually hostile environment. OCR has not obtained sufficient evidence to supp01i either an individua l or sys temic finding. OCR is closing the systemic issue pu rsuant to CPM Section 110(o) because there are no cu1Tent allegations appropriate for further investi gation and resolution. Th is Jetter sets forth OCR 's detem1ination in an individual OCR case. This letter is not a fom1al statement of OCR policy and should not be relied upon, cited, or construed as such. OCR 's fonnal policy statements are approved by a duly authorized OCR official and made available to the pub lic. The complainants may have the right to file a private suit in federa l court whether or not OCR finds a violation. Under the Freedom of Information Act , it may be necessary to release this document and related con-espondence and records upon request. In the event that OCR receives such a request , we will seek to protect , to the extent prov ided by law, personally identifiable infonnation, which, if released, could reasonably be expected to constitute an unwarran ted invasion of personal pnvacy. If you have any questions, please contact Nate Hicks , Equa l Oppo1iunity Specialist, at (816) 2680583 (voice) or (877) 521-2 172 (telecommunications device for the deaf) , or by ema il at natc.hicks (a;ed. !.!OV. Supervisory Attorney I The Case Processing Manual is available on OCR's website at http: ·. 1\-w11 .ed.!.!OI" abo ut 'offices. Iis1·ocr tdocs ,ocrcpm.htm I. 8:2? C:'-JJTED STATESDEPARTME NT OF EDUCA rION ,, R I f. l O'\ \'\',,\', OFFICE FOR ClVlL RK,HTS ,11-,-... ,u ,:1 01'E PETI ICOAT LAN[ 1010\\'AL>l l'T STREET,su re 320 \.J BR \'>r- \ t lK I \IH l\1\ KAl\'SA5C I fY, i\1()6 -1106 "l •l T111J \1,1 °1 \ September 26, 2017 Sent via email tdtL',.,fudcn t ,,chiL'H•mcnt .,nd p rt'pn f,•r ,..;inb,,J (1>111p<'t iti, bv f,1,;tcring L'duc.itinnal t''-Ccllc ncc ,1nd L'n,w·in~ L'qu,,I ,1ccc·,,. \,\ "\V\\ .l'd.~l '\ ' \ ' II L'nt·, , Page 2 - ... lH< 1,·11 IU<,llt ·:> OF r,OL ~ /\TION tu·c,tci 1, \II May 17, 2016 Sent via email to: tThine.csc.cdu Dr. Randy Rhine, President Chadron State College l 000 Main Street Chadron, Nebraska 6933 7 Re: Docket # 07162027 Dear President Rhine; On November 24, 2015, the U.S. Department of Education (Department), Office for Civil Rights (OCR), received a complaint against the Chadron State College (College), Chadron, Nebraska. alleging discrimination on the basis of sex. We have determined OCR has the authority to investigate this complaint consistent with our complaint procedures and applicable law. The complainants allege the College discriminated against their clients· daughter (the Student) on the basis of sex by failing to take immediate and appropriate steps to investigate or otherwise determine whether the Student was sexually harassed, thereby subjecting the Student to a hostile environment. Additionally, OCR will investigate whether the College failed to promptlyand equitably respond to complaints. reports and/or incidents of sexual assault/v iolence of which it had notice; and as a result, other students were subjected to a sexually hostile environment. OCR is responsible for enforcing Title IX of the Education Amendments of 197'2(Title IX), 20 United States Code (U.S.C.) § 1681, and its implementing regulation, 34 Code of Federal Regulations (C.F.R.) Pa1i 106. Title IX prohibits discrimination on the basis of sex in any education program or activity operated by a recipient of Federal financial assistance (FFA). As a recipient of FF A from the Department, the College is subject to Title IX. Additional infrmnation about the laws OCR enforces is available on our website al http://www.ed.eov/ocr. Because OCR has determined that it has jurisdiction. and that circumstances in this complaint warranted a waiver of the timeliness requirement, it is opening the complain1 for investigation. Please note that opening the complaint for investigation in no way implies that OCR has made a detennination with regard to its merits. During the investigation. OCR is a neutral fact-tinder. collecting and analyzing relevant evidence from the complainant, the recipient. and other sources, as appropriate. OCR will ensure that its investigation is legally sufficient and is ONl: PFTI ICOAT LA~F. IO IO W \LNL ' IS rRJU. SUITE 3~0. KANSAS CITY. MO 6-~I ()6 \vww.cd.gov / 1 I \t·.11/11r't,tl 11114.-ht. rill"!.''. 1,1i.u1n11 1r ltJ/•t,w1ol,• J/lftf,·IJl /, ftf.'l't'II.': 111 ,J1,;/f11 ji,,r;1f/!i/l j,1r ,1/,;;,,,/,,,,,,; ...• 1/ ,.,.,,.,~, /1J {ri.il f'f11.:, 1/:., ;/1,111,,/,, •I,, 11 t' ;r J 11,11;71/ 1 1 . 1 1 Page 2 - Dr. Randy Rhine, President - 07 l 62027 dispositive of the complaint, in accordance with the provisions of Article III of OCR 's Case Processing Manual. 1 Please read the enclosed document entitled OCR Complaint Processing Procedures, which includes infonnation about: • OCR 's complaint evaluation and resolution procedures; • Regulatory prohibitions against retaliation, intimidation, and harassment of persons who tile complaints with OCR or pmticipate in an OCR investigation: and • Application of the Freedom ofTnfom1ation Act and the Privacy Act to OCR investigations. When appropriate, a complaint may be resolved before the conclusion of an investigation after the recipient asks OCR to resolve the complaint. f n such cases, a resolution agreement signed by the recipient and submitted to OCR must be aligned with the complaint allegations or the information obtained during the investigation and must be consistent with applicable regulations. Information about this resolution process is also explained in the enclosed document. If not resolved before the conclusion of the investigation, OCR investigates the complaint allegations and makes a compliance dctcnnination. If OCR determines a recipient has not complied with a regulation enforced by OCR, OCR will attempt to negotiate a written agreement with the recipient in which the recipient commits to take specific steps to bring it into compliance with the applicable laws and regulations. OCR intends to conduct a prompt investigation of this complaint. The regulation implementing Title VI of the Civil Rights Act of 1964, at 34 C.F.R. I 00.6(b) and (c). requires a recipient of FFA to make available to OCR information that may be pertinent to reach a compliance detennin ation. This requirement is incorporated by reference in the Title IX regulation at 34 C.F.R. § 106.71. Pursuant to 34 C.F.R. 9 100.6(c) and 34 C.F.R. § 99.31(a)(3)(iii), of the regulation implementing the Family Educational Rights and Privacy Acl, 20 U.S.C. 9 1232g, OCR may review personally identifiable records without regard to considerations of privacy or confidentiality. * To expedite our investigation, we request that the College provide the following infonnation to OCR within ( 15) calendar days of the date of this letter (by [June1. ~O'n]). An OCR staff member will contact you within five day~ by telephone to provide you the names of the complainants and the Student. 1 The Case Processing Manuel!is availab le on OCR's website http://www.ed.gov /about 1offices1list/ocr/docs!ocrcpm.html . al Page 3 - Dr. Randy Rhine, President - 07162027 I. For academic years 2013-2014, 20 14-20 15, and 2015-2016, copies of the College's policies and procedures, and/or a description of its practices, governing the investigation of complaints of harassment/assault on the basis of sex. Include a detailed description of the complaint process, including each level of the process, the length of the process, and the types of records maintained. Also, provide the names and titles oflhe College's staff responsible for handling complaints of harassment/assault on the basis of sex, at each level of the process. 2. An explanation of the means by which the College infonned students, parents and employees of the policies and procedures refen-edto in ltem 1, above. Submit copies of all mate1ials disseminated. 3. Copies of publications that contain the College's nondiscrimination notice or website link for any electronic postings of the nondiscrimination notice, and a list of campus locations where the notice of nondiscrimination is physically posted. if any. 4. For academic years 2013-2014, 2014-2015, and 20 I 5-2016, copies of the College's policies and procedures, and/or a description of its practices. governing: (a) disciplinary or con-ective actions that may be taken to address sexual harassment/assault by students, staff and third parties; and (b) the provision of services to the victims of sexual harassment/assault, if any. 5. State whether the College conducts fo<.:usgroups/meetings and/or holds info1mational sessions with the student community (e.g .. women's groups, athletes. residential assistants, fraternity and sorority leaders, etc.) and/or College staff regarding students' rights under Title rx. how lo report possible violations of Title IX, and/or the College's obligation to promptly and equitably respond to Title IX complaints. If so. provide the dates of such events. a description of the attendees. and any materials presented and/or distributed. 6. The name, ofiice address, and telephone number of the College's Title lX Coordinator(s). Indicate the method(s) by which this infonnation is disseminated to students and employees. Provide copies of all publications/websites that contain this info1malion. 7. A detailed description of any training regarding sex discrimination, including sexual harassment and sexual assault, provided to the College's Title lX Coordinator(s) and other College staff, including those administrators responsible for conducting hearings. For each such training, include: a. b. c. d. the date(s) the training was provided; the names and qualifications of the individuals who provided the training; a list of tl1enames and titles of the individuals who attended the training; and copies of any materials distiibuted at the training. Page 4 - Dr. Randy Rhine, President - 07162027 8. Copies of all documentation related to the report(s) of sexua1 assault, as well as reports of harassment and retaliation following the alleged sexual assault, made by or on behalf of the Student, including but not limited to a copy of any W1ittencomplaint(s) or record(s) of oral eornplaint(s), investigative reports, witness statements, hearing transcripts. electronic mail messages (emails), text messages. telephone logs. and corTespondence. 9. A detailed description of the steps and actions the College took in response to all complaints relating to the alleged sexual assault of the Student. and all complaints of alleged harassment, and/or retaliation following the rcp01iof sexual assault, including: a. a description of the procedures employed by the College to investigate the complaints; b. a description of interim remedial measures (academic or other) provided by the College to the Student during the pendency of the investigation; c. the timeline for completion of each stage of the investigation process; d. the types of records maintained; e. the final outcome of all investigation(s); f. the name(s) and title(s) of the College staff involved in the investigation process; g. the evidentiary standard applied by the College to detennine the outcome of the Student complaints; h. copies of the College's Title IX grievance procedures and sex discrimination/harassment (including sexual assault)/retaliation policies and procedures relied upon to respond to any complaints filed by or on behalf of the complainant; and 1. the sex of the complainant, accused person, and witnesses. I 0. Copies of all documentation, including but not limited to. letters, emails, reports. notes. logs, meetjng minutes, hearing transcripts, discipline records. telephone records, Public Safety records, and other external law enforcement agency records related to: a. the College's processing of the complaints filed by the Student or on the Student's behalf; b. the College's handling/investigation of the complaints filed by the Student or on the Student's behalf: including any notices to the pa1iies; c. the disciplinary hearing, including any notices to the parties: d. appeals filed; e. communications between the College and the Student (or anyone acting on her behalf) regarding the accused person; and [ communications regarding the accused person's standing at the College pending completion of the investigation, and/or hearing process. 11. For academic years 2013-2014, 2014-2015, and 2015-2016, a list of a11complaints of sexual harassment or assault, including dating violence. filed by or on behalf of students at the College. Page 5 - Dr. Randy Rhine, President - 07162027 a. b. c. d. For each complaint identified in ltem I 1, provide the following: a detailed description of the complaint processing procedures employed; the len6>1:hof the process; the narne(s) and title(s) of the person(s) responsible for investigating the complaint; e. all actions taken by the College in response to the concerns raised: f. the College's final determination regarding the complaint, and any notice of the findings provided to the complainant; and g. the sex of the complainant, accused person(s), and witnesses. 12. The College's investigative documentation regarding the allegation of sexual harassmt:nt or violence against the Student identified by OCR in this complaint (include witness statements and any documentation responses from the alleged harasser.) l 3. Copies of all correspondence, including emails and any notes from conversations and meetings, between the complainants and the College regarding the alleged sexual harassment. 14. The College's written response to the allegation in this complaint, and any additional information the College would like OCR to consider. OCR requests the College provide the infotmation requested above in electronic fom1atas an attachment to an email or, if the most current documentation is available onlinc, to provide OCR a reference in its data response to the website address or a link where OCR may access the infonnation. In addition, the infonnation may be scanned onto a CD or DVD. lf the College has previously submitted a current version of a requested document to OCR iri another complaint investigation, please infonn us of the docket number of the OCR complaint and OCR will consider the infonnation responsive to our data request. The College may also choose to submit paper copies of the requested information. Thank you for your cooperation in this matter. In addition to the information requested above, OCR may need to request additional infonnation and interview pertinent personnel. If an on-site visit is detennined to be necessary, we wil1 contact you to schedule a mutually convenient lime for tl1e visit. Please notify OCR of the name, address, and telephone number of the person who will serve as the College's contact person during the resolution of this complaint. We would like to speak with this person as soon as possible regarding the infonnation requested in this letter. OCR is committed to prompt and effective service. lf you have any questions, please contact Nate Hicks, Equal Oppo1tunity Specialist. at (816) 268-0583 (voice) or (877) 521-2172 (telecommunications device for the deaf), or by email at nate.hicks@cd.gov. Page 6 - Dr. Randy Rhine, President - 6202? Sincerely. . Earlene Gordon Supen?isory Atmmey Enclosure C1\ . . ED STATES DEPAR1 vlENT or EDL '- t\ Tl ON ( )ff j<:J J•()R <' l \ ' JI. Jrn ; 1rr :-. RI C J<>'\;\ ' II May 17, 20l6 Sent via email to (b)(?)(C) Ii )Ublic·ustice.ncl l(b)(7)(C) Pub lic Justice, P.C. 1620 L Street NW, Suite 630 Washin!:,rton,DC 20036 Sent via email to !(b)(7)(C) jI rh lim .net l(b)(7)(C) Romanucci & Blandin, LLC 33 No1th LaSa .lle Street, 20 1h Floor Chicago, lll inois 60602 Re: Docket ti 07162027 Dear !< ?)(C) ~ stopth ~ (b)(7)(C) 8:17-cv-0003. .)oc # 1 Filed: 01/30/1 7 Page 2 o1 - Page ID# 2 __,I or !(b-)(7-)(-C_) _, ~rotec (b)(7)(C) s... ... lc# 1 Filed: 01/30/17 Page 15 o1 - Page ID# 15 88. l(b)(7)(C) I residents and the RAs. After yet another l(b){?)(C) (b)(7)(C) 89. Had Defendantsnot beendeliberatelyindifferentto the Lr_ )(-?)-(C-) ------- was suffe ring at Chadron. and instead complied with their own policies and Title IX by "'l (b"""' )(,?) .,., """ (C~)----,l properly responding to third-pa1iy reports of the abuse and taking appropriate steps to protect l(b)(?)(C) I could have been stopped.and1..r_ )(-7)-(C_) _____ r )(?)(C) _ could have been prevented. 90. (b)(7)(C) - J Because of Defendants' deliberate indiffcrencd(b)(?)(C) -- . ., (b)(7)(C) (b)(7)(C) I ';11. I 92. beeks to recover all i(b)(7)(C) As personal representative of thi (b)(?)(C) '""l {b"""' )(,7) .,., """ (C~)-----_:_---..:_-----....!:::=============-11 I as well as for the _ l(b)(7)(C) 93. (b)(7)(C) l (b)(7)(C) Because of Defendants ' deliberate indifference. f(b)(7)(C) I 15 8:17-cv-00031 94. 0c # 1 Filed: 01/30/17 Page 16 of As personal representative of - Page ID# 16 l (b)(7)(C) the !(b)(?)(C) r )(7)(C) l(b)(7)(C) 95. l(b)(7)(C) !also seeks damages for these l(b)(7)(C) WHEREFORE, Plaintiffs respectfully demand judgment against Defendants awarding: a) b) (b)(7)(C) (b)(7)(C) c) l're· and post-judgment interest; d) Costs; e) Attorneys' fees, pursuant to 42 U.S.C. § 1988(b); and f) Such other and further relief as the Court may deem just and proper. 16 8:17-cv-00031 JC# 1 Filed: 01/30/17 Page 17 of - Page ID # 17 DEMAND FOR JURY TRJAL Plaintiff respectfully demands a trial by ju ry as to all matters so triable, pursuant to Ruic 38 of the Federal Rules of Civil Procedure. Dated: January 30, 2017 Plaintiffs (bX7XC) l r:r::::::::, By: . WELSH & WELSH, P.C., L.L.O. 9290 West Dodge Road 204 The Mark Omaha. NE 681 J4 - - --- ~""4-8160 '>welsh-law.com NEYS FOR PLAJNT IFFS and r )(7)(C) (Pro Hae Vice Admission Pending) ROMANUCCI & BLAND IN. LLC 33 N. LaSalle Street, 20th Floor Chicago, 1L 60602 (312) 458-1000 (b)(?)(C) a>rblaw .net (b)(?)(C) a)rblaw .net and (b){7)(C) - ac lCe Gmission Pending) PUBLJC JUSTICE, P.C. 1620 L Street. NW, Suite 630 Washington, DC 20036 ?O 797-8600 (b)(?)(C) J7 (@ ublic·ustice.net STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM POLICY: 3020 Sexual Violence or Sex Harassment Reporting, Policies and Procedures Page 1 of 7 BOARD POLICY The Board of Trustees of the Neb raska State Col leges is com mitted to providing an environment in which all students who pa11icipate in College programs and activities can work together in an atmosphere free from unlawful discrimination, hara ss ment, or violence. Sexual violence and sex harassment are prohibited by law and by Board policy and the Co lleges wi ll not tolerate sexual violence or sex harassment in any form, including , but not limited to, sex ual assault; stalking; dating violence; domestic violence; acquaintance , date or strange r rape; non-consensual sex ual intercourse; sexual cyber harassment or sexual bullying. The Co lleges wi ll take appropr iate action to prevent. correct, and discip line harassing or violent behavior that is found to violate Board policies and principles of equal o pport unity and access. This policy provides guidance for what students shou ld do if they have been victims of sexual violence or sex harassment , and what the Colleges will do if such violence or harassment occurs . A student alleged to have committed sex ual violence or sex harassment can be disciplined under the Code of Student Conduct and/or prosecuted under Nebras ka criminal statutes. Additional Board Policies, Employee Handbooks and Co llective Bargaining Agreements , also apply to employees alleged to have committed sexual violence or sex harassment. The Colleges have a responsibility to respond to reports of sexual violence or sex harassment and attend to the needs of the students who are invo lved. Reports of sexual violence and sex harassment are taken with the utmost seriou sness. and the student will be promptly referred to the appropriate persons or resources for assistance. The Co lleges are also responsible to ensure that the individual charged with committing such violence or harassment is treated fairly. Individuals are presumed innocent unless proven respon sible, and will also be referred to appropriate serv ices for assistance. Definitions Dating Violence: Dating violence is violence (violence includes, hut is not limited to sexual or physical abuse or the threat of such abuse) committed by a person (a) who is or has been in a social re lationship of a romantic or intimate nature with the victim; and (b) where the existence of such a relationship shall be detennined based on a consideration of the following factors: (i) the length of the relationship , (ii) the type of relationship, (iii) the frequency of interaction between the persons involved in the relationship. Dating vio lence can occur when one person purposely hurts or scares someone they are dating. Dating violence can be physical, emotional, and/or sexual abuse. Domestic Violence: Domestic violence shall mean felony or misdemeanor crimes of violence committed by a cu rrent or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the vic tim under the domestic or family violence laws, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws. Domestic violence includes patterns of abusive behavior in relationships used by one pariner to gain or maintain power and control over another intimate partner. Domestic violence can be physical , sexua l, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behavior that intimidates, manipulates. humiliates. isolates , frightens, terrorize s, coerces, threatens, blames. hurts. injures, or wounds someone. STUDENT AFFAIRS, NE BRASKA STATE COLLEGE SYSTEM POLICY: 3020 Sexual Violence or Sex Harassment Reporting , Policies and Procedures Page 2 of 7 Under Neb. Rev. Stat. §28-323, domestic assault occurs when a person; (a) inlenlionally and knowingly causes bodily injwy to his or her intimate partner: (b) threatens an inlimate partner with imminent bodily injwy; or, (c) threatens an intimate partner in a menacing manner. Intimate partner means a spouse; a former spouse; persons who have a child in common whether or not they have been married or lived together al any time: and persons who are or were involved in a dating relationship. Sex ual Assau lt: Sexua l assault shal l mean an offense classified as a forcible or non-forcible sex offense under the uniform crime repo11ing system of the Federal Bureau of Investigation. Sexua l assa ult is contact or sexual penetration that occurs w ithout the consent of the recipient. Sexual contact mean s the intentional touching of a person's intimate parts or the intention al touching of a person 's cloth ing covering the immediate area of the person's intimate parts. Sex ual contact also includes when a person is forced to touch another person 's intimate parts or the c lothi ng covering the immediat e area of the person's intimate parts. Sexual contact shall include only such contact which can be reasonably construed as being for the purpose of sexual arousal or gratification of either pa1ty. Sexual penetration means sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercour se or any intrusion of any part of the person· s body or of a manipu lated object into the genita l or anal open ings of another person. Sex Harassment: Sex harassment is unwelcome conduct of a sexua l nature. Sex harassme nt can include unwe lcome sexual advances, request s for sexua l favors , and other verbal, nonverbal or physical conduct of a sexual nature. Federal law (specifically . Title IX) prohibit s student-on-student discrimination , including hosti le enviro nment sex harassment and host ile environment gender harassment. (Gen der harassment may include acts of verba l, nonverbal , or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, sexual orientation and/or gender identity , even if those acts do not involve conduct of a sexual nature.) Harassment do es not have to include an intent to harm, be directed at a specific target , or invo lve repeated incidents. (Fo r instance. as detailed below , a single instance of unwelcome physical contact of a sexual nature could constitute unlawful sex or gender harassment .) Sex and/or gender harassment creates a hostile environment for the student-v ictim when it is so severe , pervasive , or persistent that it interferes with or limits the victi m-student 's abi lity to pa11icipate in or benefit from the Colleges ' serv ices, activities, or opportu nities because of his or her sex or gender. Sex Haras sment includes Dating Violence, Domestic Vio lence , and Stalking as defined in this policy. Sexual Violen ce: Any intentional act of sex ual contact (to uching or penetration) that is accomp lished toward another without his/her consent. Such acts may include, but are not limited to. forced oral sex, forced anal penetration , insertion of foreign objects into the body, and any act of sexua l intercourse "against someone's will." This include s, but is not limited to, the use of a weapon, physical violence or restraint , verbal threats , intimidati on, and threats of retaliation or harm . Sexual Violen ce includ es Sex ual Assault as defined in this policy. Conse nt: Positive cooperation in the act or expressing intent to engage in the act. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. A person who is giving consent cannot be incapac itated by drugs or alcoho l, unconscious, passed out, coming in and out of consciousness , under the threat of violence , injury or other forms of coe rcion, and cannot have a disord er, illness, or disabi lity that would impair his/her under stand ing of the act or his/her ability to make deci sions. A person who is giving consent cannot be forced, coerced or deceived into provid ing consent. STU DENT AFFAIRS, NE BRASKA STATE COLLEGE SYSTEM POLICY: 3020 Sex ual Violence or Sex Harass ment Repo rting, Polici es and Proce dures Page 3 of7 A person may express a lack of consent through words or conduct. A person need only resist, either verbally or physica lly, so as to make the person's refusal to consent genuine and real and so as to reasonably make known to the actor the person 's refusal to consent. A person need not resist verbally or physica lly where it would be useless or futi le to do so. The presence or absence of consent is based on the totality of circumstances. including the context in which an alleged incident occurred. The fact that a student was under the influence of drugs/alcohol may be considered in determining whether that person had consented to the act in question. Consent may not be inferred from silence or passivity alone. Sta lkin g: Stalking shall mean engaging in a course of conduct directed at a specific person that would cause a reasonab le person to; (a) fear for his or her safety or the safety of others ; or , (b) suffer substantial emotional distress . Stalking includes a pattern of repeated and unwanted attention , harassment, contact or any other course of conduct directed at a specific person that wou ld cause a reasonable person to feel fear. Stalking may include: repeatedl y communicat ing with, following, threatening, or sp reading rumors about a person who does not want the attention . St udent: An individual for whom the College maintains records and who is currently enrolled or registered in an academic program or who has completed the immediately preceding term and is eligible for re-enrollment. Reporting Reports can be filed by the alleged victim or a tbird party who is aware of allegations of sexual violence or sex harassment, including other students or College employees. Reports should be filed with one of the designated College administrators and/or employees responsible for student services, as follows: • • • • • • • • President Vice Presidents Deans College Title TXCoordinator (contact information is listed below) Dean of Students Housing /Residence Life Staff to include: o Directors o Managers o Assistant Directors o Senior Residence Hall Advisors o Residence Hall Advisors Coac hes and Assistant Coaches Campus Security Officers Reports to the above designated administrators or employees will constitute "notice " to the Colleg e for the purposes of considering an investigation and institutional response in conj unction with the Title IX Coordinator. Co llege employees (even medical or menta l health professionals identified below) are required by law to report any al legations of sexual abuse or assault of a minor to either law enforcement or the Department of Health and Human Serv ices. STUDENT AFFAIRS , NEBRASKA ST A TE COLLEGE SYSTEM POLICY: 3020 Sexual Violence or Sex Harassment Reporting, Policies and Procedures Page 4 of7 Exception Regarding Employee Reporting : The law recognizes and protects the confi dentiali ty of communications betwee n a person seeking care and a medical or mental health professional. Med ical or mental hea lth professionals emp loyed by the Colleges (L ice nsed Student Counselo rs and Nurses) respect and protect confidential communications from students, faculty , and staff to the extent they are legally ab le to do so. Employees may have to breach a confidence , however, when they perceive an immediate and serious threat to any person or property. Confidentiality The College appreciates the priva cy concerns inherent in allegat ions of sexual violence or sex harassment. To protect students' privacy rights , the names of stude nts or other identifyi ng information , especially that which is con tained in written documents and notes, will on ly be disc losed to third parties if; (a) prior written permission is given by the stud ent concerned; (b) the disclosure is necessary to conduct an investigation ; (c) the disc losure is necessary to pursue discip linary action; or, (d) the disclosure is otherwise required by law. Victims will be informed that the College has a legal duty to include information about reports of criminal sexua l misconduct in annua l sec urity report statistics wh ich do not identify either the person cla iming to have been subject to crim inal sexua l misconduct or the alleged perpetrator. If an alleged victim is under the age of eigh teen ( J 8) years, the Co llege will obtain consent from the parents or guardians prior to beginning an investigation or disclosing infonnation, un less otherwise requ ired by law. lf the a lleged victim requests confidentiality, asks that the report not be pursued , or declines to participate in an investigation or disciplinary proceeding, the Co llege will docume nt the request. The College will take reasonable steps to investigate and respond to repo11s consistent w ith such a request, if poss ible. Requests wi ll be eva luated and weighed aga inst the Co llege's responsibility to provide a safe and nondiscriminatory environment. Disciplinary Processes and Conseque nces Processes and proced ures descr ibed in Board Po licies 3 100 and 3200 may be used subsequent to a sexual violence or sex harassment invest igation to address cases of stude nt misconduct, due process and discip line. lf the alleged perpetrator is an emplo yee, other Board Policies or Co llective Bargaining Agreements will detennine the due process steps and disci plinary co nsequences. Disc iplinary consequences may include, but are not limited to: warnings , discip linary probation, loss of privileges, restitution, remedial work ass ign ments, remedial educat ional requirements, service requirements, remedial behavioral requirements , College housing relocation , College housing suspens ion, removal from College housing, suspens ion, and expu lsion. Law Enforcement Alleged victims shou ld be advised that physical evidence can be collected at the same time as medical ca re is provided , but that medical evidence for a criminal prosecution cannot be co llected without a report being made to local law enfo rce ment. It is impo rtant that students make an informed decision rega rding important physical ev idence that can be preserved. STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM 3020 POLICY: Sexua l Violence or Sex Harassment Reporting, Policies and Procedures Page S of 7 While students are not required to notify law enforcement authorities regarding a report of sexual violence or sex harassment , reports still need to be filed with Campus Security to inform them that an act of violence may have occurred. Campus Security shall notify the Title rx Coo rdinator , who is respons ible for coord inatin g the College respo nse to the report s of sex ual violence and sex harassment. Pursuant to federal law. the College has a legal responsib ility for documenting and report ing an incidence of sexual violence and sex harassment. Regardless of whether or not the law enforcement authorities choose to prosecute a reported offense , the College can pur sue fonnal disciplinary action against a student or employee alleged to have committed sexua l violence or sex harassment. Tit le IX Coordinators (b)(7)(C) Chadron , NE 69337 (308) 432-6355 I l(b)(7)(C) rerustatecouege PO Box 10 Peru, NE 6842 1-00 I 0 (402) 872-22 30 I l(b)(7)(C) Wayne State College 1111 No rth Ma in Street Wayne, NE 68787 (402) 375-7213 Investigation Procedures Note: While this policy and procedures are written primarily for the benefit of students, the same procedures shall also apply in the event either the individual reporting the sexual violence or sex harassment. or the alleged perpetrator. is not a student. Similarly. while the procedures assume that the incident occurred on or near College property or at an official College function or activity. some of these procedures may also apply {l an alleged incident occurs off-campus or in a setting unrelated to Co/legefanclionslactivities. 1) An initial report may occur by telephone , email, in writing , or in person. When an initial report of sexual violence or sex harassmen t is received by any designated administrator or emp loyee (listed in this Policy Lmder" Reporting "), the initial report shall be shared with the Title IX Coordi nator as quickly as possible. 2) The Title IX Coordinator or designee will contact the alleged victim for the following purposes: • • • To ask questions in order to gain a better understand ing regarding the nature of the incident; To explain confidentiality and reporting requirements; To explain the investigatory proc ess, law enforcement options, and possible consequences; STUDENT AFFAIRS, NEBRASKA ST ATE COLLEGE SYSTEM POLICY: 3020 • • Sexual Violence or Sex Harassment Reporting , Policies and Procedures Page 6 of 7 To provide infonnation about resource s that are avai lable to the individua l; and, To ask if the alleged victim wishes for the report to be pursued through an investigation or not. (If the alleged victim requests confidentiality. or asks that the repo1t not be pursued. the Co llege will take all reasonable steps to investigate and respond to the report consistent with the request for confidentia lity or request not to pursue an investigation, if possible. The reque st will be evaluated and weighed against the College's responsibility to provide a safe and nondiscriminatory environment.) 3) The Title IX Coordinator or designee , after consultation with the NSCS General Counsel, will determine if an investigation will be conducted. 4) If an investigation will be cond ucted, the Title IX Coordinator or designee will immediat ely begin an investigation and will take steps to complete the investigation within sixty (60) calendar days after receipt of the report , if possible . The College is committed to a complete and impartial investigation of reports of sexual violence or sex harassment. including the opportunity for both parties to present witnesses and other evidence. Investigations will occur as quickly as possible , but the complexity of the investigat ion, the sever ity and the extent of the harassment , or number of involved parties can impact the duration. The investigation shall consist of: • • • • Reviewing all related written statements or reports ; Interviewing the alleged victim , alleged perpetrator and other witnesses; Reviewing applicable College records ; and, Reviewing other relevant matetial and evidence. 5) The Title IX Coordinator or designee will provide pa11ies involved in the investigation with periodic updates while an investigation is pending, consistent with Fami ly Educational Rights and Privacy Act (FERPA) restrictions. 6) At the conclusion of the investigation , the Title IX ,Coordinator or designe e will make a determina tion regarding the repo1t using a "preponderance of the evidence •· standard (more likely than not that sexua l violence or harassment occurred) and will provide the recommendation to the Vice President respon sible for Student Affairs and the President. 7) Within ten (10) working days from receipt of the Title IX Coordinator's or designee 's recommendation, the Vice President will issue a written statement to the alleged victim. the al leged perpetrator and the Title IX Coordinator regarding the outcome of the investigation and a decision as to whether or not disciplinary proceedings will commence. In the event that disciplinary proceedings commence at the conclusion of the investigation , the College has an obligation to disclose the outcome of the disc iplinary proceedings to the student who repo1is being the victim of sexual violence. 8) If the alleged victim and alleged perpetrator agree with the decision of the Vice President. the matter is considered resolved without any further rights of appeal by either party. If either the alleged victim or the alleged perpetrator object to the decision of the Vice President, either individual may appea l the decision in writing to the President within seven (7) calendar days . The President will review the matter and then issue his/her decision to; (a) affirm the Vice President 's decision ; (b) refer the matter for further investigation; or, (c) refer the matter for disciplinary proceedings. The President' s decision wi ll be final. STUDENT AFFAIRS, NEBRASKA STATE COLLEG E SYSTEM POLICY: 3020 Sexual Violence or Sex Harassment Reporting, Policies and Procedures Pa ge 7 of7 Note: Title IX prohibits retaliation for reporting parties and any indi viduals participating in an investigation. The College will not 011/ytake steps to prevent retaliation but will also take strong responsive action if it occurs. Resources and Assista nce The Title IX Coor dinat or or Designee will have available contact and referra l information for counsel ing/mental health services, medica l serv ices, law enforceme nt, j ud icial remedies /restraining orders. and educational resources. and wil l share resource information with victims and alleged perpetrators. Assistance opt ions including, College no contact orders, changes in academic , living, transportat ion and working situat ions may be made available as remedies to protect victims or witnesses. Policy Policy Policy Policy Policy Policy Policy Policy Adopted: Revise d: Revised: Revised: Revised: Revised : Rev ised: Rev ised: 6/15/ 12 7/29/ 13 12/10/ 13 4/25/14 J 1/7/ 14 1/ 14/ 15 3/26/15 8/5/15 Effective: 7/1/ 12 Effective: 7/ 1/14 Effective: 7/ 1/ 15 2.7.a «I STUDENT AFFAIRS, NEBRASKA STATE COLLRGE SYSTEM I>OLICY: 3020 1/) QI :§ 0 Sexual Violence or Sexuru Harassm ent Reporting , Policies and Procedures a.. en C Page I of 5 t:0 0. .uul violeuce or Sl!XtliH- harnssment can be disciplined under the Code of Student Conduct and/or prosecuted under Nebraska criminal statutes. Additional Hoard Policies. Employee Handhooks and Collective Bargaining Agreements, also apply to employees allegeu to liave committed sexual violence or sexua4 harassment. The Colleges have a responsibility to respond to reports of sexnal violence or sexli&lharassment and attend to the needs of the students who ar~ involved. Reports of sexual violence and scxHa-1harassment are taken with the utmost seriousness, and the student will be promptly referred to the appropriate persons or resources for assistance. The Colleges arc also responsible to .:nsurc that the individual charged with 1:urnmittir.gsuch violem.:t>or harassmc.:nti~ treated foirly. rndividuals are presumed innocent unless proven responsible, nnd will also be refem:c.Jtc>appropriate services for assist.ance. l'O :, >< , .~ 0 a.. 0 Dcfinicions 1/) C Srxua-1Harassmrnt: nwelcome conduct of a sexual nature. Sex harassment can include unwelcome sexual advances, rcqucsis for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature. X harassment .2 1/) ·5 ti) ::, X (IJ en • President 0 • • • • • Vice Presidents Deans College Title IX Coordinator (contact information is fisted below) Dean of Students Housing/Residence Life Staff to include : o Directors 0 M o o c • • N 1 0 0.. 2 VI C 0 Ma11agers ·u; '> Assistant Directors Senior Residence HaH Advisors o Residence Hall 1\dvisors Coaches and Assistant Coaches Campus Security Officers (IJ 0:: Reports to the above designated administrators or emp loyees will constitute "notice" to the College for the pu1po~t:s of consider ing an investigation and institutional response in conjunction with the Title JX Coordinator. College employees (even medical or men tal health professionals identified below) arc required by law to report any allegat ions of sexual abuse or assault of a minor to either law enforcement or the Department of Health and Human Servico:s. 0 N 0 l") >, -~ 0 a.. ,,,_ tll 0 m or Exception Regcmlinf{ Employee Reporting : the law rewgnizes and protect s the confidentiality communications between n person seeking care and a mcdk1:1l or mental health professional. Medical or mental beoltb professional;, employed by the Colleges (Licensed Studeut Co1111selors and Nurses) respect and prote ct confidential communications from students, faculty, and staff to the extent they 11rclegally able to do so. Employees may have to breach a confidence, llOwcvcr, when they perceive an immediate and serious threat to any person or property. 0 .... VI C .2 ·s"' (IJ Cl:'.: c Q) E s:: 0 fO ::: <( Pac ket Pg. 44 2.7.a o(I STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM (/) Cl) ·n 0 POLICY: 3020 Sexual Violence or Sexual Haras sment Reporting , Policies and Procedur es fl.. Page 3 of5 Ct C t0 0. O> a:: The College appreciates the privacy conc~rns inherent in allegations of sexual violence or sexaal harassment. To protect students' privacy rights, the names of students or other identifying informarion, especially that which i~ containe ro pursue an investigation. C: O> u 0 5 Disciplinary Processes io Processesand procedures described in Board Policies 3100 and 3200 may be used subsequent to a sexual violence ur sexttHIharassment investigation to address cases of swden1 misconduct, due process and discipline. ff the alleged perpetrator is an employee. other Board Policies or Collective B:irgaiuing Agreements will determine the due process steps and disciplinary consequences. :I >( Q) (/) i:i N 0 M >, -~ 0 Law Enforcement Alleged victims should be advised that physical evidence can be collected at the same time as medical care is provided. but that medical evidence for a criminal prosecution cannot he collected without a report being made lo local law enforcement. It is important Umt students make an informed decision regarding importam physical evidence that can be preserved. a. 2 -§ Ill (/) ·; Cl) While studenls are not required to notify law enforcement authorities regardmg a report of sexual violence or sexti&l harassment. reports stilt need to be filed with Campus Security to inform them that an act of v10lence may have occurred. Campus Security shall notify the Title IX Coordinator, who is responsible for coordinatmg the College response to the reports of sexual violence and sext!ilf harassment. Pursuant to federal law, the College has ;i legal responsibility for documenting :ind reporting an incidence of sexual violence and sexual-harassment. a:: Q N 0 M Regardless of whether or not the Jaw enforcement au1horities choose to prosecute a repotied offense, the College can pursue formal disciplinary action against a student or employee alleged to have committed sexual violence or sexual harassment. >, ~ 0 .. 0.. "O (V Title IX Coordinator§ 0 co - l(b)(7)(C) 0 1/1 Chadron State College I000 Main Street Chadron, NE 69337 'iii (308) 432-6224 er C 0 ·; GI Packet Pg . 45 2.7.a o(I STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM POLICY : 3020 Sexual Violence or Sexual Harassment Reporting , Policies and Procedures 1/) Q) ·5 0 a. Page 4 ofS Cl C t: 0 0. ro ::s )( (!) (I) 0 N 0 M >t.) ~ a. £ V) 2) C. 0 The Tille IX Coordinator or designee will contact the allcge<.Ivictim for the following purposes: 1/) • • • • • To ask questions i11 order to gain a better understanding regarding the nature of the incident ; To explain confidentiality and reporting requirements; To explain the investigatory process. law enforcement options, and possible consequences; To provide h1formation about resources thal arc available to the individual; and, To ask if the alleged victim wishes for the report to be pursued through an investigation or not. (If the alleged victim requests conficlentiality, or asks 1ha1 lhe report not he pursued, the College will take all reaso11ablc steps 10 inwsligate an<.Irespond to the report consistem with the request for confidentia lity or request not to pursue an investigation, if possible The request will be evaluated and weighed agai11s1 the College's responsibility to provide a safe and nondiscriminatory environment.) >GJ a:: ~ .... ..- 0 N 0 (") >, .!:! 0 a. 'O ~ ti) 3) The Title IX Coordinator or designee, after consultation with the NSCS General Counsel, will determine if an investigation will be conducted. 4) lf an investigation will be conducted, the Title IX Coordinator or designee will immediately begin an investigation and will take steps to complete !he investigation within ninety (90) calendar days after receipt 0f the report, if possibl e. The College is committed to a complete and impartinl investigation of reports of sexua l violence or sex.ial- harassment, including toe opportunity for both parties to present witnesses and other evidence. lnvcstigations will occur as quickly as possible, bur the complcx1ty of the invcstigalion, the severity and the exten t of the harassment or number of involved parties can impact the duration. 0 ro .2 1/) Packet Pg. 46 C .Q 1/) > Q) 0:: 2.7.a "" STUDENT AFFAIRS, NEBRASKA STA TE COLLEGE SYSTEM (I) Ql :§ 0 POLICY: 3020 Sexual Violence or Sexu-a!Harassmeut Reporting, Policies and Procedures a. Page S of 5 Cl C € 0 a. Ql a:: .... The investigation shall consist of: • • • • g E Reviewing all related wri!len statements or reports; Interviewing lhe alleged victim, alleged perpetrator and other wirnesses; Reviewing applicable College records; and, Reviewing other relevant material and evidence. Ill 1// ~ Cl) ::i:: -; ::, 5) The Title IX Coordinator or clcsignee will provide parties involved in the investigation with petiodic updates while an investigation is pending, consistem with ramily Educational Rights and Privacy Act (FERP A) restrictions. >< Ql (/) ... 0 Q/ (,) 6) At the conc}u:.,ionof the investigation. the Title IX Coordinator or designee will make a determination regarding the report using a "preponderance of the evidence" standard (more likdy than not that sexual violence or harassment occutTed) and will provide the recommendation to the Vice President responsible for Student Affairs and the President. C Ql 0 > ;; ::, )( QI 7) Within ten ( I 0) working days from receipt of the Title IX Coordinator's or designce's recommendation. the Vice Prcsidcmtor President will issue a written slalt:menl to the allegeu victim, the alleged perpetrator and the Title lX Coordinator regarding the outcome of the investigmion and 1f disciplinary proceedings will commence. ln the event that disciplinary proceedings conunence at the conclusion nf the investigatio11,the College has an obligation to disclose the outcome of the disciplinary proceedings to the ~ludent who reports being the victim of sexual violence. Note: Title IX pmhibils retaliation for reporti11gpnnies a11dany individua ls pilrl icipat i11gin a11investigation. The College >1•ill1101 011()1 take steps to pre1•e11t retaliatio11but will also take strong l'e~po11siveaclio11(( it occur,\·. IJ) 0 N ~ :>, -~ 0 Cl. 0 - Resources The Title IX Coordinator will have available contact and referral information for counseling/mental health service$, medical services, law enforcement, and educational resources. N .... .,.. I() 0 N 0 M :>, (,) 0 Policy Adopted: 6/15/12 Policy Revised . Policv Rcvi.~ed: 7/2?/ll Effecriv.:: 7/1/1:? Effective: 7/1/14 Cl. ~ Cl) 0 m B 1/) C 0 'iii "i rr Packet Pg. 47 1 Regular Mccling Friday, April 25, 2014 8:00 AM A motion to approve the Recommendation of the Academic & Personnel Committee for the 2014 Teaching Excelrence Award Recipient was recommende 9, by the committee to the fullBoard whjch approved the motjo~. _,, Voting AYES .__ l(b)(?)(C) _____________________ I 2.5 Approve CLEP Agreement for Peru State College Peru State requested approval to enter into a new Agreement with Educational Testing Service (ETS) to offer College Level Examination Program (CLEP). A motion to approve the CLEP Agreement for Peru State College was recommended by the committee to the full Board, which approved the motion. Voting AYES !(b)(7)(C) I 2.6 Approve a Lease Agreement for Use of Wayne State Foundation Alumni House A motion to approve the Lease Agreement for Use of Wayne State Foundation Alumni House was recommended b}:' the committee to the full Board, which approved the motion. Voting AYES: !(b)(7)(C) I I !(b)(7)(C) First and Final Round Approval of Revisions to Board Policy 3020; Sexual Violence or Sexual Harassment Reporting, Policies and Procedures 2.7 A motion to approve the First and Final Round Approval of Revisions to Board Policy 3020; Sexual Violence or Sexual Harassment Reporting, Policies and Procedures was recommended by the committee to the full Board, which aoocoved tbe rnofioo }'° ting AYES: l(b)(7)(C) I l(b)(7)(C) 2.8 First and Final Round Approval of Adoption of Board Policy 3021; Unlawful Harassment (Other) Reporting, Policies and Procedures Q.I (.J C: co (i Q.I A motion to approve the First and Final Round Approval of Adoption of Board Policy 3021: Unlawful Harassment (Other) Reporting, Policies and Procedures was recommended by the committee to the full Board , which approved the motion. Voting AYES:l(b)(7)(C) I !(b)(7)(C) 2.9 (.J Ill Q.I :i .... ----------------- C: ~ First and Final Round Approval of Revisions to Board Policy 5007; AntiHarassment Policy A motion to approve the First and Final Round Approval of Revisions to Board Policy 5007; Anti-Harassment Policy was recommended by the committee to the full Board which approved themotion. Voting AYES j--. optionseither.See id 3 the then-current vers ion of Board Policy 3020. See Chadron State College Student Handbook 20 14-2015 at 37-4 1. It shou ld have included the July 20 14 policy, but instead included a prior ve rs ion that, among ot her things , contained an ove rly nan-ow definition of sexual harassment that did not include gende r-based harassment and was limited to conduct of a sexual nature. See id. at 37-38. As a result , students relying on this outdated handbook would not understand that the col leges we re ob ligated to addr ess acts of '·verbal, nonverbal, or physical aggression ... based on if those acts did not involve "sexual'" conduct. See Letter from sex or sex -ste reotyping"~ven Russ lynn A li, Assistant Secre tary for Civ il Rights. Offi ce for Civil R ights, U.S. Dep·t of Educ ., to Co lleague (Apr . 4, 20 11) at 3 n.9 . It is unclear what steps , if any , NSCS (and Chadron) took to ensure that stude nts. includin (b)(?)(C) ere informed about revisions to Board Policy 3020. Although it appears tha (b)(7)(C) provide l(b)(7)(C) ~vith the Jul y 2014 Policy on November 5. 2014, we are unaware of ev idence tha (b)(?)(C) as informed of her rights under the November 2014 Policy-wh ich for the first tim e include (b)(?)(C) s a form of sex hara ssment. See November 20 14 Policy at page I of 7. We believe NSCS and Chadron share respon s ibility for kee pin g st udents fully informed abo ut the ir Title IX riQhts-including relevant NSCS policies - and fai led to fulfill this responsibil ity to ! Tuesday, January 12, 2016 1:09 PM Swetnam. Tony: Hicks. Nate l(b)(7)(C) Chadron State College, OCR Case No. 07162027 Dear Mr. Swetnam and Mr . Hicks: I hope you both enjoyed the holiday season and your time off. I am writing to follow up on the conference call we had on December 22, 2015 regarding the above-referenced complaint against Chadron State College and the Nebraska State College System (NSCS}. As we discussed, I planned to review the NSCS/Chadronsexual misconduct policy in effect at the tim d(b)(7)(C) ~as a student at Chadron (a copy of which Title IX Coordinato l(b)(7)(C) mailed t q(b)(7)(C) pn 11/5/14) and let you know of any prov isions we believe the school failed to fol ow, as well as any provisions we believe did not comply with Title IX. I When I began my review of the relevant policy (NSCSBoard Policy 3020), I discovered that the version provided to us by NSCSattorne (b)(7)(C) as the current version of Board Policy 3020 (revised 8/5/15), not the version presumably sent b (b)(7)(C) (the version revised 4/25/14, effective 7/1/14). There are two additional factors that complicate my ability to review and comment on the relevant policy. First, the 4/25/14 revision approved by the NSCS Board was not included in (hadron's student handbook for the 2014-15 academic year; instead, the handbook contains a prior, outdated version of the sexual misconduct policy. Second the olicy was revised again on 11/7 /14, two days after Title IX Coordinato ! Friday, December 18, 2015 1:53 PM Alvarez , Jess ~i.;;.. e _____________ Sent : To: Cc: _ k Hicks, Nate f b)(?)(C) NSCS_General Correspondence RE: OCR Case No. 07162027 Chadron State College [IWOV-PJDatab ase.FID97401] Subject : Thank you so much, Ms. Alvarez. Mr. Hicks, I look forward to speaking with you next week. Sincerely, !(b)(7)(C) r l(b)(7)(C) Senior Attorney Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel 202.797.8600 fax· 202.232.7203 e-mal(b)(?)(C) li>publicjustice.net web: www.publicjustice.net Follow me on Twitter ~... Monday, December 21, 2015 10:28 PM Hicks, Nate !(b)(?)(C) Swetnam, Tony Re: Chadron Stat e College, 07162027, Schedule Interview !(b)(?)(C) Sent: To: Cc: Subject: ! Dear Mr . Hicks: Thank you so much for your voice mail and e-mail earlier today. Even though I am current ly out of the office on vacation, I would be happy to talk with you on Tuesday. I think it would be helpful if co-couns (b)(?)(C) participated in the interview too. Once I know his avai lability to talk on Tuesday, I wi ll get back to you wittiL-a -ra_n_g_e_o.,...,.. t,-'mes that work for complainants' counsel and fit within your window of availabi lity. Sincerely, l(b)(7)(C) Sent from my iPhone On Dec 21, 2015, at 4:37 PM, Hicks, Nate wrote: r )(7)(C) This email will acknowledge receipt of your email received by OCR on December 18, 2015. We are assigned to investigate the complaints OCR received on November 24, 2015 that were made against Chadron State College (Docket #07 162027) and the Nebraska State College System (Docket #07 162029). We are in the midst of evaluating these complaints and we would like to schedule a telephone interview with you on Tuesday, December 23, 2015, between 8:00 am and 3:00 pm central standard time. If you are not available on this date, please provide OCR with an alternate date and time after January 8, 2016 to complete this interview. If you have any questions, you may contact me at (816) 268-0583 or (877) 521-2172 (telecommunic ations device for the deaf), or by email at nate.hicks@ed.gov. You may also contact Tony Swetnam, OCR staff attorney at (816) 268-0588, or via email at tony.swetnam@e d.gov. Have a Happy Holiday Season! Nate Hicks Equal OpportunirySpecialist U.S. DepartmentefEducation 1 Officefor Civil Rights One PetticoatLane 1010 Walnut Street,Suite 320 KansasCiry,Missouri 64 106 .net Sent : n ay, ecem r To: Alvarez, Jes~ si:.a, e.......,,......------------, Cc: Hicks, Nate;!(b)(?)(C) ~- NSCS_General Correspondence Subject: RE: OCR Case No. 07162027 Chadron State College [IWOV-PJDatabase.FID97401] Thank you so much, Ms. Alvarez. Mr. Hicks, I look forward to speaking with you next week. Sincerely, l(b)(7)(C) !(b)(7)(C) Senior Attorney Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202. 797 .8600 fax: 202.232. 7203 e-mai(b)(7)(C) ~ ublicj ustice.net web: www .publiciustice.net Follow me on Twitter ,..,! (b... )(""' 7).... (C,.,.. ) ---. From: Alvarez, Jessie [ mailto:Jessie.Alvarez@ed.gov] Sent: Friday, December 18, 2015 2:38 PM To: i(b)(7)(C) I Cc: Hicks, Nate Subject: RE: OCR Case No. 07162027 Chadron State College !(b)(7)(C) I am forwarding this contact information to the investigator. Sent: n ay, ecem To: Alvarez, Jessie ublic·ustice .net] r 1 , 015 2:20 PM I CcftJ) (7)(C) SubJect: RE: OCRcase No. 07162027 Chadron State College Ms. Alavarez: Thanks so much for the update and for letting me know the names of the investigator and attorney assigned to the complaint. I will be out of the office on vacation from Dec. 21 through January 1, but the investigator may call me on my cell:!(b)(7)(C) l Happy Holidays! 2 Best, l(b)(7)(C) .._l (b-)(7-)(C _) ___ ...., ! SeniorAttorney PublicJustice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202.797.8600 fax: 202.232. 7203 e-mail(b)(7)(C) i@publiciustice.net web: www.publicjustice.net Follow me on Twitter: !(b)(7)(C) From: Alvarez, Jessie [ mailto:Jessie.Alvarez@ed.gov] Sent: Friday, December 18, 2015 1:18 PM To t(b)(7)(C) Subject: RE: OCR Case No. 07162027 Chadron State College I !(b)(7)(C) I apologize for not responding earlier. Yes. We did receive the consent form. The complaint has been assigned to Nate Hicks, investigator and Tony Swetnam, attorney. I also requested the investigator to give you a call on Monday or Tuesday, when he returns to the office. If you don't receive a call from him, his telephone number is 816-268-0583. Sincerely, Jessie Alvarez Froni (b)(7)(C) l@publicjustice.net] Sent: Tuesday, December 15, 2015 4:56 PM To: Alvarez, Jessie Cc~(b)(7) (C) Subject: OCR Case No. 07162027 Chadron State College Dear Ms. Alvarez: I am writing to follow up on the above-referenced complaint filed by th (b)(7)(C) family against Chadron State College and the Nebraska State College System . I trust that you received the signed Consent Form on November 30, 2015. Please let me know if you need anything else to process the complaint. I assume that the next step is for OCRto decide whether to grant the waiver of the 180-day filing deadline that the complainants requested. Is my assumption correct? If so, please let me know whether you need any additional information from us to evaluate that reques t. Thank you in advance for your attention to this matter. If you 'd like to discuss any issues, you can call me ai(b)(7)(C) !{direct dial). $iocecelY l(b)(7)(C) l(b)(7)(C) Senior Attorney 3 Public Just ice, P.C. 1825 K Street, N.W ., Suite 200 Washington , DC 20006 tel : 202.797 .8600 ~;;i..;~I.Q 3 ublic·ustice .net web: www.p ublicjust ice.net Follow me on Twitter: !(b)(7)(C) 4 H icks, Nate !(b)(?)(C) From: Se nt: ~ publicjustice.net> Tuesday, December 22, 2015 10:12 AM Hicks, Nate !(b)(7)(C) !Swetnam, Tony RE:Chadron State College, 07162027, Schedule Interv iew To : Cc: Subject : Dear Mr. Hicks: Bot H(b)(7)(C) land I are available today at 1:30 p.m. Central Time. Let us know if that time works for you. If so, Marty and I can call the conference room phone number that you provided to us. Thanks so much, l(b)(7)(C) I (b)(7)(C) enior orney Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202.797.8600 fax: 202.232. 7203 ublic·ustice .net web: stice.net Follow me on Twitte .. !(b-)(-7)-(C_l ___ _. From: Hicks, Nate (mailto:Nate.Hicks@ed.gov] Sent: Tuesday, December 22, 2015 7:57 AM To: i(b)(7)(C) Cc: l wrote: l(b)(7)(C) This email will acknowledge receipt of your email received by OCR on December 18, 2015. We are assigned to investigate the complaints OCR received on November 24, 2015 that were made against Chadron State College (Docket #07162027) and the r ebraska State College System (Docket #07162029). We are in the midst of evaluating these complaints and we would like to schedule a telephone interview with you on Tuesday, December 23, 2015, between 8:00 am and 3:00 pm central standa rd time. If you are not available on this dat e, please provide OCR with an alternate date and time after Janua ry 8, 2016 to complete this interview. If you have any questions, you may contact me at (816) 268-0583 or (877) 521-2172 (telecommunicatio ns device for the deaf), or by email at nate.hicks@ed.gov. You may also contact Tony Swetnam, OCR staff attorney at (816) 268-0588, or via email at tony.swemam@ed.gov. Have a Happy Holiday Season ! Nate Hfrks Equal Opportuni!JSpedalist U.S. Departmentqf Education Qflicefor Ci1Ji/llights One PetticoatLane 1010 Walnut Street,Suite 320 Kansas Ci(Y. Missouri 64106 2 Froni L. __________ Sent: Tuesday, December 22, 2015 10:26 AM Hicks, Nate !(b)(?)(C) Swetnam , Tony To: l Cc: Subject: RE:Chadron Stat e College, 0716202 7, Schedule Interv iew Dear Mr. Hicks: If you think the interview will take longer than 45 minutes, then we should schedule it a bit earlier than 1:30 p.m. Central Time. I have to get on the road at 2:15 p.m. Central to make an appointment. Just let us know what will work best. Thank you, l(b)(7)(C) !(b)(7)(C) Senior Attorney Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202.797 .8600 fax: 202.232 .7203 e-mail:!(b)(?)(C) bublicjustice.net web: www. publicjustice.net Follow me on Twitter j._ wrote: r )(7)(C) This email will acknowledge rece ip t of your email recei ved by OCR on December 2 18, 2015. We are assigned to investigate the complaints OCR rec eived on ovember 24, 2015 that were made against Chadron State College (Docket #0 716202 7) and the N ebraska State College System (Docket #0 7162029). We are in the midst of evaluatin g these complaint s and we would like to schedule a telephone interview with you on Tuesda y, December 23, 2015, between 8:00 am and 3:00 pm central standard time. If you are not available on this date, please pro vide OCR with an alternate date and time after January 8, 2016 to complete this interview. If you have any questions, you may contact me at (816) 268-0583 or (877) 521-2172 (telecommunications de vice for the deaf), or by email at nate .hicks@ed.go v . You ma y also contact Tony Swetnam, OCR staff attorne y at (816) 268-0588, or via email at cony.swetnam@ed .gov. Have a Happ y Holida y Season! N ate Hicks Equal Opportuni( y Spetiafist U.S. DepartmentofE ducation Officefor Civil Rights One PetticoatLane 1010 Walnut Street,Suite 320 KansasCiDJ , Missouri64106 From j{b){7){C) ~ publiciustice .net] Sent: Friday, Decem ber 18, 20151:53 PM To: Alvarez, Jesf Cc: Hicks, Nate; Subject: RE: o {b){?){C) case No. 07162027 ~ NSCS_General Correspondence Chadron State College [IWOV-PJDatabase.FID97401] Than k you so m uch, Ms. Alvarez. M r. Hicks, I look forward to speaking with you next week . Since rely, !(b)(7)(C) !(b)(7)(C) Senior Attorney Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202 .797.8600 fax: 202 .232. 7203 e-mail: (b)(7)(C) ublic·ustice.n et web: www .pu icjusti ce.net Follow me on Twitte ~..(b_)(_7)_(C_) __ _. From: Alvarez, Jessie [ mailto:Jessie.Alvarez@ed .gov] Sent: Friday, Decembe r 18, 2015 2:38 PM To: !(b)(7)(C) I 3 Cc: Hicks, Nate Subject: RE: OCR case No. 07162027 Chadron State College l(b)(7)(C) I am forwarding this contact informat ion to the investigator. ,Fom ;: !(b)(?)(C) @publiciustice.net] Sent: Friday, December 18, 2015 2:20 PM To: Alvarez, Jessie I Cc : j(b)(7)(C) Subject: RE: OCR Case No. 07162027 Chadron State College Ms. Alavarez: Thanks so much for the update and for letting me know the names of the investigator and attorney assigned to the complaint. I wi ll be out of the office on vacat ion from Dec. 21 through January 1, but the investigator may call me on my cell: 202-744-3012. Happy Holidays! Best, l(b)(7)(C) l(b)(7)(C) Senior Attorney Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202.797.8600 fax: 202.232. 7203 e-ma i!(b)(7)(C) lpubl icjusti ce.net web: www .publi cjustic e .net Follow me on Twitt e 1._ Tuesday, December 22, 2015 ll:40 AM Hicks,Nate !(b)(7)(C) t wetnam, Tony RE:Chadron State College,07162027, Confirmation of ConferenceCall From: Sent: To: Cc: Subject: Mr. Hicks: Thank you for confirming today's calU(b)(7)(C) land I look forward to speaking with you. We will both call in to the conference room phone number at 1:30 p.m. Central Time today. Sincerely, !(b)(7)(C) (b)(7)(C) en1or orney Public Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202.797.8600 fax: 202.232. 7203 e-mail!(b)(7)(C) lpublicjustice.net web: www.publicj ustice .net Follow me on Twitter!._ (b..;.; )(~7).(C ;....;.; ) __ ----- ----- __. From: Hicks, Nate [mailto:Nate.Hicks@ed.gov] Sent: Tuesda December 22, 2015 12:24 PM To (b)(7)(C) Cc: (b)(7)(C) Swetnam, Tony SubJect: RE: C a ron State College,07162027, Confirmation of ConferenceCall rb)(7)(C) This email is to confirm that the conference call will be taking place on Tu esday, December 22, 2015 starting at 1:30 pm, central standard time. Itis anticipated that this conference call should not exceed 45 minutes. As- Pre ..,,1·ousl)1 rnenn·oned, you s·a1·d you an 9j...(b-)(-?)-<_C)_ number (816) 268-0459. __.I will be ca lling OCR ' s con1erence c room at te lep hone W/e look fonvard to the conference call with you and others on today. If you have any questions, you may contact me at (816) 268-0583 or (877) 521-2172 (telecommunic ations device for the deaf), or by email at nate.hicks@ed.gov. You may also contact Ton y Swetnam, OCR staff attorney at (816) 268-0588, or via email at tony.swetnam@ed.gm r. Again, thanks for all of your assistance! 1 Sincer el y, N ate Hi cks E qual OpportunitySpecialist [). S. DepartmentrifEducation Of/ice.for Civil Rights 0 ne Pettfroat Lan e 1010 Walnl,ftStreet, S uite 320 Kansas Ci!J, Misso11ri64106 From ~(b)(7)(C) ~publicjust ice.net] Sent: Tuesday, December 22, 2015 10:26 AM To: Hicks. Nate cd(b)(?)(C) , lswetnam, Tony Subject: RE: Chadron State College, 07162027 , Schedule Inte rview Dear Mr. Hicks: If you think the interview will take longer than 45 minutes, then we should schedule it a bit earlier than 1:30 p.m. Central Time. J have to get on the road at 2:15 p.m. Central to make an appointment. Just let us know what will work best . Thank vou, l (b)(7)(C) !(b)(7)(C) Senior Attorney Public Just ice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202.797.8600 fax: 202.232.7203 e-mai lC bVZVCl b ublicju st ice.net web: www.pub liciust ice.net Follow me on Twitte l-(b... )("" 7)'"" (C_) __ _ Fro ~ (b)(7)(C) Sent: Tuesday, December 22, 2015 11: 12 AM To: 'Hicks, Nate' Cc !(b)(7)(C) Swetnam , Tony Subject: RE: Chadron State College, 071620 27, Schedule Interview ! Dear Mr. Hicks: .....and I are available today at 1:30 p.m. Central Time. Let us know if that time works for you. If so, and I can call the conference room phone number that you provided to us. .......,....,..+.,.. ___ (b)(7)(C) I Thanks so much, l (b)(7)(C) 2 !(b)(7)(C) Senior Attorney Public Justice, P.C. 1825 K Street, N.W ., Suite 200 Washington, DC 20006 tel : 202. 797 .8600 fax : 202 .232.7203 e-mail!(b)(7)(C) l ublicjustice.net web: www.pub licjustice.net Follow me on Twitter: ... !(b-)(-7)-(C_) __ _, From: Hicks, Nate [mailto :Nate.Hicks@ed.gov] Sent : Tuesda December 22, 2015 7:57 AM To• (b)(7)(C) Cc (b)(?)(C) Swetnam, Tony Subject: RE: Chadron State College, 07162027 , Schedule Interview l(b)(7)(C) T hank you for responding so promptly. We look forward to hearing from you and arranging a mutual time to discuss these complaints with you and co-counsel j(b)(7)(C) !today. If it would be logistically easier, you may call us in our conference room by calling OCR's telephon e number at: (816) 268-0459 after we all agree on the best time for this conference call. Howe ver, if you prefer that we call you, please provide us witl1 the telephone number(s ) to use when contactin g you and !(b)(7)(C) ! We really appreciate your assistance in coordinating the inter view while you are on vacation. Na te Hick s From.!(b)(?)(C) l~publiciustice.net] Sent : Monday, December 21, 2015 10:28 PM To : Hicks, Nate cd(b)(7)(C) Swetnam, Tony Subject: Re: Chadron State College, 07162027, Schedule Interview I Dear Mr. Hicks: Thank you so much for your voice mail and e-mail earlier today. Even though I am currently out of the office on vacation, I would be happy to talk with you on Tuesday. I think it would be helpful if co-couns~ (b)(?)(C) b articipated in the interview too. Once I know his availability to talk on Tuesday, I will get back to you w ith a range of times that work for complainants' counsel and fit within your window of availability. Sincerely, !(b)(7)(C) Sent from my iPhone 3 On Dec 21, 2015, at 4:37 PM, Hicks, Nate wrote: l(b)(7)(C) This email will acknow ledge receipt of your email received by OCR on December 18, 2015. We are assigned to investigate the complaints OCR received on November 24, 2015 that were made against Chadron State College (Docket #07162027) and the Nebraska State College System (Docket #07162029). We are in the midst o f evaluating these complaints and we would like to schedule a telephone interview with you on Tuesday, December 23, 2015, between 8:00 am and 3:00 pm centra l standard time. If you are not available on this date , please provide OCR with an alternate date and time after January 8, 2016 to complete th.isinterview. If you have any questions, you may contact me at (816) 268-0583 or (877) 521-2172 (telecommunications device for the deaf), or by email at nate.hicks@ed.gov. You may also contact Tony Swetnam, OCR staff attorne y at (816) 268-0588, or via email at tony.swetnam@ed.gov. Have a Happy Holiday Season! Nate Hicks Equal OpportunitySpecialist U.S. Departmentqf Education Office}or Civil Rightr OnePetticoat Lane 1010 LValnutStreet, Suite 320 KansasCi(y, Missouri 64106 From ! @~pu""b""l,,.,,ic....,ju::.:S:,,,:ti""'ce,,.,."-'n=et] 201s2:2~PM I Cc:lJed: RE: OCR Case No . 07162027 Chadron State College Ms. Alavarez: Thanks so much for the update and for letting me know the names of the investigator and attorney assigned to the complaint. I will be out of the office on vacation from Dec. 21 through January 1, but the investigator may call me on my cell: 202-744-3012. Happy Holidays! Best. l(b)(7)(C) l(b)(7)(C) Senior Attorney Pub lic Justice, P.C. 1825 K Street, N.W., Suite 200 Washington, DC 20006 tel: 202.797.8600 fax: 202.232.7203 e-mail: !(b)(7)(C) b ubl icjust ice.net web : www.pub licjustice.n et Follow me on Twitter l< ...b_l<_7l_1 Chadron State College 03/06/20 13 07132 18(1 Chadron Staie College 03/26/20 13 07132'.!27 Chadron Stale Colleg" 05/09/20 13 06112120 13 34 Closed 07 142074 Chadron S1a1e College 0 1/I3 /20 14 04/21/20 14 98 Closed 07152078 Chadron S!:ite College 02/ 17/2015 0-i/07120 15 49 Closed 071(,2027 Chadron State Colleg<· 11/24/2015 I F.valualion Jessie /\ lvarcz Jessie Alvarez 07982<).t() Chadron Stat.: Colh:gc 04/20/ 1998 05/28/ 1998 38 Closed Lawrence l.ec Wenda Taylor 07992093 Chadron State College 06/02/ 1999 11/ 18/199() 169 Closed Kay Schlaglc Brent Mocrer A 029921.1I Chadron State College 06/04/ I999 11/01/ 1999 150 Closed Kay Schlaglc Brem Moerer /\ 0799223-1 Chadron Stmc Colh:gc To tal Records Found: 10 08/ 13/1999 10/0 1/1999 ..\9 Closed K~y Schlagle Brcnl Moerer D Glenn Grnyson Kansas City RT l) D Office Julie Murphy Glenn Grayson Kansa~City D ornce Su:vc Strailon /\ Steve Stratton D N New TA Submit TA Reports http://cms/cmsvd/SearchForm.aspx 11/25/2015 Hicks, Nate From: Sent: To: Cc: Subject: Hicks, Nate Monday, May 23, 2016 4:32 PM !{b)(7)(C) ! Swetnam,Tony;.(b ._l .._ )(_.. 7).._ (C.._ ) ___ ____. RE:Chadron State College, 07162027,Telephone ConferenceCall !(b)(7)(C) Thank you for providing OCR with your contact infom1ation and available times for conducting the telephone conference call. We look forward to discussing this complaint with you. Tony and I would prefer making the telephone conference call to you on Wednesday, May 25, 2016 starting at 10:30 am. We will call you on your direct dial phone at: 402.636.8290, not unless you prefer us calling you at another telephone number. If you have any questions regarding this scheduled date and time, please do not hesitate to call. Again, thanks for all of your support and assistance! Nate Hicks From f b)(?)(C) bbairdholm.com] Sent: Monday, May 23, 2016 3:29 PM To: Hicks, Nate Cc: Swetnam, Tonv11.l (_ b)(_7)__ (c_) ___ ...., Subject: RE: Chadron State College, 07162027, OCRComplaint Good afternoon Nate T hank you for your email. I am available every day this week after 10am CST to talk with you and Tony. Please let me know what works for you. I look forward to it. l(b)(7)(C) l(b)(7)(C) Baird Holm LLP 1700 Farnam Street Suite 1500 Omaha, NE 68102-2068 www.bairdholm.com l(b)(7)(C) Direct Dial Phone 402.344.0588 Fax !(b)(7)(C) ~ bairdholm.com 1 This communication, along with any attachments , is covered by federal and state law governing electronic commun ications and may contain confidential and legally privileged information . If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution , use or copying of this message is strict ly prohibited . If you have received this in error , please reply immediately to the sender and de lete this message . Thank you. From : Hicks, Nate [ma ilto:Nate.Hicks@ed.gov] Sf(IJ' ):(7 ){t~ )''rcdolt MoH 1Q 'lt'l11C' IC'.t'l-t i ___ T Cc: we nam, I ony nu I Subject: RE: Chadron State College, 07162027, OCR Complaint Dea d Fcidw October :lQ 2015 6:15 PM l(b)(7)(C) J' Subject: FW: domestic violence confusion Follow Up Flag: Flag for follow up Flagged Flag Status: (b)(7)(C) Sent: ues ay, une , 2015 12:46 PM To: [REDACTED] Subject: RE: domestic violence confusion Dear l f{[DACr[Dj , Thank you for your follow-up email to the U.S. Department of Education's Office for Civil Rights (OCR) regarding whether Title IX requires schools to address domestic and dating violence. Each case is fact -specific and each determination is based on the particular set of facts presented. Although we do not give legal advisory opinions, we do provide information on how the civil rights laws that OCRenforces apply generally. You are correct that sex-based harassment must be sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's educational program (i.e., creates a hostile environment) to cause a Title IX violation. As the Department explained in both the Notice of Proposed Rulemaking and the Final Regulations implementing the changes made to the Clery Act by the Violence Against Women Reauthorization Act of 2013, the Clery regulations address only an institution's responsibilities under the Clery Act, and do not affect or conflict with the requirements under Title IX as interpreted by OCRin its guidance documents. A recipient can comply with both Title IX and the Clery Act. (See, e.g. 79 Fed. Reg. 35445 (June 20, 2014), 79 Fed. Reg. 62772 (October 20, 2014)) It is true that much of the conduct that constitutes domestic or dating violence as defined in the Clery Act regulations at 34 C.F.R. § 668.46(a) would raise Title IX concerns because of the nature of this type of conduct. Nothing would prevent an institut ion from app lying its Title IX procedures to all conduct that constitutes domestic or dating violence under the Clery Act. OCRis committed to providing the public with information about the civil rights laws OCRenforces. In responding to correspondence, OCR provides general, publicly available information about a wide variety of civil rights issues in the education context. OCRdoes not, howeve r, provide legal or other advice or issue advisory opinions to customers concerning specific factual scenarios. Correspondence issued by OCRin response to an inquiry from the public does not constitute a formal statement of OCRpolicy and should not be construed as creating or articulating new policy. OCR's forma l policy statements are approved by a duly authorized OCRofficial and made available to the public. We hope this information is helpful. Sincerely, Rachel Gettler Program Legal Group Office for Civil Rights From: [REDACTED] Sent: Thursday, June 11, 2015 5:47 PM To: Gettler, Rachel Subject: Re: domestic vio lence confusion Hi Rachel, That is helpful. Allow me to probe a little further, if I may... 1) Minor DV that does not cause an educational deprivation is not covered by Title IX and need not be subject to a Title IXbased resolution, is that correct? 2) DV that is not sexual or sex-based could, under the interpretation you just provided, be subject to a second set of standards different than those addressing Title IX-based DV by most campuses. However, all DV is covered by VAWA Section 304, with its Title IX-li ke protections . VAWA does not make the distinction about sex-based or sexual conduct. Any advice on addressing victim concerns t hat some DV is subject to a differe nt set of procedures than other DV? Any thoughts about asking college administrators to make Solomonic ju dgments about whether DV is sex-based that many of them are not equipped to make? 3) If Joe is in a relation ship, and he chooses Jen as his girlfriend, and he chooses her for that role based on her gender (and other qualities), and then he hits her, is t hat gender-based? Your letter seems to suggest no, or maybe, but allow me to explore. He did not hit Jen because she was a woman, he hit her because she was his girlfriend (he does not hit his nonromantic friends or other women), and she is his girlfriend because of her gender. Were she not female, he would not be dating or hitting her. Thus, since the act is directed at his girlfr iend, and his relationship is gender-based, why isn't his violence gender-based, at least in part? Isn't much of men1 s violence toward women inherently gendered, based in power exertion and differentia ls, on control, and on male superior strength (he knows she will not hit back, or hit back hard enough)? I feel like your answer, for appropriate reasons, is perhaps more legally-based than rooted in the social constructs and sociology of IPV, but I think the best answer for a college has to take both into account, not just the legal underpinnings . Again, anything you can provide as further guidance or amplification would be most appreciated. Regards, LRFD,'\CTEO ] From: "Gettler, Rachel" Date: Thursday, June 11, 2015 at 2:50 PM To: (REDACTED] Subject: RE: domestic violence confusion Dear f REDA( TEDJ Thank you for your email to the U.S. Department of Education's Office for Civil Rights (OCR) regarding whether Title IX requires schools to address domestic and dating violence. Each case is fact -specific and each determination is based on the particular set of facts presented. Although we do not give legal advisory opinions, we do provide information on how the civil rights laws that OCR enforces apply generally. As you are aware, OCRenforces Title IX of the Education Amendments of 1972 and its implementing regulation at 34 C.F.R. Part 106 (Title IX), which require schools receiving federal funding to respond promptly and equitably to allegations of sex discrimination, including sex-based harassment. Sex-based harassment of students by peers, employees, or third parties viol ates Title IX if it is sufficiently serious that it interferes with or limits the student's abil ity to participate in or benefit from the school's educational programs or activities (i.e., creates a hostile 2 environment). Sex-based harassment includes sexual harassment and gender-based harassment. Sexual harassment is unwelcome conduct of a sexual nature, such as sexual violence, unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Gender-based harassment is unwelcome conduct of a nonsexual nature based on sex or sex stereo t yping, including acts of verbal, nonverbal, physical aggression, intimidation, or hostility. When a school knows or reasonably should know of possible sexual or gender-based harassment, it must take immediate and appropr iate steps to investigate or otherwise determine what occurred. If an investigation revea ls that sex-based harassment created a hostile environment, the school must then take prompt and effective steps reasonably calculated to end the sex-based harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects. Because not all behaviors associated w it h domestic or dating violence will be considered conduct of a sexual nature (e.g., hitting or pushing), determining whether such an incident triggers a school's ob ligations under Title IXrequires an in-depth review of the facts at hand. Harassing conduct like domestic or dating violence could still be based on sex or gender, even if not sexual in nature, and therefore may still be prohibited by Tit le IX. An educational institution should analyze the specific conduct associated with an allegation of domestic or dating violence to determine whether it is sexual in nature or is otherwise based on sex o r gender, and meets the other requirements for a hostile environment under Title IX. If so, then Title IX requires the educational institution to respond appropriately. For example, if a male student physically assaults his girlfriend, a female student, because he is jealous that she is talking to another male student, and as a result she is afraid to attend the classes she shares with him, his behavior likely wou ld be prohibited by Title IXbecause it is conduct based on sex that denies or limits her ability to benefit from the school's educational program. OCRis committed to providing the public with information about the civil rights laws OCRenforces. In responding to correspondence, OCRprov ides genera!, public ly available information about a wide variety of civil rights issues in the education context. OCRdoes not, however, provide legal or other advice or issue advisory opinions to customers concerning specific factual scenarios. Correspondence issued by OCRin response to an inquiry from the publ ic does not constitute a formal statement of OCRpolicy and should not be construed as creating or articulating new policy. OCR's formal policy statements are approved by a duly authorized OCRofficia l and made available to the public. We hope this information is helpfu l. Sincerely, Rachel Gettler Program Legal Group Office for Civil Rights From: [REDACTEDJ Sent : Friday, May 29, 2015 1:09 PM To: Gettler, Rachel Subje ct: domestic vio lence confusion Hi I{ 1( lv:I, I jus: received 11,,se·11all Can you please clarity when r1nd how Title IX rcouires colleges .tnd 5chools to address domesti c and dat nevio.ence? Thanks. H, l rH:DA.CTl:D L 3 Ju,.t •..vari ed to let you know I put in a Tl\ Cilll to OCR or Tuesd;:iy about whether dat1ng/domest1c violence ti igg~1<,Ttle IX. lPEDACTEDJt>f '111.'Bo•.ton nf ficp JW;t ral led to say that lJtie 1X would only be triggerecl in datmg/do'Tlestic violence ,_ases1fsexuul viul~11ce wert'! ~i co111poner1l.So, 110TiX :f 1he violenct> were purely physicJi and non-sexual. Unh r'unate!y 1his into , ma lion W,Js by phon~, not in w rit ing. Is th is something you could clarify with OCR in writing r,n yot.r end, if you think it wo u ld be help f ul tor oth(!rs? If what [REDACTEDJ,-aicl is accu rate, it means thc1r DV cases without ,e>:u,11viole•iCP don't r,,qu1rn ,1\s?parnte 1chr,o l ,nvestig;:irion (,:ind th0 sct10GIcould rnly on police invest1g;:ition~.). [REDACTED] Regards, I.REDACTED ] 4 OCR KANSASCITYTRANSFERSHEET I 07162027 OCR DOCKET# INTAKESTAFF:Alvarez INV. TEAM: I COMPLAINT RECEIVED:11/24/15 RECIPIENT :! Chadron State College,Chadron, NE l(b)(7)(C) COMPLAINANl1._______ __._ I PHONd ----- CONSENT:YES~ EMAIJ~b)( 7)(C) 202-797 -8600 COMPLAINANT INTERVIEWED: //2015 INTERVIEWSUMMARY COMPLETED: NO D l>ublicjustice.net COMPLAINANTINTERESTED IN ECR: YESO YESO NO 0 NO 0 JURISDICTION: Section 504 0 Title II O Title VI O Title IX IZI Age O Boy Scouts 0 HIGH PROFILE/SENSITIVE CASE:YESO NO O (Title VI Discipline) FLAGREPORTSUBMITIED:Cl1ck here to enter a datf> ISSUEIDENTIFICATION: Questionable issues: timeliness and domestic abuse OTHER RELEVANT INFORMATION: RECOMMENDFOR RRP: YESO NO 0 E-V United States Department of Ed uca ti on Office for Civil Rights 1010 \'X1alnut Stre et, Suite 320 Kans a s Ci ty, Miss ouri 64106-2103 816-268-0550 (voice) 877-521-2172 (TDD) 816-268-0599 (fax) E-Mail: OCR.KansasCity@ed .gov CONSENT FORlVI- FOR REVEALINGN.Al\:1E AND PERSONAL INFOM1ATI0N TO OTHERS ..............------ \ , (b)(7)(C) . ou r ,... .~amc: .._ ____________ ~~~=,g, ~ or type except for signamrc lme) _ ______________ _ Cvtt?r,frM \rime of ~choo l or Other I? stitut ion_! ha~ You H a,:c Filed This Complaint .\.gainst: • • • • • • 'SrnteCot11.'~e.. ,V~.asb< 5YI.Wllfk°¥rr, flu,, fNm asks ,\·:;ctner the Otnce ~or(1\ ·1: Rights 1(JCR1ma~ s~c.reyour n~r.1eJ ,, 1 ,-1J;e· .:,: ni! ,1 ,,, ,;~ ,,r wh~n OCR clec1des that domg so will :issist m i:westisatmg .rnd res,11\mg you~ compbim. rur extimple. to decide \\'hether s sch00l dis~rnruneted against a per~,1n,OCR 0ften needs lO re\ e.:I •bt nerj,,n ' n:m~eand <_11hcr personal infonnation to employcc5 at ·1-iatsd-:0(1] to \·en:\ facts N g:1 add:ilOnBlinfon~.a:")n W'1en OCR docs th;,t, 01R 1:1fonnsthe cmr1oyces 1hm all forn1s of·rr:i;i:uion ~ga11·,,;11J,;:i: rcr--,,n a·1d d·cr 1ndrvid1..:aJ5 a,;soc1ftled w1th 1r.eperson are prnhib1ml. OCR m.:iyc1lso:-en::.:;lthe pcrH)n·, •i:;:re rnd pe--"i:'r:al 111:~1nn..it1011 during :mcf\'!C\\S w:th wllnesses and ~e>nsu'.t.11ion:) •,\,th expcr:s !1 OCR 1s no1 al:owrd to reveal your name or personal mfonnauc,r. ,is des"ribed a?··O\·C.i lCR 1r.,,ytil'c1Jc ·0 u,:~ yow C<'111,,lain1 1f UC}{de1enr.1:1cs:1 rs necessary 10d15cJ0st'ym:r n.:1mcor perscn.i1 1r.1,:;1-:11:.it '(.'n 1·1. r~er ,,, ::-csolVe' w 11t1hcr the ~chool S ,)1g~~ieralpublic. inch.du1~ the 'ia1:1ec:.,fthe school or insti1i;1:0n:r:~ed2.1eyN1rcrirnrJa1m .,,a5 f1:cd: rhe ·~vc c,t' J1,cn11:;nauonin.::uced U'l yC1ur..:omplamt.the care your complamt •,,;a.sresolved. disnmscd c:-ck scd: ·J1eb,;sic reasc,Gst"orOCR 's decision, or other ,dared :.nf0m1ar10:1 An;" infcm1a1ionOCR releases ~o :he pre.s1;0- ~ena:i: ;:,t;blic will not include your name or the name of the person on whose beha!r'you filed •lie complaint '\"OTE OCR req:.iires you 10 ,esporld lO its ,equests for tnformation. f-ailtire to c0tit1ffHc w:th OCR ·s 11westigauon and reSl"lurionactivities could result •n the do5ure of)(>Ur ckrn· • :TI}JS rnm1asks 'I' hether the Office for Civil Rights(OCf<.)ma} snare )•ourr,amc and orhe1pi,rs-,ndl inform~tion ~·h~n OGR decides1ba1veriry fll..::f!< or get aaditln1u1l Information . WhenOCRdee..sthat,OC~ ilH('lrros th(' emi,Joyeesthat aUfJ~r in.;titurl.on, the date )'O-wfC'm'lpl.itot was filed. the t}-pe ,;f lf1S"..ntn1nau071 w:ludcd ln )-0\\J .c:mipla1r,t;1herlai~yo1..1 Cl'lmpliilnt was 1<>1:olvcrl ; dismtssd oru!oseo. th;;.!>a:.1c :ri:asonslor OUl ·~ decision; ()I ot.'ierr:lated mfonMlion.Any 1nform;,tionOCR.releases to the i,N:SQ ,,, ~ner:iJ public1, iHnot i,l..luocyo .1rfli1rne 1~1 thr•nameot'\lropmnn on whcm:.!.le!iatt you tiled tlu:complaint. 10 it3 requestsfor infonnation. faiiurt t,; :ooperat~with t1CR ·s in,estigatlon NOYE: OCR ttq4iles you !Qr.egr,ond 3ndn.,ol\lJionaccivi(ie.scould result in the clowra of your c:pmplaint. Please s ign i;cction A or 6ed1on ll (but not both) and return to OCR: • lf.:yo\tfi'lcd the tt>mplainton bdudf of yo~df, }O\.. shmJJds1g~thi, form • if)'O\I iill!dthe c~mplaint o:i bcha.lf.llfti.!tOthcr ,p::ofic person,that t1tl)et pcm,n $r!Ou ld ~ign !ltt, !btm £XCE?TI0~ It'the ..:01nplafa1 was tild !>'l behalfof a specificr ersor1who is} oungerthan ! S ;&ir, old or n adult, mis fonn musr he ~igiicdb} the paren~or legal Allaidi.auof that _pc.t~!m. leg.aUymcompe1em Cfyou·-!UedthC'complaint on behalfo'f11c~~~ of pe!lple_ ratherthanany specificper~oi~you should,.ign ,h~form • II A .I lm'.!OCR 1r1~·cousen~to reveal my identity ()tnd 1lt&t-0fni} ml11ol'childfward o.nwhose lwblllf·the (b)(7)(C) · ·s 1ITT"estiga1ion and enforcement ac{ivlttes. //-2<; - I~ " f>Me QB B•. J do Mt give.OCR my consent to reveal my identity (and that ofmy minor chilt ,~1" th, · AA - - .-.th ..i(b)(7)(C) I ___. (b)(7)(C) (b)(7)(C) (b)(7)(C) (b)(7)(C) in turn, informed the athletic director. Chadron's athletic director infonned the school's Titl e LX Coord inat or of these re\;r ts and, after speaking ·with the assistant coach, the TitJe IX Coordinator sent a letter t~(b)(?)(C) he letter enclosed a copy ofNSCS 's seven-page policy on sexual vio lence and harassment. It also infonne 4(b)(?)(C) her right to discuss possible violations of the policy with the Title IX Coordina tor and the availability of the Title TXCoordinator an4(b)(?)(C) boaches to help. j(b)(?)(C) ~ubsequently sent ru, e-mai l to the Title IX Coordinator asking why this information had been sent to her . The Title IX Coordinator responded that she was obligated by federal law to contact !(b)(7)(C) ~ue to confidential information raising concerns about potentiaJ violations of the policy. There was no fuither commtmication betwe d(b)(?)(C) lnd the Title IX Coordinator. Nor did the Title IX Coordinator take any addilional action to determine whethet(b)(7)(C) ~as being !(b)(?)(C) bf l and suffering a hostile educational environment, andj if so, what remedial action was appropriate. In addit ion, the Title IX Coordinator 's letter t~(b)(?)(C) which was sent via U.S. mail and e-mail) could have pt1(b)(7)(C) ht further risk because abusive intimate partners often exert control by also reading their victim 's mail and e-mail. This Complaint is filed pursuant to Tit le TXof the Education Amendments of 1972, 20 U.S .C. § 1681 et seq. ("T itle IX"), and the regulations and policies promulgated under the statute. Title IX prohibits discrimina tion on the basis of sex , including gender-based harassment , in federally funded education programs and activities. Gender- based harassment may include acts of verbal, nonverbal , or physical aggression, intimidation, or hostility based on sex, even if tbose acts do not involve conduc t of a sexua l nature. Dating violence often involves gender-based harassment of this type, which raises Title IX concerns. As detailed in the Legal Analysis sec tfon below, Chadron and NSCS violated Title IX by failing to take immediate action to determine wheth (b)(7)(C) afety (and the safety of other students) was at risk because of gender -based harassmen t (b)(?)(C) and, if so, to take prompt and effective steps reasonably calculated to end the harassment, eliminate any hoslile environment, prevent the harassment from recurring, and remedy its effects as appropriate . Even when students decline to pursue a fo1mal Title lX investigation or request confidentiality , colleges must take appropriate steps to ensure that they are pro viding a safe, nondiscriminatory environment for all students, including the victim. Tbese obligation s were triggered by lhe third -party reports ~(b)(?)(C) !teammates and were not extinguished bj(b)(7)(C) !subsequent silence on the su~ject. As detailed in the Remedie s Sought section below, we request that the Office for Civil Rights ("OCR") investigate Chadron and NSCS to determine whether their response to third-party repo11s of dating violence suffered bj(b)(7)(C) !violated Title IX. In addition, we request that OCR undertake a Compliance Rev iew of Chadron and NSCS to determine whether their practices , procedures , and training of staff on recogni zing and responding to gender -based dating violence comply wit11Title IX. We also request that OCR remedy any unlawful conduct and require Chadron, NSCS, and its employees to underg o appropriate training, review , and monitoring. 2 JURISDICTION OCR is respons ible for ensuring compliance with Title IX and receiving information about, investigating, and remed ying vio lations of Title rx and its implementing regulations and guidelines. ' 34 C.F.R. §§ 106.71, 100.7. NSCS and Chadron receive federal financial assistance and are therefore prohibited by Title IX from discriminating on the basis of sex, including gender-based harassment. N e1.the t )(?)(C) agency or mstitution. bas filed t] . 11s I a dmi . . l . .h h nistrativc comp runt wit any ot er REQUEST FOR WAIVER OF 180-DA Y FILING REQUIREMENT (b)(7)(C) Pur suant to§ 107 ofOCR 's Case Processing Manual (''C PM"), lL__________ ____. seek a waiver of the 180-day fil · o . · ment. There are two grounds for granting a waiver in this pursuant to CPM case. First , the true co · (b)(?)(C) (b)(?)(C) and therefor 1(b)(7)(C) § 107(b). Beca , (b)(?)(C) 1erparents are nlin g tms Complaint on her beha lf Second (b)(?)(C) areo s cou not reasona ly have been ex ected to know withi n 180 days o (b)(?)(C) (b)(?) that Chadron and NSCS had discriminated again. (b)(?)(C) violation of Title IX. Pursuant to CPM § I 07(a), they are filing this Complaint within 60 days of discovering the discriminatory acts and omissions. I Complainants, through lheir counsel, first learned of Chadron and NSCS · s potential Title IX liability on October 12, 2015. On that dat e. NSCS's counsel sent Com lainant's counsel a letter and several documents showing that, approximately three months befo (b)(?)(C) (b)(?)(C) several college employees - including the head and assistan (b)(7)(C) O' · · • itle IX Coordina tor-bad received notice tha (b)(?)(C) as being (b)(?)(C) (A copy of the October 12, 2015 lette r and attachments· · . 's letter was a response to a September 28, 201 5 e-mail fron (b)(?)(C) a copy of which is also included). (b)(7)(C) re uested that NSCS provide documentation ot co egc emp loyees' conversations "abou (b)(7)(C) n!(b)(?)(C) that were mentioned in Chadron Polic e repo11she had just reviewed. Before seeing those (b)(7)(C) Com lainant know that an Chadron em lovee sus e (b)(7)(C) (Indee (b)(7)(C) (b)(7)(C) ,~~) (7) r (b)(7)(C) mg y a ron emp oyees, ut d not 0 offer a sufficient basis for filing a Title IX complaint against Chadron or NSCS . The documents provided by NSCS's counsel to Complainants' counsel on October 12, 2015 were another story. Those documents were the first pieces of evide available to Comp lainant s showing that college employees had received reports befo (b)(?)(C) eath that she was bein~(b)(7)(C) Hmic>m ight need, and (b)(7)(C) coaches were available to help. The letter was copied to Coaches (b)(7)(C) NSCS Board Policy 3020 prohibits "sexual violence and sex harassment" and defines those terms t includ (b)(7)(C) 4 Dating violence is violence (violence includes, bur is not limited to sexual orphysical abuse or the threat of such abuse) committed by a person (a) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (b) where the exislence of such a relationship shall be determined based on a consideration of the following factors: (i) the length of the relationship, (ii) the type of relationship, (iii) the frequency of interaction between the persons involved in the relationship. Dating violence can occur when one person purposely hurts or scares someone they are dating. Dating violence can be physical, emotional, and/or sexual abuse. 1n any event (b)(7)(C) L..-=~=~~= ~'T""'.'.'~~ ~"".l A:-n"".l d', :p:ur-.:-i suant to the re0Lo'"" rt'"" m'"" e'""o'"" c'"" o'"" YJ -s-1o _n_ rn.....,. oar ... --:d-;P~o"":' J,.. ic-y~3:-:: 0~2-:::" 0-, ___.. L... ____________ Id. at 3. _..I On November 10, 2014J(b)(?)(C) !responded tcl(b)(7)(C) ~-mail. asking why!(b)(7)(C) !sent the letter and infonnation to her. !{b )(7)(C) !responded that Board Policy 3020 may or may not pe1tain td(b)(?)(C) !but that she was obligated by federa 1 vide Lheinfonnation in response to confidential infom1a1ionher office bad receive (b)(?)(C) id not res ond further an (b)(7)(C) did not reach out t (b)(?)(C) aoain. (b)(7)(C) coaches met with her on (b)(?)(C) o provide more detail on why (b)(?)(C) had reached oul tc!(b)(7)(C) l(b)(7)(C) !listened but did not acknowledge l.:ceptional legal ServiceSince 1873 l(b)(7)(C) Octo ber 12, 20 15 Page 2 I That same morn in lx hara~~rm:r.t , and what the Colh!ges will do if su.:h , 1olen.:e or harassment occurs. A student alleged to have: committed selIIU3h:d to a spouse of the v1cti111 under the domestic or fanuly viokncc laws, or by any other person against an adult or ) uulh v1c11m who is prott!cted from 1h11t person's acts under the dt>mestic01 family violence la\\-s Domestic violence in~ludcs pallcrn, of abusive behavior m relallonshtp~used by one part11er10 gain or mainta,n power and control over ,mother intimate partner. Domc~ticviolence c;m be physical, sexual, emol1onal,l"Conomic, or psychological ac11onsor threats of actions that influence another person. This includes an) behavior that intimidates, manipulates, humiliates isolates, tnghtens 1errori1.es,coerces, threatens, blames, hurts, 1nJurcs,or wounds someone. STUDENT AFFAIR S, NEBRAS KA ST ATE C OLLE GE SYSTE M POLICY : 3020 Sexu al Violence or Sex Ha rass ment Repo r ting, Policies an d Proce dur es Page 2 of 7 Under Neb. Rev. Stat. §28-323, domesric assault occurs when a person. (a) int.mtio11a/(yand knowmg~v causes bodily i11j111y ro his or /rer intimate panner, {b) threatens wr inlimate partner w11hi111mi111mt lwdily pormcr m u menacing manner. lnllmate partner means a spouse: a injury; or, (c) rhreat,ms an 11111matl! former spouse: persons who have a child in common whether 01 not they haw been married or lived togetherat any time: 011dper.fanswho are or were invo/\>edin o dating relationship Sexual Assault: Sexual assault shall mean an offense classilieclas a forcible or non-forcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. Sexual assault is contact or sexual penetration that occurs without the consent of the recipient. Sexual contact means the intentional touching of a person's intimate pans or the intentional touching of a person's clothing covering the immediatearea of the person's intimate parts. Sexual contact also im;Judcs when a person is forced lo touch another person·s intimate parts or the clothing covering the immediate area of the person's intimute parts Sexu.11contact shalI include only such contact which can be reasonably consrruedas being for the purpose of sexual arousal or gratificationof either party Sexual penetration means sexual intercoursein its ordinary meaning, cunnilingus, fellatio, anal intercourse or any intrusion of any part of the person's body or of a manipulated object into the genital or anal openings of another person. Sex Harassment : Sex harassment is unwelcome conduct of a sexm,I nature. Sex harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbalor physicalconduct of a sexual nature. federal law (specifically. Title IX) prohibits student-on-student discrimination, inchiding hostile environment sex harassment and hostile environment gender harassment. (Gender harassment may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-~lereotyping, sexual orientation and/or gender identity, even if those ac1sdo not involve conduct of a sexual nature.) I larassmentdocs to harm, be directed at a specific target, or involve repented incidcms. ( For instance.a~ not have to include an i11r1:nt detailed below, a single instance or unwelcome physical contact of a sexual nature could constitute unlawfulsex or gender harassment.) Sex and/or gender harassmentcreates a hostile environmentfor the student-victimwhen it is so severe, pervasive, or persistent that it interleres with or limits the victim-student's ability to participate in or benefit from the Colleges' services, activities. or opportunitiesbecause of his or her sex or gender. Sex Harassmentincludes Dating Violence, Domesllc Violence, anJ Stalkingas defined in this policy. Sexual Violence: Any intentional act of sexual contact (touching or penetration) that 1s accomplished toward another without his/her consent. Such acts may include, but are not limited to, forced oral sex, forced anal penetration, insertion of foreign objects into the body, and any act of sexual intercourse "against someone's will." This includes, but is not limited to, the use of a weapon, physical violence or restraint, verbal threats, intimidation, and threats of rctalialion or harm. Sexual Violencemcludcs Sexual Assault as defined in this policy. Consent: Positive cooperation in the act or expressing intent to engage in the 11ct.The person nn1stact freely and voluntarily and have knowledgeof the nature of the act or transaction 11 1volvcd. A person who is giving consent cannot be incapacitatedby dnrgs or alcohol, unconscious, passed out, coming in and out of consciousness, under the threat of violence, injury or other forms of coercion. and cannot have a disorder, illness, or clisability that would impair his/her understandingof rhe act or hi~/her ability 10 make decisions. A person who is giving consent cannot be forced,coerced or deceived into providing consent. STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM 3020 POLIC Y: Sexual Violence or Sex Harassment Re porting, Policies and Procedures Page 3 of7 A person may express a l.ick of consent through words or conduct. A person need only resist, either verbally or physically, so as to make the person's refusal to ~onsent genuine and rt:al and so dS lo reasonably make known lo the actor lhc person's refusal to consent. A person need not resist ve.rbally or physically where it would be useless or futile to do so. The presence or absence of consent is based on the totality of circumstances,includingthe context in which an alleged incident occurred. The fact that a student was under the inOuenc~of drugs/alcohol may be considered in detennining whetht!rthat person had consented to th~ act in question. Consent may not be inferred from silence or passivity alone. Stalk ing: Stalking shall mean engaging in a course of conduct directed at a specific person that would cause a reasonable person to; (a) fear for his or her safety or the safety of others; or. (h) suffer substantial emotional distress. Stalking includes a pattern of repeated and unwanted attention, harassment, contact or any other course of conduct directed at a specific person 1hat would cause a reasonable person to feel fear. Stalking may include: repeatedly communicating with, following,threatening, or spreading rumors about a person who docs not want the allention. Student: An individual for whom the College maintains records tind who is currently l!nrolledor regis1eredin an a<:ademicprogram or who has completed the immediately preceding krm and is eligible for re-enrollment. Reporting Reports can be filed by the alleged victim or a third party who is aware of allegations of sexual violence or sex harassment, including other students or College employees. Reports should be filed with one of the designated College adrninis1rntorsanc..1/or cmployets responsible for student services, as follows: • • • • • • • • President Vice Presidents Deans College Title IX Coordinator(contnct informarion1sfisted below) Dean of Students Housing/Residence Lite Staff to include: o Directors o M!}nagers o Assistant Directors o Senior Residence Hall Advisors o Residence Hall Advisors Coaches and Assistam Coaches Campus Security Officers Reports to the above designated administrators or employees will constiture "notice" to the College for the purposes of considering an investigation and institulionalresponse in conJunction with the Title IX Coordinator. College employees (even medical or mental health professionals identified bdow\ are required by law to report any allegations of sexual abuse or assault of a minor to eilher law cnforcemenl or the Depar1mentof Health and Hum1tn Services. STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM POLICY: 3020 Sexual Violence or Sex Hara ssment Reporting, Policies and Procedures Page 4 of7 Exc<'ptionRegarding Employt!e Reporimg: The law recognizes and protects the confidentiality of communications between a person seeking care and a medical or menial health professional.Medical or mcnral health professionals employed by the Colleges (Licensetl Student Counselors and Nurses) respect nnd protect confidential communications from studenrs, faculty, and staff to the extent they arc legally able to do so. Employeesmay have to breach a confidence, however, when they perceivean immediateand serious threat to any person or property. Confidentiality The College appreciates the privacy concerns inherent in allegations of sexual violence or sex harassmeni.To protect students' privacy rights, the names of students or other identifying information. c~pccially th<1twhich is contained in written documents and notes, will only be disclosed 10 third parties if; (a) pr:or written permission is given by the student concerned; (b) the disclosure is necessary to conduct an investigation: (c) the disclosure is necessaryto pursue disciplinary action; or, (d) the disclosure is otherwiserequiredby law Victims will be informed that the College has II legal duty to include informationabout reports of criminal sexual misconduct in annual security report statistics which do not identify either the person claiming 10have been subject ro criminal sexual misconduct or the alleged perpetrator. Ir an alleged victim is under the age of eighteen ( 18) years, the College will obtain const:rll from the parents or guardians prior to beginnir.gnn 111vesllgation or disclosing information,unlessotherwise requiredby law. If the alleged victim requests confidentiality, asks that the report not be pursued, or declines lo participate in an investigationor disciplinary proceeding, the College will document the request. fhe College will take reasonable steps to investigate and respond to reports consistent with such a request, if possible. l{cques!swill be evaluated and weighedagainst the Collegt:' s responsibilityto provide a safo and nondiscriminatory environment. DisciplinaryProcesses and Consequences Processes and procedures described in Board Policies 3100 and 3200 may be used subscquem to a sexual violence or sex harassment investigation to addresl. cases of student misconduct,due process and discipline. If 1he alleged perpetrator is an employee, other Board Policies or Collective Bargaining Agreements will determine the due process steps and disciplinaryconsequences. Disciplinaryconsequences may include, but arc not limited to: warnings. disciplinary probation, loss of privileges, restitution, remedial work assignments, remedial educ11tionalrequirements, service requirements, remedia: beha\.ioral r~quire111 en1s. College housing relocation, College housing suspension, removal from Collc:gehousing, suspension, and expulsion. Law Enforc~mcnt Alleged victims should be advised that physical evidenct can be collected al the same time as medical care is provided, bul that medical evidence for ,1 criminal prosecution cannot be collected withou1a report being made to local law enforcement. It is important that students make an informed decision regarding irnpo11an1physical evidence that can be preserved. STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM POLICY: 3020 SexuaJ Violence or Sex Ha rass ment Rep ortin g, Policies and Pro cedur es Page 5 of7 While students arc not required to notify law enforcement authorities regarding a report of sexual violence or sex harassment, reports still need lO be filed with Campus Security to inform them that an act of violence may have occurred. Campus SecL:rityshall notify the Tith:!IX Coordinator, who is responsible for coordinating the College response to the reports of sexual violence and sex harnssment. Pursuant to federal law, the College has a legal responsibility for documenting and reporting an incidence of sexual violence and sex harassment. Regardless of whether or not the law enforcement authorities choose to prosecute a reported offense, the College can pursue formal disciplinary acrion against a student or employee alleged to have committed sexual violence or sex harassment. Ti1lc IX Coordinators bntcrim Chadro11State Coll~gc IODOMain Street Chadro11 , NE 69337 !(b)(7)(C) (308) 432·6355 (b)(7)(C) eru talc allege PO Box 10 Peru, NE 68421·00 I0 (402) 872-2230 l(b)(7)(C) Wayne State College 1111 North Main Street Wayne, NE 68787 (402) 375.7213 Investigation Procedures Note. While this policy and pror:ed11res are wrillen primarily}or the benefit of s1udents, the same procedures shall also apply in the event either !ht! individual reporting the sexual violence or .1·exharassmen1, or the alleged pe,petrator. is nOf a s111denlS11111lar{1 '. while the procedures assume that 1he mcident occurred on or near College pmperty or at an officiul College Jimc1ia1101· activi1y. some of these procedures may also apply (fan alleged incident occurs olfcamp11s or in a seuing unrelated to Collegefunctiomlactiv/lies I) An initial report may occur by telephone, email, in writing, or in person. When an initial report of sexual violence or sex harassment is received by any designa1edadministrator or employee (lis1ed in this Policy under "Reporting"), th~ inilial report shall be shared wirh the Title IX Coordinator as quickly as possible. 2) The Title IX Coordinator or designee will contact the alleged victim for the following purposes: • • • To ask questions in order lo gain a better understanding regarding 1henalme of the incident; To explain confidentiality and reporting requirements; To explain the investigatory process, law enforcerncmoptions, and possible consequences: STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM 3020 POLICY: • Sexua l Violence or Sex Harassment Reporting , Policies and P r ocedures Page 6 of 7 To provide informationabout resourcesthat arc available to the individual; and, To ask if the alleged victim wishes for rhc report to be pursued through an investigation or nor. (If the alleged victim requests confidentiality,or asks that the report not be pursued, the College will take all reasonable steps to investigate and respond to the report consistent with the request for confidentiality or request nol to pursue an investigation,ifpos~ible. The request will be evaluated and weighed against the College's responsibility to provide a safe and nondiscriminatory environment.) 3) The Title IX Coordinator or designee, after consultationwith the NSCS General Counsel, will determineif an investigationwill be conducted. 4) If an investigation will be conducted, the Title IX Coordinator or dcsigncc will immediately begin an investigation and will cake steps to complete the investigationwithin sixty (60) calendar days after receipt of the report, if possible. The College is commitled to a complete and impartial investigationof reports of sexual violence or sex lwassment, includingthe opportunityfor both parties to present witnessesand other evidence. Investigations will occur as quic;dy as possible, but the complexity of the investigation,the severity and the extent of the har.issment,or number of iiwolvcdparties can impact the duration. The investigation shall consist of: • • • • Reviewing all related written statementsor reports; Interviewing the alleged victim,itllegedperpetratorand other witnesses; Reviewing applicableCollege records; and, Reviewing other relevant materialand evidence. 5) The Title IX Coordinator or designee will provide panies involved in the investigation with periodic updates while an investigation is pending, consistent with Family Educational Rights and Privucy Act (FERPA) restrictions. 6) Al the conclusion of the investigation, the Title IX Coordinator or dcsignee will make ii determination regarding the repon using a "preponderanceof the evidence" standard (more likely than not that sexual violence or harassment occurred) and will provide the recommendation to the Vice President responsible for Student Affairs and the President. 7) Within ten ( 10) worktng days from receipt of the Title IX Coordinator's or designee's rccommendaiion,the Vice President will issue a written statement to the alleged victim, the alleged perpetrator and the Title IX Coordinator regarding the outcome of the investigationand a decision as ro whether or not disciplinary proceedings will commence. In the event that disciplinnry proceedingscommence at the conclusion of the investigation, the College has an obligation to disclose the outcome of the disciplinary proceedingsto the student who repons being the victim ofscxual violence. 8) l f the alleged victim and alleged perpetrator agree with the decision of the Vice President, the matter is considered resolved without any further rights of appeal by either parly. If either the alleged victim or the alleged perpetrator object to the decbion of the Vice President, either individual may appeal the decisionin will review the matter and then issue writing to lhe President within seven (7) calendar days. The Preside111 his/her decision to; (a) affirm the Vice President's decision; (b) refer the matter for fi1nherinvestigation;or, (c) refer 1he malter for disciplinary proceedings. The Presidcnrs decision will be nnal. STUDENT AFFAIRS, NEBRASKA STATE COLLEGE SYSTEM POLICY: 3020 Sexua l Violence or Sex Harassment Reporting , Policies and Procedures Page 7 of 7 Note: rweIX prohibits relaliarionfor reportingparties and any irutlvldualspar1icipatl11g in 011 investigation . The Collegewlil not only lake steps to pre1·e111 retuliotioflbill w/1/alsotake strong responsiveactionif it occurs. Resourcesand Assistance The Title IX Coordinator or Designce will have available contact and referral information for counseling/mental health services, medical services, law enforcement,judicial remedies/restraining orders, and educational resources, and will share re~ource infonnation with virtims and alleged perpetrators. Assistance options including,College no contact orders, changes in academic, living, transportation and working situations may be made available as remedies to protect victims or witnesses. Policy Adopted: Policy Revised: Policy Revised: Policy Revised: PolicyR~visc:d: Policy Revised: PoIicy Revised: Policy·Rcvi5cd: 6/l5/l2 7/29/13 12/10/13 Fffocthc. 711/12 4/25/ 14 Jl n/ 14 l/ 14il5 3/26/15 !:Oectivc: 7/1/!4 l:rf.:ctivc. 7/ I /J .5 81.5 /15 (b)(7)(C) (b)(7)(C) From: Sent : To: ues ilV, November 11, 201/J17.:31 PM !(b)(7)(C) Subject: I RE:Concern H fb) (7)(C) I As I me ntione d, It may or may not pertain to you at this time but due to recent confidential informa tion provided to my office, as the Tit le IX Coordinator , I am obligated under Federal statutes to provide pollcy informat ion and to reach out to stude nts when concerns that may be in vio lation of Polley 3020 are brought to my attention. Again,at Chadron State Co llege, our students' well-being is top priority with us. We want to insure students feel they are in a safe environmen t where they can meet their educational and professional developmental goals. Sin cerely, l(b)(7)(C) T itl e IX Coordinato r - Chadron State College (b)(7)(C) l From: ..._ _____ _. Sent : Monda y. Noyember 10, 2014 7:20 PM I To :!(b)(7)(C) Subjec t: Re: Concern H 1l(b)(7)(C) I'm j ust curious why this Information is being sent to me? I .,--- ---..-·- - -~- - - ·------- Fr om :l(b)(7)(C) ___ ____ ...._ . """.,..,.. sent : Thursctay, November 06, 2014 2:47 PM To: (b)(7)(C) Sub ect: Concern HI l(b)(7)(C) I I would like to introduce myself, I a~ (b)(?)(C) ! the Title IX Coordinator at CSC. flased on some recent informat ion provided to my office, I am sending you the attached documents wh ich may or may not be pertinent to yo u at t his time. Please know, we have a genuine concern for the well-being of all our student!> and want to provide understand of ou r procedure shoL1ldthey be involved in a situation listed in our Board Policy 3020. Pleasecontact me If you wou ld like my assistance at the number listed below. !(b)(7)(C) Title IX Coordin ator Chadro" Jtate College i(b){7)(C) l 4 ?hr' I (b)(7)(C) !(b)(7)(C) From: Sent: Frida , November 14, 20149:47AM To: Subject: (b)(7)(C) Re:l.etterto player (b)(7)(C) Coad ~ and I met with !~~}(?) ~n Wednesday, November 12th , to discuss In further detall on why the lette r was sent to her. Not hing was revealed from her on her end. If anything else happens, or If she decides to come forward, I will let yol1know. Thank you for all you've been doing. l (b)(7)(C) F;-;. --:""l(""'b )""" (7""' )(C""" )--1 ~ ·---·-------~----·-· ·-· Sent: Thursday,November6, 2014 4:30 PM TO!(b)(7)(C) Cc:j (b)(7)(C) l I Subject: Letter to player I sent off a letter to~ tf1lsafternoon under our Title IX obllgatlons. Theletter Is a generalstatement reachingout to lier H she would Ukesomeassistance and I attachedOP 3020. Youwere both sent a copyof the letter. Aryn ·If you could please follow up with me regardingyour discussio n with her, I would appreciate it. Let me know if havequestio ns. (b)(7)(C) rec or o u,n,m R"1ource1 Chadron ltat~ College l(b)(7)(C) I l l r (7)(C) l Frida Oct er 30. 2015 6:15 PM (b)(7) C) Flag to, follow up Flagged II uv I 1, j In c u,,,1 r:,w 11 J Ip' From: Gettler, Rachel Sent: Tuesday, June 30, 2015 12:46 PM To: [REDAC;,4 T~E~ D.1.. J ---------, Subject : R~L'.b_><_5l________ __. Dear [ IU.DACI £:OJ, Thank you for your follow-up email to th e U.S. Department of Education's Office for Civil Rights (OCR) regarding whethe r Tit le IX requires schools to address domestic and dating violence. Each case is fact -specific and each determination is based on the particular set of facts presente d. Although we do not give legal advisory opinions, we do provide information on how the civil right s laws that OCRenforces apply generally. You are correct that sex-based harassmenl must be sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's educational program (i.e., creates a hostile environment) to cause a Title IX violation. As the Department explained in both the Notice of Proposed Rulemaking and the Final Regulations implementing the changes made to the Clery Act by the Violence Against Women Reauthorization Act of 2013, the Clery regulations address only an institution's respons ibilities under the Clery Act, and do not affect or conflict with the requirements under Title IX as interpreted by OCR in its guidance documents. A recipient can comply with both Title IX and the Clery Act. (See, e.g. 79 Fed. Reg. 35445 (June 20, 2014), 79 Fed. Reg. 62772 (October 20, 2014)) It is true that much of the cond uct that constitutes domestic or dating violence as defined in the Clery Act regulations at 34 C.F.R.§ 668.46(a) would raise Titl e IX concerns because of the nature of this type of conduct. Nothing would prevent an institution from app lying its Title IX procedures to all conduct that constitutes domestic or dating violence under the Clery Act. OCR is committed to providing the pub lic with information about the civil rights laws OCRenforces. In responding to correspondence, OCR provides general, publicly available information about a wide variety of civil rights issues in the education context. OCR does not, however , provide legal or other advice or issue advisory opinions to customers concerning specific factual scenarios. Correspondence issued by OCRin response to an inquiry from the public does not constitute a formal statement of OCR policy and should not be construed as creating or articulating new policy. OCR's formal policy statements are approved by a duly authorized OCRofficial and made available to the public. We hope this informat ion is helpful. Sincerely, Rachel Gettler Program Legal Group Office fo r Civil Rights From: [RED/\CTEO) Sent: Thursday, June 11, 2015 5:47 PM To : Gettler, ... R;... a... ch...e_l________ __, Subject: R~'-(b _X_ Sl________ ... Hi Rachel, That is helpful. Allow me to probe a little further, if I may... 1) Minor DV that does not cause an educational deprivation is not covered by Title IX and need not be subject to a Title IXbased resolution, is that correct? 2) DV that is not sexual or sex-based could, under the interpretation you just provided, be subject to a second set of standards different than those addressing Title IX-based DV by most campuses. However, all DV is covered by VAWASection 304, with its Title IX-like protections. VAWA does not make the distinction about sex-based or sexual conduct. Any advice on addressing victi m concerns that some DVis subject to a diffe rent set of procedures than other DV7 Any thoughts about asking college admin istrators to make Solomonic judgments about whether DV is sex-based that many of them are not equipped to make? 3) If Joe is in a relationship, and he chooses Jen as his girlfriend, and he chooses her for that role based on her gender (and othe r qualities), and then he hits her, is that gender-based? Your lett er seems to suggest no, or maybe, but allow me to explore. He did not hit Jen because she was a woma n, he hit her because she was hrs gir lfriend (he does not hit his nonromantic friends or other women), and she is his girlfriend because of her gender. Were she not female, he would not be dating or hitting her. Thus, since the act is directed at his girlfriend, and his relationship is gender-based, why isn't his violence gender-based, at least in part? Isn't much of men's violence toward women inherently gendered, based in power exertion and differentials, on control, and on male superior str ength (he knows she will not hit back, or hit back hard enough)? I feel like your answer, for appropriate reasons, is perhaps more legally-based than rooted in the social constructs and sociology of IPV, but I think the best answer for a college has to take both into account, not just the legal underpinn ings. Again, anyth ing yo u can provide as further guidance or amplification would be most appreciated. Regards, [Rl-DACTEDJ From : 1'Gettler, Rachel" Dat e: Thursday, June 11, 2015 at 2:50 PM To: [REDACT..;E;.;., O""' ) ________ __, 5l_________ Subj ect: RE:!(b '-_l<_ _ Dear I RED/\( TEDJ Thank you for your email to the U.S. Department of Education's Office for Civil Rights (OCR) regard ing whether Title IX requires schools to address domestic and dating violence. Each case is fact-specific and each determination is based on the particular set of facts presented. Although we do not give legal advisory opinions, we do provide information on how the civil rights laws that OCR enforces apply generally. As you are aware, OCR enforces Title IX of the Education Amendments of 1972 and its implementing regulation at 34 C.F.R. Part 106 (Title IX), which require schools receiv ing federal funding to respond promptly and equitably to allegat ions of sex discrimination, including sex-based harassment. Sex-based harassment of students by peers, employees, or third parties violates Title IX if it is sufficiently serious that it interferes with or limits the student's ability to participate in or benefit from the school's educationa l programs or activities (i.e., creates a hostile 2 environment). Sex-based harassment includes sexual harassment and gender-oased harassment. Sexual harassment is unwe lco me condu ct of a sexual nature, such as sexual violence, unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual natu re. Gender -based harassment is unwelcome conduct of a nonsexual nature based on sex or sex stereotyping, including acts of verba l, nonverbal, physical aggression, intimidation, or hostil ity. When a school knows or reasonably should know of possible sexua l or gender-based harassment, it must take immediate and appropria te ste ps to investigate or otherw ise determine what occurred. If an investigati on revea ls that sex-based harassment created a hostile environment, t he school must then take prompt and effective steps reasonably calculated to end the sex-based harassment, elim inate the hostile environment, prevent it s recurrence, and, as appropriate, remedy its effec ts . Because not all behavior s associated w ith domestic or dating violence will be cons idered con duct of a sexual nature (e.g., hitt ing or push ing), determin ing whether such an incident triggers a school's obligations under Title IX requires an in-depth review of the facts at hand . Harassing conduct like domestic or dating violence coul d sti ll be based on sex or gender, even if not sexua l in nature, and therefore may st ill be prohibited by Tit le IX. An educational institution should analyze the specific condu ct associated with an allegati on of domestic or dating vio lence to determine whether it is sexual in nature or is otherwise based on sex or gender, and meets the other requirements for a hostile environ ment under Tit le IX. If so, then Title IX requires the educational institution t o respond appropria t ely. For example, if a male student physica lly assaults his gir lfri end, a female student, because he is jealous that she is ta lking to another male student, and as a result she is afra id to attend the classes she shares with him, his behavio r likely would be prohibited by Tit le IX becau se it is conduct based on sex t hat den ies or limits her ability to benefit from t he schoo l' s educational program. OCR is committed to prov iding th e public with information about the civil rights laws OCR enforces. In respo nding to correspondence, OCR provides general, publicly available info rmation about a wide variety of civil rights issues in the education context. OCR does not, however, provide legal or other advice or issue advisory opini ons to customers concern ing specific factua l scena rios. Correspondence issued by OCR in response to an inqu iry from the publ ic does not co nstitute a formal statement of OCR po licy and should not be construed as creating or articulating new policy. OCR's fo rmal policy statements are approved by a duly author ized OCR officia l and made available to the public. We hope this information is helpful. Sincerely , Rachel Gett ler Program Legal Group Office for Civil Rights From: [REDACTED) Sent: Friday, May 29, 2015 1:09 PM To: Gettler, Rachel Subject: domestic violence confusion I just rccc1vCld th is e'n;:iil. Crn vou pi(•c.1r.·c Jrifv whr>n ,1nd how T1tl~ IX rPqu I e~ rnllPge, and schools to address domer.t1c and daliPt; violPl;< e? I j,;,11k, 111IRLDACTCD; 3 Just wanted tn let yot1 k"ow I pt1, 1na l /\ Cilll to OCR or Tuesday about whr>the, dat,ng/ton oil it~· 111<,tu1lled to <;aytri'lt I ttlP ,X w'iult.i c;nly be trigg .. red in datmg/dlirnestic violence i:<1\1·s1f s1~xu0l vi olence were a r.c•npo11en1 So. no, IX •t I h~ v1olenc.t' WE:'r"pllrPly phv•,ical .1 11d 11011-!>1.:rnal. Unlor tunately th i· informc1l1orw,1c, IJypho·1e. 110L 1n writing. Is th,s "omething you co1,ld c:larify w th OCRin writing on you, end, 1fyou d11nkit would nr. ht•lptul for utrwr-.:,;> If whdL [REDACTED]saicl i~ ;ircuralL', ii rlll!i.lll!:i that DV cases without ,;px1u I vi ole•,cc•don't n•qt111P ,1'i,'(),)r c1I,, ·,d 1(.101 tnVI'~ t.gdttnn (a,, rl thP ~,·hool cou Id r(•Iy t,n police investigat ion s) [REDACTED1 Regards , I.REDACTED] 4