The Law &amp; Education

Elizabeth Conklin on LinkedIn

University of Tennessee

University of Connecticut

Episode 22: Title IX Compliance in a COVID-19 world Mar 19, 2020

Show notes

The country (and the world) is facing an unprecedented crisis with the COVID-19 pandemic, and Title IX coordinators face a particular set of challenges during this time. Betsy Smith, a Senior Investigator, and Consultant at Institutional Compliance Solutions joins us today to talk about ways to remain Title IX compliant as campuses move to distance learning. In this short, informational episode, we cover three aspects of Title IX compliance: support measures, ensuring accountability, and how to handle open investigations and hearings.

Betsy highlights that it is especially important to support students who were being helped pre-COVID-19. They may be going through some trauma and stress, which is why it is necessary to be intentional about reaching out. We then talk about what Title IX coordinators can do to let students know that despite distance learning, they are still a part of the university. Students need to understand that their actions during this time have an impact on them and the community. Finally, Betsy sheds light on how ongoing investigations can still happen virtually. While this may all seem overwhelming, it is also an opportunity for universities to strengthen their online access, and for Title IX coordinators to have a seat at the table. Be sure to tune in today!

Key Points from this Episode:

Find out a few ways that ICS is helping their clients in light of the crisis.
Why students that were being supported require extra care during this time.
How Title IX coordinators can help counselors and assist them in moving digital.
Learn why it is a good idea for Title IX offices to have an online platform.
Other aspects of accountability that Title IX coordinators need to keep in mind.
What Title IX coordinators need to do with an ongoing investigation: Don't stop!
The importance of transparency and constant communication during the crisis.
Making lemons from lemonade: Betsy sheds light on some of the positives.

Tweetables:

"I don't think that there's any reason for these investigations to stop for a long period of time." — Betsy Smith [0:12:58]

"You can absolutely continue with hearings. You don't want this backlog." — Betsy Smith [0:15:23]

"This will be a really good trial by fire for lack of a better word in coming up with new and novel ways to approach investigations virtually. But just a reminder from us: Perfection is not the requirement, and as long as you're trying and putting forth a good faith effort in trying to meet student needs and faculty and staff needs, that's all you can do. " — @ICSLawyer [0:19:13]

Links Mentioned in Today's Episode:

Betsy Smith on LinkedIn

Courtney Bullard's email

Episode 21: Filling the Title IX and Clery Gap in Schools and Universities with Jody Shipper, Part 2 Mar 05, 2020

Show notes

This episode continues Courtney's deep dive with Jody Shipper into the complexities that typically arise concerning Title IX, Clery, and VAWA investigations in colleges and universities. Jody is a nationally recognized subject matter expert with more than 20 years' experience in policies aimed at addressing sexual misconduct on campuses; it has been a privilege to hear her thoughts in this extended conversation. In our discussion today, we continue on the topic of the overlap between Clery and Title IX, particularly around VAWA cases. For example, dating violence, domestic violence, stalking, and sexual assault all fall under Clery and VAWA, but not Title IX. They have been adopted within Title IX procedures nevertheless though, which both suggest the necessity for collaboration between fields but also produce grey areas.

This segues into a discussion about the pitfalls of siloing, where we stress the idea that Clery, threat assessment, and Title IX teams should all be working together in a closer way than what meets the bare minimum defined as 'compliance.' Indeed, many cases that meet compliance are in fact failed cases, and Jody gives an example of how collaboration saved a woman from being murdered by her boyfriend. Our conversation turns to stalking and relationship violence, and we discuss the necessity for professionals to be highly trained and therefore equipped to discern between 'benign' and severe cases, and how sending out warnings inappropriately can actually escalate violence. Jody shares many more insights into cautions and best practices on today's topic so be sure to tune in for it.

Key Points From This Episode:

Cross-sections between Title IX, Clery and VAWA cases and procedures.
Procedural requirements for VAWA cases: notifying parties simultaneously, etc.
What constitutes a VAWA breach: Clery crimes, sexual assault, stalking, and more.
The value of Title IX and Clery collaboration before releasing timely warnings.
Why a Title IX investigator should review the language in a timely warning.
How timely warnings can backlash by victim shaming, leading to reluctancy to report.
Tendencies for campus safety to have less of an EQ around sensitive cases and language.
Necessities around being able to give an educated response to emotive queries.
Tendencies for people in higher ed to get silo-ed and how VAWA is handled on campus.
Importance of campus safety, Title IX, and threat assessment teams to collaborate.
The line between severe and easily resolvable VAWA cases and what constitutes Title IX.
How sending notice can lead to more violence if done at inappropriate moments.
Severe complexities in dealing with escalated stalking and relationship violence cases.
The need to have an educated person gauge severe vs 'benign' relationship violence cases.
An example of how un-silo-ed teams saved a VAWA case from becoming a murder.
How silo-ed teams can be compliant but failing at the same time.

Tweetables:

"We get so silo-ed in higher ed." — @JodyShipper [0:12:19]

"How do we know that sending notice isn't going to be the precipitating factor to much more severe violence?" — @JodyShipper [0:18:08]

"Consult, consult, consult." — @JodyShipper [0:25:33]

Links Mentioned in Today's Episode:

Jody Shipper on LinkedIn

Grand River Solutions

ICS Lawyer

Jodie Shipper on LinkedIn

Episode 20: Filling the Title IX and Clery Gap in Schools and Universities with Jodie Shipper, Part 1 Feb 27, 2020

Show notes

Title IX and Clery procedures are complex and ambiguous for all parties involved, but the importance of maintaining an institutional culture that upholds these laws cannot be overstated. Following Clery legislation should not stop at mere compliance either. In this episode, Courtney talks with Jody Shipper, a nationally recognized subject-matter expert in Title IX and related fields, about her approach in working with universities and colleges in Title IX compliance.

They talk about the intersection of Clery and Title IX, and common Clery mistakes Jody sees in the work she does with clients. Jody talks about the complexities around filing timely reports, typical daily and yearly duties of logging data, and ways schools can get better at their Annual Service Reports. Jody sets the benchmark where it should be as far as Title IX and Clery procedures, so make sure you learn all you can from her in this episode.

Key Points From This Episode:

Why Jody studied employment law: her interest in the prevalence of restaurant harassment.
A merging of Jody's investigations and trauma work that occurred at her university job.
Grand River Solutions' services: filling Clery and Title IX-related gaps at universities.
The overarching mission at GRS: optimizing ASRs at schools and building safer communities.
How merely obeying compliance as an institution is a bare minimum to be exceeded.
The tendency to overlook Clery while setting up Title IX offices on campuses.
Clery driven data capturing processes: daily incident logs, and annual security reports.
Understanding timely warnings and when to issue them.
Confusion around timely warnings.
The fine line between victim blaming and giving due warning in releasing timely reports.
ASR errors: starting late, leaving out information, being overburdened, not publishing them.
Ways to get around aborted ASRs: committees, backup plans, and checklists.
Ignorance of definitions of school jurisdiction and the challenge it poses to Clery.
Another Clery error: misclassifying a crime, especially around referrals.

Tweetables:

"People bandy around this phrase, 'A culture of compliance.' That's a nice way to put it, that we have an institution where everyone will comply with all the rules. I always think of it as a baseline. Of course you have to do that piece, but can we do better?" — @JodyShipper [0:15:51]

"I think it's really important to make clear somewhere in that timely warning that no one is responsible for being the victim of a crime. You didn't choose to be the victim of that crime." — @JodyShipper [0:28:54]

"Once you've pulled your ASR together you're not done. You need to publish it. You need to send it out to people in your community and you also need to submit it to the department of education." — @JodyShipper [0:28:54]

Links Mentioned in Today's Episode:

Grand River Solutions

Jeanne Clery

ICS Lawyer

Hot Topics in Title IX Conference

Fierberg National Law Group

Episode 19: Doug Fierberg, attorney for the Gruver family against LSU, on Fraternity and Campus Hazing, Sexual Assault, and Title IX Violations by Schools Feb 13, 2020

Show notes

Courtney talks with Doug Fierberg whose legal team at the Fierberg National Law Group focuses on and is dedicated to representing families, survivors and others in lawsuits and other legal proceedings nationwide involving fraternity hazing, sexual assault, Title IX violations, gun violence, serious personal injury, wrongful death and other misconduct in schools. Most notably in recent Title IX litigation, Doug's team represents Max Gruver's family in a wrongful death case against LSU using a novel approach to the deliberate indifference theory.

In this episode, you will also hear about their criteria for deciding to represent someone, the difference between proving negligence and deliberate indifference on the part of a school, how lawyers and courts can effectuate social and institutional change and his view of the striking safety discrepancies between fraternities and sororities. Title IX professionals and lawyers in this area will want to tune in to this episode!

Key Points From This Episode:

The evolution of Fierberg National Law Group and its expanding team.
Doug's passion for representing young people who suffer a personal injury or wrongful death.
His experience representing the families of victims of the well-known Virginia Tech shooting.
Knowing that he wanted to be a trial attorney when graduating from law school.
Criteria for accepting a case and the two main factors that are considered.
Thoughts on Title IX cases and the requirements for a case against a school to be viable.
Distinguishing between negligence and deliberate indifference on the part of the school.
Considering how the deliberate indifference of the institution contributed to the incident.
Financial compensation versus creating institutional change.
An example of how lawyers have been able to use the justice system for social change.
His view that fraternities are significantly more dangerous to members than sororities.
What his team learned about LSU's approach to hazing in the case of Max Gruver.
Using litigation to force LSU and other universities to take hazing issues seriously.
The common "boys will be boys" response to allegations of sexual misconduct and hazing.
One of Doug's biggest losses based on an unjust trial court.
Doug's primary function in the context of the tragic cases he deals with.

Tweetables:

"We're very particular in terms of what we take. We do not have the firepower to take anything that just walks into the door anymore. We are looking for cases that will have an impact on the law and a serious impact for our clients." — @tfnlgroup [0:13:35]

"That's a far higher standard than negligence, which is essentially making a mistake. This means that the school had to have some knowledge of what was going on, and the consequences of acting or not acting, and then be deliberately indifferent to those circumstances." — @tfnlgroup [0:16:43]

"It's positive that the law and remedies are continuing to develop for young people so that schools are headed towards becoming safer and less fraught with sexual harassment and violence." — @tfnlgroup [0:25:11]

Links Mentioned in Today's Episode:

Doug Fierberg

Fierberg National Law Group on Twitter

Hot Topics in Title IX Conference

Louisiana State University

Rolling Stone

Virginia Tech Shooting

Episode 18: Kink and LGBTQI+ Culture in the Title IX Space with Stephanie Lott: Part 2 Feb 06, 2020

Show notes

In this episode, Courtney continues her conversation with Stephanie Lott, Title IX Coordinator at Arkansas State University. The full discussion with Stephanie covers campus accessibility, pronoun use, and her journey in Title IX with regard to LGTBQI+ and kink culture. In this second part of our discussion, Stephanie gets into some of the challenges investigators, witnesses, complainants, and respondents tend to face in Title IX investigations of cases involving kink or LGTBQI+ communities. For example, identity questions in hookup culture make for complex experiences, which makes the 'truth' of a case incredibly nuanced.

Knowing how to ask the right questions so that trust can be built is an essential part of the investigative process. We also speak about the importance of using and soliciting proper pronouns, and Stephanie shares some pointers about how to go about doing so. Stephanie talks about a few of the strategies that are going down on her campus to make it a more inclusive space in this episode too. Our guest has a unique way of explaining things that a lot of folks will benefit from so make sure you catch round two of this helpful conversation.

Key Points From This Episode:

Special considerations in Title IX cases involving LGTBQI+ and kink community members.
Vulnerabilities that people still arriving at their sexual identity face in hookup culture.
Struggles investigators face: taboos, identity questions, and building trust with a complainant.
Advice for investigators: become more versed on the topic by consulting third party sources.
How to ask inoffensive questions to members of a kink or LGTBQI+ community.
The value of asking tough questions from a place of good intentions, not personal interest.
Why people should respect pronouns: for the same reason they remember names.
The idea that pronouns can change so it is a good idea to re-ask what they are.
How to ask for another person's pronouns: offer your own first.
Preparing to explain what pronouns are about to people who aren't aware of them.
New forms of pronouns such as they or ze, and who they might apply to.
Getting past awkwardness around asking about pronouns to build more trust.
Strategies for a more inclusive campus such as Theatre Intimacy Education performances.
What makes up the world of e-sports: games, devices, and competitive playing.
The new e-sports program happening at Arkansas State which Stephanie heads up.
Things Stephanie would do if not in Title IX: law school, and behavioral analysis.

Tweetables:

"With any unknown topic that you're talking about with somebody else, like a complainant, respondent, or witness, make sure that your questions are not based on curiosity." — Stephanie Lott [0:14:27]

"I teeter back and forth on my own pronouns." — Stephanie Lott [0:16:07]

Links Mentioned in Today's Episode:

Stephanie Lott

Hot Topics in Title IX Compliance Conference

Theatre Intimacy Education

Speak Out

Episode 17: Kink and LGBTQI+ Culture in the Title IX Space with Stephanie Lott: Part 1 Jan 30, 2020

Show notes

Deconstructing our biases around niched behaviors and sexualities has been important for a long time now, and this urgency is no less great in the context of Title IX law and investigations. This is the first of a two-part episode where I talk to Stephanie Lott, Title IX Coordinator at Arkansas State University. Our conversation focusses on understanding kink and LGBTQI+ culture, and how investigators can be better prepared for Title IX cases involving people from these groups. There are many grey areas that can arise in cases covering situations that have turned from consensual to non-consensual in the LGBTQI+ and kink circles.

Stephanie stresses the importance of investigators who can build a good rapport and also the importance of Title IX professionals educating themselves about these communities. We also cover the steps Stephanie and her team have taken toward Arkansas State becoming a campus that is more diverse and accessible to all, and she brings up some amazing seminars and theatre-based education initiatives working toward that end. Stephanie shares a wealth of important information whose relevance reaches far outside of the Title IX space in this brilliant conversation, so make sure you don't miss out on it.

Key Points From This Episode:

Stephanie's process working in student conduct and Title IX at Arkansas State.
Lessons learned about campus culture and investigations working in student conduct.
Stephanie's team structure and the number of students at Arkansas State.
Benefits of having a floater with a good rapport on Stephanie's team.
A definition of kink culture referring to behavior involving deviance.
Challenges presented in kink-related Title IX cases involving shame and ignorance.
A daunting Title IX case example: a rape role-play which turned un-consensual.
The helpfulness of safe words in signaling actual feelings in kink environments.
Tendencies in kink culture to challenge social norms that may bring out investigator biases.
Tips for investigators to educate themselves about kink and build rapport with complainants or respondents.
What LGBTQI+ means and how the culture can become an 'alphabet soup.'
The multiple meanings of queer and gay pertaining to who uses the term.
Educational conferences Stephanie works on which offer basics of LGBTQI+ terminology.
Special considerations in a Title IX case involving an LGBTQI+ community member.

Tweetables:

"There are people who consensually at some point will sign up to do a role-play of a rape scene with a partner or an NSA hookup and how does that manifest itself into a Title IX investigation?" — Stephanie Lott [0:16:48]

"Contrary to most folks' stigma, gay people don't know every other gay person and we don't know everything about our own communities sometimes." — Stephanie Lott [0:28:30]

Links Mentioned in Today's Episode:

Stephanie Lott

Hot Topics in Title IX Compliance Conference

Theatre Intimacy Education

Speak Out

Episode 16: Tracking Trends, Athletics, and Title IX Compliance for School Districts with Betsy Smith Jan 16, 2020

Show notes

In this episode, Courtney has a conversation with Betsy Smith, a senior investigator, and consultant at Institutional Compliance Solutions. Betsy brings another unique perspective to their team, having previously served as a district attorney and deputy Title IX coordinator for the University of Tennessee.

Betsy shares about tracking trends and data to prevent incidents of sexual misconduct; how her experiences as a student-athlete shape her work today; suggestions on training student-athletes, coaches and staff; and the work coming out of ICS going forward in the K–12 space. If you are a Title IX coordinator in K–12 or higher education, be sure to join us for this insightful interview!

Key Points From This Episode:

An overview of Betsy's career background and her prior role at the University of Tennessee.
The prevalence of incidences on campus and the kind of cases she worked on.
How Betsy became interested in tracking data and what that entails.
The impact that tracking data has on prevention and response on campus.
Considering general things like where and when assaults are happening.
Advice about capturing data and presenting findings in the most aesthetically pleasing way.
Deciding on the next steps once your data is compiled and well-presented.
Considering which parties need to be notified about incidents and general findings.
What Betsy has learned about policies and compliance in her new role at ICS.
Ensuring that policies are accessible and student-centric.
Betsy's passion for student-athletes and her own journey in this position.
Being mindful of the different needs and schedules of student-athletes.
Suggestions for Title IX coordinators who need to investigate athletics departments and staff.
The lack of Title IX coordination and training on K–12 campuses and how the problem can be rectified.
Advice for Title IX coordinators on K–12 campuses: using a checklist for structure and consistency.

Tweetables:

"What I learned is that tracking data is the absolute driving force for prevention and response on campus." — Betsy Smith [0:12:04]

"There are so many different ways to do the same thing. I don't think that I had any idea how many different ways you could write a policy that could still be compliant." — Betsy Smith [0:17:33]

Links Mentioned in Today's Episode:

Betsy Smith on LinkedIn

Hot Topics in Title IX Conference