Drafting the Perfect Resolution Agreement

By: CLC Staff
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Every school needs their students to feel safe, and the OCR exists to address that need. Sometimes, however, working with the OCR can be complicated. Campus administrators have a wide-range of responsibilities that go above and beyond those addressed by OCR guidance, and must balance the advice given by the OCR with other laws and regulations that the OCR does not enforce.

A harassment and violence-free campus is the goal both for schools and the OCR; to achieve this goal, campus administrators must work closely with the OCR to implement winning Title IX strategies that are tailored for their particular institution. By bringing together OCR expertise with your knowledge of your students and campus environment, we can put the best possible measures into place.

Policies & Procedures

The “Resolution Agreement” that follows an OCR investigation is an opportunity to put your campus knowledge to use. There is a long list of provisions in every resolution agreement, and while most of them are inflexible, there are some that leave room for interpretation, offering a chance to develop a strategy that works best for your school.

The Title IX policies that are mandated in a resolution agreement are usually quite consistent and non-negotiable, but the ways in which these policies are put in place can change, depending on the unique needs of your institution. For example, an accurate description of how parties should file complaints is a non-negotiable point of the agreement, but the specific number and positions of the staff members who are to investigate those complaints is up to the school.

As long as the procedures detailed by the OCR are put into place, institutions should have the flexibility to organize their staff in the most effective way possible. Consider starting with a template for your Title IX policies, satisfying the non-negotiable tenets of the agreement, and filling it out from there.

Remember that, as a campus administrator, you must balance this OCR guidance with external factors. Some new provisions in the agreement might take time to implement, and shouldn’t be rushed – many schools have procedures that must be followed when introducing new policies. Another critical factor is the pre-existing sexual misconduct legislature, whether federal or state, that may conflict with parts of the OCR agreement; make sure a legal expert is part of your team during this process.

Making Sense of Title IX Compliance

Due Process

OCR resolution agreements will include a great deal of information about responses to claims of sexual misconduct, and how to provide a safe environment and fair process for complainants. It is equally crucial for campus administrators to ensure that the parties accused of sexual misconduct are afforded due process during the investigation. A few things to consider:

  • Notice: Several court cases have enforced the requirement for accused students to receive a certain amount of time and information before their hearing, so they may have a legitimate opportunity to defend themselves. One case determined anything less than 24 hours’ notice of the date and nature of an upcoming hearing was insufficient. If you want to avoid due process violations at your school, make sure accused students have the necessary resources for a fair defense.
  • Right to Counsel: Accused students should be afforded the right to legal counsel as part of the investigation, even if that counsel cannot actively participate in the hearing. The opportunity to consult someone with detailed knowledge of the policies in play is important for all parties involved.

While OCR guidance is concerned with the students and staff at a school, campus administrators must keep law enforcement in mind when drafting a resolution agreement. Measures that the OCR introduces successfully at some schools might not be legally possible at others.

One example is the role of the Title IX coordinator who, according to the OCR, should receive access to “school law enforcement unit investigation notes and findings” pertaining to a Title IX investigation. In some areas, this access is prohibited by state law, so some alternate provisions must be crafted. Establishing positive relationships with your local law enforcement can benefit both parties; if they know more about your school’s policies and resources, they are better equipped to handle sexual misconduct incidents on and around campus.

Drafting a successful resolution agreement requires a marriage of OCR guidance with your campus expertise; doing so should result in a document that will be a fantastic Title IX resource for your school.

Have you contributed to a Resolution Agreement? Do you have any suggestions or resources to add? Share in the comments below.

Source:
France, Lucy T. “I Fought Authority and Authority Always Wins – Strategies for Pushing Back on OCR”. University of Montana, 22-23 January 2016. Web.

Posted in Title IX

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