Below is a breakdown of all of the key changes and new federal definitions.
Complainant: An individual who is alleged to be the victim of conduct that could constitute sexual harassment. A complainant must be participating or attempting to participate in an education program or activity at Luther College.
Respondent: An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. A respondent must be enrolled or employed by Luther at time of the complaint.
Formal Complaint: A signed document filed by a complainant or Title IX Coordinator alleging sexual harassment and requesting that Luther investigate the allegation(s).
Advisor: A person chosen by a complainant or a respondent to conduct live cross-examination. The advisor may be appointed by the College for any party who does not have an Advisor at the hearing. (In the past, peers, parents, mentors, or attorneys have served as advisors during Luther hearings.)
Department of Education Summary of Changes (PDF)
*denotes new for Luther as defined by the Final Rule
†denotes discretion for Luther as defined by the Final Rule
- Requires expanded accessibility to report incidents of sexual harassment to the College’s Title IX Coordinator
- Requires a Complainant driven process on how Luther will respond to reports of sexual harassment, allows discretion of the Complainant when/if to involve law enforcement
- Defines sexual harassment as quid pro quo, unwelcome conduct that is severe, pervasive and objectively offensive, sexual assault, dating violence, domestic violence, and stalking
- Includes anti-retaliation provision to protect parties involved
- *Narrows the jurisdiction of “educational program or activity” to include “locations, events or circumstances over which Luther College exercised substantial control over both the respondent and the context in which the harassment occurs.” It also declares that this jurisdiction applies only to person(s) in the United States. Luther will continue to handle complaints of sexual harassment that occur, for example, on a study abroad program through the student conduct process.
- *Requires mandatory and allows discretionary dismissals from Title IX that do not meet the criteria or jurisdiction of Title IX, but does not limit the College's authority to address a Complaint with an appropriate process and remedies (such as a referral to Student Conduct)
- Incidents, where violations occurred prior to August 14, will process with the old Policy but new process
- *Requires parties to be given at least 10 days to review and respond to evidence collected in the investigation and submit a written response to be considered prior to the final investigation report
- Provides a rape shield for Complainants as well as protection from any other privileged records such as medical or psychological treatment records
- Provides a grievance process emphasizing fundamental fairness using live hearings for cases under Title IX for both students and *employees
- †Student Hearing Board Members will not hear cases where the respondent is an employee
- Requires a notice of investigation and allegations, the right to an advisor, *right to submit and cross-examination by an advisor, and challenge evidence at a hearing
- *The Chair in the hearing will limit/disallow questions on the basis that they are irrelevant, unduly repetitious or abusive
- †The Chair will require the advisor to sit during cross-examination and will monitor tone
- †Requires Luther College to select their own burden of proof. Luther College has selected the preponderance of evidence standard “more likely than not” for Title IX cases involving students and *employees
- †Allows Luther College to offer informal resolution options if both parties give “voluntary, informed, and written consent” only after a signed Formal Complaint
- *Cannot apply when the respondent is an employee
- Luther will offer shuttle negotiations and restorative justice
- Requires Luther to provide supportive measures to both parties and to ensure access to educational programs or activities (offered before or after filing a Complaint or where no Complaint is filed)
- Individualized services that are non-disciplinary and without cost
- †Advances expectations regarding unethical relationships requiring all employees to disclose consensual relationships to Human Resources
- †*Luther determines whether to adopt, maintain or change the former “mandatory reporting”
- †Luther Employees are obligated to make a ‘Required Referral’
- †May be able to not reveal personal identifiable information of parties but must consult with Title IX Coordinator to ensure individual and community safety
- †Employee is expected to share supportive measures and process information with party (Complainant Packet)
- †Does not include: classroom writing assignments, anonymous social media posts, climate surveys or events such as “Take Back the Night”
- Officials with Authority will still be required to report to the Title IX Coordinator