February 1, 2022 email to all reci Dianne Byrum Chair, Board of Trustees 1501 North Shore Drive, Suite B East Lansing, MI 48823 Nicole Schmidtke Title IX Coordinator Osun 2 STONNOR ‘Maureen P. Holland 1650 Market Stee, Suite 2800 Philadelphia, PA 19103 Direct Phone 215-665-5548 [email protected] President Samuel L. Stanley, Jr University President 426 Auditorium Road, Room 450 East Lansing, Ml 48824 Brian T. Quinn, Esq. ice President for Legal Affairs and 4 Olds Hall General Counsel, East Lansing, Ml 48824 426 Auditorium Road, Room 494 ae East Lansing, MI 48824 Re: Third-Party Review of Michigan State University’s Title IX Grievance Process, Completed Investigations, and Final Determinations Pursuant to the Resolution Agreement with the Office for Civil Rights (OCR Docket #15-18-6901) Dear Chair Byrum, President Stanley, Ms. Schmidtke, and Mr. Quinn: As you know, Michigan State University appointed Cozen O'Connor to review the University’s completed Title IX investigations and final determinations to provide an independent assessment of whether the University’s policies have been adhered to and whether those policies are compliant with governing legal standards. This letter and the accompanying appendices constitute the results of our review of the University’s Title [X-related policies and procedures and the nineteen Title IX- related cases resolved through formal resolution during the Fall 2021 semester. L Overview ‘This sets forth our observations about adherence to University policies in nineteen individual cases and an assessment of current policies, procedures and practices as observed through the lens of those cases. In evaluating implementation, we considered the structure of the institutional response, internal operating protocols for coordination of information and personnel, intake and investigative processes, the adjudication and appeals processes. As detailed in our previous reports, a complex framework of law and regulatory guidance requires higher education institutions to effectively prevent, respond to, investigate, evaluate, and adjudicate reports of sexual and gender-based harassment and violence, dating violence, domestic violence and (One bey Place 1850 Mork Sree! Suite 2800 Philadephia, PA 19103 215.665.2000 800.523.2900 215665:2013 Fax _cazen comPage 2 stalking, and provide resources and remedies to impacted individuals. Higher education institutions must have current, comprehensive, and coordinated policies and procedures that integrate the regulatory framework, the dynamics of sexwal and gender-based harassment and violence, and the unique context of each educational institution. Over the past decade, legal developments have significantly expanded, and in some instances, curtailed institutional responsibilities in this area. The nature of those responsibilities continues to evolve based on legislation, federal and state law and regulation, and jurisprudence from the civil courts. On August 14, 2020, new final Title IX regulations took effect. Those final regulations significantly altered how educational institutions are required to respond to allegations of sexual and gender: based harassment. For example, the final regulations define sexual harassment for purposes of Title 1X as including sexual assault, dating violence, domestic violence, stalking, quid pro quo sexual harassment committed by an employee, and “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity.”' This is both an expansion ofthe prior sexual harassment definition — in that it includes the VAWA crimes — and a narrowing of the traditional hostile environment elements. Like many institutions of higher education, Michigan State University’s Relationship Violence and Sexwal Misconduct (“RVSM") Policy traditionally defined sexual harassment as conduct that is “so severe, persistent, or pervasive that a reasonable person would find that it... unreasonably interferes with an individual's work or performance in a course, program, or activity, thus creating a hostile or abusive working or educational environment."? The narrower definition in the final regulations restricts the scope of conduct that constitutes potential hostile environment sexual harassment under Title IX. As another example, under the final regulations, when a school is on notice of sexual harassment in its education program or activity against a person in the United States, the school’s Title 1X Coordinator must: 1) promptly contact the Claimant to discuss the availability of supportive measures, 2) consider the Claimant's wishes with respect to supportive measures, 3) inform the Claimant of the availability of supportive measures with or without the filing of a formal complaint, and 4) explain to the Claimant the process for filing a formal complaint.‘ Like almost all schools, Michigan State University has updated its procedures and workflows to accommodate the requirement of a formal written complaint and continues to provide supportive measures to Claimants whether or not they file a formal complaint. ‘Asa third example, the final regulations require that, following the receipt of a formal complaint, the institution must evaluate whether the report meets the jurisdictional requirements of the regulations. ‘The institution must dismiss the formal complaint if 1) the conduct would not constitute sexual harassmentas defined by the final regulations, even if proved; 2) the conduct did not occur within the recipient's education program or activity; or 3) the conduct did not occur against a person in the 134 CER § 106.30(a). Emphasis added ® Appendix C, p. 11, Emphasis added, 334 CR. § 106:30(a). Supportive measures are defined as non-disciplinary, non-punitive individualized services offered as appropriate and as reasonably available and without fee or charge to the Claimant or Respondent before or after the filing of a formal complaint or where no formal complaint has been filed. ‘Supportive measures are designed to restore or preserve equal access to the recipient's education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient's educational environment, or deter sexual harassment, 134. CER. § 106.44(0)Page 3 United States. To comply with the final regulations, the University has added jurisdictional thresholds and dismissal procedures into its updated RVSM and Title IX Policy. The University has also preserved its ability to address non-Title IX conduct by separately defining "Sexual Harassment" and “Title IX Sexual Harassment in the versions of the RVSM and Title IX Policy issued after August 14, 2020.° Finally, as noted above, under the final regulations, if a formal complaint meets the jurisdictional requirements, the institution must initiate a grievance process that complies with the final regulations. For institutions of higher education, that grievance process must include a live hearing with cross-examination conducted by the parties’ advisors.’ If a party does not have an advisor present at the live hearing, the school must provide one without fee or charge to that party.# While Michigan State University has offered the parties the opportunity to request hearing in certain cases since 2018, the hearing requirement in the final regulations is not optional. Required live hearings in every case will necessitate ongoing training and potentially require additional resources to fulfill the need for University-provided advisors and decision-makers On July 28, 2021, a Federal District Court ruling vacated a part of the regulations which prohibited recipients from considering statements from individuals who were not subjected to cross- examination at a hearing. Subsequently, the U. S. Department of Education's Office for Civil Rights COCR’), issued a Letter to Students, Educators, and other Stakeholders on August 24, 2021, stating its intention to immediately cease enforcement of that part, stating that postsecondary institutions are no longer subject to this portion of the provision.!! The RVSM and Title IX Policy was updated as of August 24, 2021, to reflect the recent vacating of part of the regulations requiring the prohibition against consideration of statements not subject to cross-examination. Additionally, on December 9, 2021, Michigan State University amended its Hearing Procedures to state that parties and witnesses may choose to answer some, all, or none of the questions posed to them during the hearing and to specify that no inferences or assumptions will be drawn from a party's decision not to submit to cross-examination.!2 ‘The analysis, discussion, observations and recommendations we make in this report and in our individual case reviews are based on our familiarity with the law and guidance, understanding of effective institutional practices, and our decades-long experience with the dynamics of trauma and sexual and gender-based harassmentand violence, dating violence, domestic violence and stalking, We 534. CER.§ 106.45(b)(3). © Appendix A, pp.4-5. Compare text under IILA ("Sexual Harassment’) with text in the gray box "Title IX Sexual Harassment’), Also see Appendix B, pp. 45. 734. CER.§ 106.45(b)(6)(0- oud 9 In Doe v. Baum, 903 F.3d 575 (6th Cir.2018), the Courtheld that, in cases involving suspension or expulsion and when credibility is at issue, “the Due Process Clause mandates that a university provide accused students a hearing with the opportunity to conduct cross-examination.” Under Baum, ifa public university has to choose between competing narratives to resolve a case, the university rmust give the accused student or his agent an ‘opportunity to cross-examine the accuser and adverse witnesses in the presence ofa neutral fact-finder: Victim Rights Law Center et av. Cardona, No, 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021) 1 Lotter to Students, Educators, and other Stakeholders re Victim Rights Law Center et a. v. Cardona (August 24,2021), 12 Compare the prior Procedures in Appendix I, p. 6" the current Procedures in Appendix H, p.5. with, lure to Appear or Submit to Cross-ExaminatioiPage 4 approach this review through the lens and depth of our unique skill set and background, which is focused ona holistic understanding ofthe context, rather than a narrow civil litigation focus. Our bona fide commitment to these issues as former prosecutors, investigators, and legal advisors is demonstrated through our professional histories, board service, pro bono work, and community recognition, We have extensive experience working with colleges and universities across the country in assessing and improving campus responses, developing policies and procedures, and providing ‘education and training programs. Moreover, we have served as University Title IX Coordinators and. Deputy Coordinators and have assisted institutions with implementation as external partners. We have also worked closely with educational institutions in the context of Title IX or Clery Act regulatory enforcement actions. We note that the University has dedicated significant resources to the effective implementation of Title IX and related compliance areas. In our last report, we made note of the updates the University zmacle to its child abuse reporting protocols, and the University’s five-year strategic plan to prevent and address sexual harassment and sexual assault. It bears repeating in this report that these are significant steps toward creating a safer University community and fostering an environment free from discrimination, harassment, and harm, The University has also focused on updating policiesand procedures. The RVSM and Title IX Policy was updated as of August 24, 2021," to reflect the removal of the regulatory prohibition against consideration of statements not subject to cross-examination. Subsequently, tie accompanying Hearing Procedures were updated on December 9, 2021. In this, Fall 2021review, we note that the Office of Institutional Equity ("OIE") has made significant progress in transitioning investigative work from outside law firms to internal investigators, and in enhancing protocols related to intake and the provision of supportive measures, We note again the impact of these changes in this current review, as we did in our last report. I Scope of Review A. Policies and Procedures As in our past reports, we begin with our review of the University’s written policies and procedures and analyze whether, as written, those policies are compliant with governing legal standards. As noted in our last two reports, in August 2020, the University issued a new RVSM and Title IX Policy toalign with the requirements of the 2020 Title IX regulations.” Since that time, the University updated the policy to remove the requirement that a Resolution Officer not consider any statement of a party or witness who was not subjected to cross-examination at a hearing" As discussed above, this update was made following the August 24, 2021, decision by OCR. The University has also issued mpanying Hearing Procedures, updated just last month on December 9, 2021.19 The Complaint 1 Appendix S (community email 1 Appendix ¥ (released April 2021), Appendix T (updated reporting protocol), Appendix V (updated FAQ). 5 Appendix A. 16 Appendix H Appendix B. ™ Appendix A, © Appendix HPage 5 Dismissal Procedures?” and Appeal Procedures related to the RVSM and Title IX Policy were updated prior to our last review. The University’s current Title X-related policy and procedural framework now consists of the above policies and procedures as well as the Anti-Discrimination Policy ("ADP"), the ADP User's Manuial2* the Anti-Discrimination Policy Appeal Procedures,” the University Reporting Protocols related to Relationship Violence, Sexual Misconduct and Stalking? and the University’s updated Reporting Protocols and FAQs related to child abuse2* As part of our last report, we compared the University’s latest RVSM and Title IX Policy (at that time)2? and accompanying procedures® with current Title IX regulations. We found that, as written, the RVSM and Title IX Policy and procedures comply with the regulatory requirements. We repeat that finding here, as the RVSM and Title IX Policy and procedures were recently updated to reflect the latest changes to the federal regulatory framework and application.” We also compared the University’s new and evolving practices with the requirements of the regulations. The University provided us with a preliminary copy of its case management guidelines Appendix M, 2 Appendix N. ® Appendix, 2 Appendix Q Appendix R % Appendix U. 2 Appendix T (Reporting Protocol, updated July 1, 2021), Appendix V (FAQ, updated July 1, 2021), Appendix B. 2 Appendices H, I, and J 2 The two most recent Hearing Procedures (Appendix! and Appendix H) now request that the parties’ advisors identity, in advance of the hearing, the parties and witnesses for whom they anticipate they will have cross- ‘examination questions. Appendis |, p. 3, Appendix H, p. 4, The current procedures state that, if neither party requests to question a witness, then the Resolution Officer may consider that witness's statements to the investigator as set forth in the Investigation Report and evidence submitted, Appendix, p.9, Appendix Hp. 8 While the final regulations do not expressly prohibit asking the parties to identify in advance the individuals {or whom they will hve questions, we recommend that the University consider having witnesses available in the event that information at the hearing alters earlier determination about their need to question witnesses. ‘This more flexible approach is more supportive ofthe final regulations requirement that, “At the live hearing, the decision-maker(s) must permit each party's advisor to ask the ather party and any witnesses all relevant questions and follow-up questions” 34 CER. § 106.45(b)(6)(0). Appendix H also updates the hearing procedures to reflect the ruling in Victim Rights Law Center et al. v Cardona, No. 1:20-ev-11104, 2021 WL 3185743 (D. Mass. July 28, 2021). Accordingly, Appendix H removes from the hearing procedures, the prohibition on statements not subject to cross-examination, the part of the Title IX Regulations which were vacated by the Cardona ruling. See Appendix I, p. 3, 6, 8, and 9, updated by Appendix H, p.3, 5, and 8 Appendix H updates the Sanctions & Appeals to reflect that Student Sanctions will be determined by the Director of the Resolution Office. See Appendix | p.9, updated by Appendix H, p.8.Page 6 Which it plans to use inall RVSM, Title IX and ADP cases.*” We find that, as written, the draft guidelines comply with the regulations. B. _ Review of Case Files In this round of review, we reviewed the nineteen cases resolved through the formal resolution process in the Fall 2021 semester. We extracted relevant information® from each case and analyzed Whether the University adhered to its written policies and procedures.” In doing so, we reviewed consistent and specific criteria for each case, captured them in a spreadsheet, and analyzed the information to reach tailored recommendations for individual cases. Those criteria provided the foundation to evaluate, for each case, whether the University policies were adhered to and whether those policies are compliant with governing legal standards, Examples of the criteria we considered include the timeliness of the resolution process, interim and supportive measures offered and implemented, the consistent use and sufficiency of written notice to both parties, and the effectiveness ofthe institutional response, including all actions taken to investigate or otherwise assess reports. We reviewed the facts and circumstances of each case to make recommendations tailored to the conduct and the parties involved in each matter and to evaluate for systemic issues that existed across cases. Given the changes in federal law, and the resulting changes in University policy, the nineteen cases reviewed were investigated under seven different policies. As a result of the timing of the conduct alleged, four of the cases were investigated using two different RVSM policies. The relevant policies in of the Fall 2021 review date from 2017 to 2020. For that reason, we have attached the relevant previous versions of the RVSM Policy and ADP as appendices** and have included the requirements ofthese policies in our case evaluation rubric" II Overview of Governing Legal Standards ‘The federal framework is based on two primary statutes: Title IX of the Education Amendments of 197255 ("Title IX"), and the Jeanne Clery Disclosure of Campus Security and Campus Crime Statisties Act ("Clery"), as amended by Section 304 of the Violence Against Women Reauthorization Act of 2013 (*VAWA").” Effective institutional responses require a coordinated and integrated approach to Title IX and Clery implementation. Educational institutions must also carefully consider obligations under state and local laws. Under Michigan Public Act 265 of 2018, for example, public universities © The University shared a preliminary copy of these guidelines with us for our review, We have not attached them asan appendix because they are still in draft form, 4 Appendix W contains the categories of extracted information. % Appendix X contains the policy and procedure rubrie against which we assessed each case 3 Appendices A,B, C.D, EF, Gand P. % Appendix X > Title IX is cole starting at 20 US. § 1681. This paragraph provides a high-level summary of Title If requirements. There are significant nuanced institutional responsibilities under Title IX, too numerousto detail here, which informed our review and assessment of institutional responsibilities. Our January 31, 2020, report included a detailed summary of institutional responsibilities under Title IX, Clery, VAWA, and Michigan state law as Appendix M. 3520 USC.§ 1092(0), + Pub. L.113-4, Violence Against Women Act of 2013 (Mar. 7, 2013)Page 7 ‘must publicize certain campus safety information and comply with particular reporting, certification, training, and procedural requirements. Title IX is a federal civil rights law that provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX is accompanied by implementing — and now updated — regulations which require that an institution publish a non-discrimination statement;*® appoint a Title IX coordinator; and adopt grievance procedures that are prompt and equitable." In evaluating compliance, OCR routinely reviews an educational institution's policies, as written, and equally important, as applied. In reviewing individual cases, we observed that the majority of the cases files were complete (though ‘we did note missing information in six ofthe nineteen cases) and that the documentation reflected that the matters were addressed effectively. In all cases, we found that initial outreach was sent in a timely manner and communications were professional, sensitive, and balanced in tone. We noted that, across cases, parties, including Claimants and Respondents, were consistently offered supportive measures and that a campus administrator specifically charged with providing initial and ongoing support, the Campus Equity Navigator, often followed up with parties throughout the process to ensure that they had ongoing access to supportive measures. In general, we found the investigative reports to be well written, comprehensive, appropriately neutral, and reflective ofa fair, impartial, and thorough fact-gathering. We identified no concerns with conflicts of interest or bias by any personnel, We found that the decisions by the Resolution Officers and Equity Review Officers in hearings and appeals were tied to the facts and articulated in clear rationales. We were not provided with information about employee sanctions, but note that the redacted documentation reflected that sanctions were issued by the appropriate disciplinary unit. For students, we found that the sanctioning information was included in the case file and was accompanied by documentation supporting the rationale. Given the findings in the individual case reviews, which are detailed below, we highlight two compliance concerns, which are consistent with our past reviews: 1) the provision of a prompt investigation and resolution under Title IX and the Clery Act, and 2) increased OIE management of the notice of investigation process to ensure that all potential policy violations are included in the notices to the parties. *® See Michigan H.B, 5579 (P.A. 265 of 2018). 20 USC.§ 1681(2). 34 CPR. § 106.(b}. #134 CER. §106.6(9. 234 CER.§ 106.8(0) * According to Michigan State Law, an employer or former employer shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party, to party who is nota part ofthe employer's ‘organization, oF toa party who is nota part ofa labor organization representing the employee, without written notice, See, MLS § 423.506Page 8 Provision of a Prompt Investigation and Resolution 1. Legal Requirements Title IX’s implementing regulations articulate three specific obligations related to how an educational institution must address sex discrimination that occurs in connection with the school: that an institution publish a non-discrimination statement; that it appoint a Title IX coordinator; and that it adopt grievance procedures that are prompt and equitable-* While prior OCR guidance set forth timeframes to guide institutions in providing a "prompt" response, the current legal framework simply requires that the institution include reasonably prompt time frames for conclusion of the grievance process, including for filing and resolving appeals." Consistent with prior OCR guidance, the final Title IX regulations require a process that allows for the temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the parties of the delay or extension and the reasons for the action.*6 These provisions track and align with similar provisions in the Clery Act. The Clery Act, as amended by VAWA in 2013, also provides that the proceedings entail a prompt, fair, and impartial investigation and resolution.*” The Clery Act states that a prompt, fair, and impartial proceeding includes a proceeding that is “completed within reasonably prompt timeframes designated by an institution's policy, including a process that allows for the extension of timeframes for good cause with written notice to the accuser and the accused of the delay and the reason for the delay.."¥¥ Based on our review of the formal investigation cases completed in the Fall 2021 semester, closer management and coordination — particularly of those cases assigned to external investigators — continues to be essential to meet the time frames specified in the University’s policy. Moreover, additional case managementand more frequentand detailed communication with the parties will help ensure that any delays are accompanied by notice and an explanation as to the good cause reason for delay. In this round of review, we also noted concerns with timeliness in cases addressed by internal investigators, particularly, the time elapsed from completing fact-gathering to generating an investigative report. Additional case management and internal case timing protocols would help mitigate some of these delays. Though we do not know the full volume of reports received, some of the delays may be impacted by a high volume of reports, high caseloads per investigator, or the process of adapting the framework of the regulations which requires substantial documentation and preparation work for evidence review and drafting of the investigation report. 2. Specific Observations In this round of review, we identified concerns about promptness in ten out of nineteen cases. In each of these cases, we found extensive delays with either no written notice to the parties acknowledging the delay or, an acknowledgement of the delay to the parties, but no explanation as to good cause. This raises two related concerns: 1) delays based on circumstances within the control of the #34 CPR. § 106.8(c). Emphasis added, Wid 1 34CRR.§ 106.45(0)(1)(V. 1734 CER, § 668.466). Emphasis added. 34 CER.§ 668.46(1.Page 9 University and/or University-appointed personnel; and, 2) lack of written notice of the delay and the good cause reasons for the delay, as required by federal law. In two unrelated cases we reviewed, we identified unexplained inactivity during the fact-gathering phase on the part of external investigators from a particular firm. We found the amount of time taken to prepare and review investigative reports following the conclusion of the fact-gathering phase to be another source of significant delay. In one case, significant delays were caused by inactivity during the fact-gathering phase by external investigators, and further delays by the internal investigator after the case was transferred from the external firm to an investigator within OIE. B. _ OIE Management of the Notice of Investigation Process 1. Legal Requirements ‘The final Title IX regulations require that, upon receipt of a formal complaint, an institution must provide the following written notice to both Claimant and Respondent: (A) Notice of the institution’s grievance process that complies with the new regulations, and (B) Notice of the allegations of sexual harassment (including sexual assault, dating violence, domestic violence, and stalking), including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment (including sexual assault, dating violence, domestic violence, and stalking), and the date and location of the alleged incident, if known.” ‘The Clery Act states that a prompt, fair, and impartial proceeding includes a proceeding that is, “conducted in a manner that is (1) consistent with the institution's policies and transparent to the accuser and accused; (2) includes timely notice of meetings at which the accuser or accused, or both, may be present; and (3) provides timely and equal access the accuser, the accused, and appropriate officials to any information that will be used during informal and formal disciplinary meetings and hearings; and ... conducted by officials who do not have a conflict of interest or bias for or against the accuser or the accused.’ ‘The University’s RVSM Policy, including its prior versions, has long required issuance of a written notice ofthe investigation to both parties.*? The new RVSM and Title IX Policy tracks the requirement of the 2020 Title IX Regulations and requires OIE to issue a written notice of investigation to the Claimantand Respondent within three business days and requires the notice to include the identities of the parties; the time, date, location and nature of the reported prohibited conduct; the potential 49 34 GEER. § 106.45(b)(2). While more prescriptive inthe final regulations, a written notice of investigation has been required since OCR's September 2017 Q&A, which states that once a school “decides to open an investigation that may lead to disciplinary action against the responding party, a school should provide written notice to the respondent party ofthe allegations constituting a potential policy violation ofthe school's sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview... Each party should receive written notice inadvance of any interview or hearing with sufficient time to prepare for meaningful participation... The reporting and responding parties and appropriate ofiials must have timely and equal access to any information that will be used during informal and formal disciplinary meetings and hearings." 2017 Q&A at 4 34 CER § 668.46(10, 5 Appendices A,B, C,D,F,, and G. 8 Appendix A, p. 22.Page 10 policy violations; the identity of the investigator; information about the availability of supportive ‘measures and confidential resources; information about the right to an advisor of the party's choosing, including the availability of University provided advisors; and an instruction to the parties to preserve any potentially relevant evidence! In the cases in which external investigators were assigned, the external investigators drafted and disseminated the written notices of investigation to the parties. However, in four of the cases investigated by external personnel, the notices to Claimants were missing from the case files. The notice of investigation is a critical step in ensuring the fairness and appropriate procedural protections in the investigation process. Moreover, as noted above, the University’s notices include information about the perseveration of evidence, the availability of advisors, the identity of the investigator, available supportive measures and confidential resources, and other important information. We recommend that University OCR, including the Title IX Coordinator, work with OIE to develop and implement case management protocols to ensure that OCR/OIE administration is involved in the review of notices prior to dissemination to the parties ensure consistency, completeness, adherence to policy definitions and requirements, and legal sufficiency. We further recommend that OCR/OIE leadership work with investigators, whether internal or external, to ensure visibility into the information gathered so that OCR/OIE can prepare and deliver notices of investigation that include all potential policy violations identifiable based on known information, and remain alert to the gathering of facts that may necessitate an amended notice. Given the specific requirements of the Title IX regulations, and the civil cases addressing the importance of written notice under procedural due process protections, reviewing the facts for additional policy violations and /or reviewing the existing notice of investigation should be a formal part ofthe protocol required by internal and external investigators, with corresponding documentation to confirm that the review was completed. 2. Specific Observations In this round of review, there were five cases in which the notice of investigation to the Claimant was missing from the case file. We also noted three cases where the notices appear to have been issued to the Claimant and Respondent on different dates. While simultaneous notification is not a requirement under Title IX or the Clery Act, we encourage the University to issue notices at the same time where possible to reinforce a balanced and equitable process. IV, Individual Case Reviews Ten of the cases we reviewed reflected significant challenges around timeliness and lacked documentation of good cause reasons for delay. Four of the cases we reviewed (including two with timeliness issues) were missing the notice of investigation. We identified no concerns in seven matters—each of which was investigated by an internal OIE investigator. We make the following observations with regard to the cases we reviewed: A, Emerald IDs 2019-00196 and 2020-00141 (cross-complaints) Party Land Port 7, I separately attended a party a in [EEE] 2019. As a result of their interactions at the party, they each filed a complaint of sexual ‘misconduct against the other. The reports were made separately in J 2019 and [a 2020 and were consolidated for investigation and resolution. The University applied the February 8, Appendices A,B, CD, E,F,and G.Page 11 2019, version of the RVSM policy (Appendix DJ; and, since neither party requested a hearing, the cases were adjudicated by the investigator without a hearing. Upon review, we find that the University took prompt and effective steps to respond to and investigate the reports, up until the time the Preliminary Investigative Report was shared with the parties. The University conducted an impartial and thorough investigation that consisted of interviews with the parties and six witnesses, as well as gathering and considering several items of tangible evidence. The University issued its Preliminary Investigative Report four months after the investigation began. We find that timeframe prompt in light of the nature of the report, number of witnesses, and evidence gathered. However, after the Preliminary Investigative Report, there was a delay of four additional months before the Final Investigative Report was issued. We do not find such a delay reasonable in light of the circumstances, nor was good cause for the delay communicated to the parties, We are also concerned about the timeframe following the appeal and subsequent remand of the ‘matter. Following the appeal, there was a period of six months before the University issued a revised Final Investigative Report. Once issued, the University found that the Final Investigative Report contained an inadequate credibility analysis such that it required an updated report. We find that, to the extent the University will request investigators to make credibility assessments moving forward, the University should utilize a system of review to ensure that such assessments are complete. Considering the facts and circumstances of this case, we do not find that the University provided a prompt response in the nine month period between the Final Investigative Report and the resolution through appeal, Finally, we note that the case file is unclear as to whether the parties were provided with updates on the status of the investigation and adjudication, which isa legal requirement under the laws in effect at the time (written notice of good cause for delay) and something that would likely have been particularly valuable given the procedural history of these cases. B. Emerald 1D 2020-00699 During MM 2019 and (NM 2020 EMM. Respondent, an undergraduate student, communicated with Claimant, I 2501001 3150 Respondent claimed to be looking out for Claimant's interests Liz ateae Unseen by letting Claimant know how others may view her aaa Claimant reported Respondent's conduct on May 25, 2020. The investigation began under the ADP, but there was no articulated protected class violation. The matter was then assigned to an RSVM investigator on July 26, 2020. The case was investigated and adjudicated using the January 3, 2020, version of the RVSM policy (Appendix C). The matter concluded with a hearing and written decision in April 2021. ntacted Cl We found that the University’s response in this matter was prompt, thorough, and consistent with its policy. Though there were some delays, the University’s investigation was impartial and included all appropriate and reasonable steps to gather relevant information. The Preliminary Investigative Report was completed by the investigator on September 25, 2020, and sent to the investigator's supervisor for review. While the report was undergoing supervisory review, the investigator received additional information from the parties and interviewed three additional witnesses, withPage 12, the last interview occurring on December 8, 2020. This resulted in a delay of the Preliminary Investigative Report, which was sent to the parties on December 13, 2020. The parties both requested a hearing, on February 22, 2021. The Hearing Packet was sent to the Resolution Office on February 26, 2021. The pre-hearing conferences were held on March 10, 2021, and the hearing was held on April 9, 2021. The decision was made on April 29, 2021. The Resolution Officer’s written decision was well reasoned and faithful to University policy. We identified no concerns with this case. C—_ Emerald 1D 2021-00027 This case involved a report of gender discrimination within the University's aa. The report was made to OIE on January 8, 2021, with a decision date of April 14, 2021. The University investigated and adjudicated this matter under its Anti-Discrimination Policy (Appendix P). Upon review, we find that the University took prompt and effective steps to respond to the report. The University engaged an external investigator who conducted an impartial and thorough investigation. ‘The Investigation consisted of interviews with both parties and five witnesses and was concluded within three months of the date the report was first received. Further, a thorough and well-reasoned investigative report that effectively evaluated the evidence was prepared and a decision was reached based on the credible evidence gathered We identified no concerns with this case. D, —_ Emerald 1D 2019-00086 This case involved two Claimant, TTT. who reported a pattern of concerning behavior on the part of Respondent, iij an undergraduate student. On February 17, 2019, Claimants reported I. anc later to the University Police Department (CMSUPD"), that Respondent} HB asked them ifthey did drugs, and listened to their conversations amma On the night of the report, a MSUPD officer spoke to Respondent and told him to have no contact with Claimants. It was reported that, a week later, Respondent stared at and briefly followed Claimants a ‘The case was investigated and adjudicated under the February 8, 2019, version of the RVSM policy (Appendix D). It was adjudicated by the investigator without a hearing. Upon review, we find the University's response in this matter to be impartial and thorough in that it reached a reasoned conclusion based on the evidence gathered. However, this matter took over two years to resolve and included lengthy delays that are not adequately explained in the case file. Under these circumstances we do not find that the University’s response was prompt This case was initially assigned to an external investigator who interviewed both Claimants and two witnesses within a few weeks of the report, Following those interviews, however, itis unclear what transpired. In September 2019, the external investigator informed the parties that they would be receiving a Preliminary Investigative Report. It does not appear that such a report was ever transmitted to the patties. According to the case file, in June 2020, the case was transferred from the external investigator to an internal investigator. This nine month period of inactivity is not explained except that the case file notes that the matter was transferred from the external investigator back to the University to complete the investigation. From the date of transfer, there was an additional periodPage 13 of three months in which the internal investigator completed the investigation. The file indicates that the OIE investigator was still waiting for information from the external investigator as late as September, 2020. Finally, between the issuance of the Preliminary Investigative Report and the Final Investigative Report, another four months passed. The file is nearly silent regarding what was done between December 8, 2020, (the date the Preliminary Investigative Report was sent to the parties) and April 5, 2021, (the date the Final Investigative Report was sent to investigator's supervisor). The only information in the file during that time frame was a note in January 2021 indicating that the parties were made aware that the case would be determined via a Final Investigative Report. By the time the Final Investigative Report was issued, ERE. We co not find this response timely and note that there do not appear to be any communications to the parties about the causes for delay in this case. We also note that the case file does not include a notice of investigation to efther Claimant, We recommended that the University consider implementing a periodic check-in with external investigators to help identify, and remedy, circumstances where an investigation has stalled or other progress towards a resolution is experiencing an inordinate delay. E, Emerald 1D 2019-00253 On April 2, 2019, Claimant reported that Respondent engaged in nonconsensual sexual activity with her on two prior occasions in 2018. Because the alleged instances took place before and after August 31, 2018, the case was investigated and adjudicated under both the August 30, 2017 (Appendix F), and August 31, 2018 (Appendix E), versions of the RVSM policy. Itwas adjudicated by the investigator without a hearing. Upon review, we noted several concerns with the University’s response to the report in this case. First it took over two years to resolve. This case was initially assigned to an external investigator and it took more than a year for the investigator to interview both parties and eight witnesses and to prepare a draft of the Preliminary Investigative Report. The case was then transferred to an internal investigator, but — for reasons that are not documented in the case file — the Preliminary Investigative Report was not provided to the parties until nine months later. While some ofthis delay was attributable to the internal investigator conducting a follow-up interview, we do not find that a delay of this length was reasonable or constituted a prompt response by the University. We also acknowledge that the case proceeded expeditiously from the time the Final Investigative Report was provided to the parties through the sanctioning phase and appeal process. It should be noted that by the time the process was completed, Respondent had graduated and had his degree conferred. Thus, the Equity Review Officer, in addition to upholding the findings made in the Final Investigative Report, instructed the University to change the language of the sanction from dismissal toa permanent ban on reenrollment. Like other cases we reviewed, the case file in this matter did not include a notice of investigation addressed to Claimant, F, Emerald 1D 2020-00718 On June 1, 2020, OIE received a third-party report that Respondent, a professor and graduate program director, separately subjected Claimants, three ISIN to sexual harassment from 2009 through the spring of 2020. Respondent was alleged to have separately and repeatedlyated electronically with each Claimant on a personal [cv ee These matters were consolidated for purposes of investigation and adjudication, The investigation consisted of interviews with al four parties and seven witnesses as well as the compilation of several items of tangible evidence. The University applied the February 8, 2019, version of the RVSM Policy (Appendix D), the version that was in effect at the time of the third-party report, to investigate and adjudicate this case and applied the definitions of sexual harassment that were in effect at the various times Respondent was alleged to have engaged in the conduct. We find the University’s response to the report in this matter to be prompt, thorough, and effective. While the adjudication of these cases took just over a year, we find that time frame to be reasonable under the circumstances, particularly that the alleged conduct took place over a period of more than ten years and involved several different versions of the University’s sexual harassment policies and that the University received the report only a few months after the start of the Covid-19 pandemic. Further we find that the University’s findings in this matter were based on the available evidence and guided by the appropriate policy. The University reached sound and well-supported findings tied to the facts of each of the cases. We note, however, that the case file did not include any notices of investigation to any of the Claimants G._ Emerald 1D 2020-00840 OnJune 1,2020, during an interview fora different investigation, Claimantalleged that EE €ng2ge0 in retaliation by pressuring Claimant POR NSP) ‘The University investigated and adjudicated the retaliation matter using the RVSM Policy effective ‘August 31, 2016 (Appendix G), which was the version in effect at the time of the alleged retaliation. Accordingly, this matter was adjudicated by the investigator without a hearing, Upon review, we find that the University took effective steps to respond to, investigate, and adjudicate the report. The University conducted an impartial and thorough investigation, and reached findings based on the facts. We, however, find that the University’s response does not qualify as prompt. This case took just over a year to complete and, while the case file indicates holiday closures and investigator vacations contributed to the delay, the case file does not contain adequate reasons to explain the length of time to resolve this matter. We are particularly concerned with the delay of four months, from March 4, 2021, to July 2, 2021, during which the completed Final Investigative Report was awaiting supervisory review. ‘We recommend that OIE develop internal protocols and ensure appropriate staffing levels to prevent delays in reviewing, editing and issuing reports. 51 We note that the definition of sexual harassment remained materially the same through the different versions (ofthe applicable University policy from 2009 until August 14, 2020.Page 15 H, Emerald ID 2020-00895 Onjuly 8, 2020, Claim iT reported that Respondent, a student Claimant] called MSUPD. MSUPD arrested Respondent later the same day, and after being interviewed, Respondent ‘was taken to the Ingham County jail, where he remained throughout most of the investigation. ‘The University investigated and adjudicated under the RVSM Policy effective January 3, 2020 (Appendix C). The case was investigated by an internal investigator, and a hearing was held, in which the Respondent took responsibility for the policy violations, and the Resolution Officer found Respondent responsible. The University’s response in the case was complicated by the fact that Claimant was non-responsive to outreach. Since both parties chose not to participate in the investigation, the University proceeded with an investigation by gathering video footage, including footage from the responding MSUPD officers’ body worn cameras. Upon review, we find that the University took prompt and effective steps to respond to, investigate, and adjudicate the report. The University conducted an impartial and thorough investigation, reached findings based on the facts, and issued sanctions through the appropriate disciplinary unit. ‘The resolution of this matter took approximately one year to complete, which we found reasonable in light of a non-responsive, IM Claimant, and an incarcerated Respondent. 1 Emerald 1D 2020-01008 This case was reported to OIE on August 17, 2020. Claimant, NM, alleged that] Respondent, IM. Respondent sexually assaulted [i on three separate occasions in 2019 and 2020. This case implicated two different policies, based on the dates of the incidents. Two of the incidents, which occurred in [ij 2019 and [NN 2019, were investigated under the RVSM Policy amended February 8, 2019 (Appendix D). The third incident, which occurred in J 2020, was investigated under the RVSM Policy amended January 3, 2020 (Appendix C). On May 24, 2021, Chinan, TAT, sent an email request to withdraw her formal complaint and to dismiss the matter. The dismissal was granted on June 1, 2021. Noappeal was filed, and the case was closed on June 9, 2021. Upon review, we find that the University took prompt and effective steps to respond to, investigate, and begin to adjudicate the report, with one notable exception: the time between the interview with Claimant, in which she indicated her desire to file a formal complaint (September 15, 2020) and the date when the formal complaint form was sent to Claimant (November 18, 2020). ‘We recommend that OIE develop internal protocols to prevent the type of delay detailed above. Claimant's request from the beginning was to investigate the allegations through a formal complaint. Following that request, a formal complaint form should ave been made available to her, or at the least, reasonably prompt determination as to whether the allegations, iftrue, constituted a violation ofthe RVSM policy. We identified no further concerns with this case.Page 16 J. Emerald 1D 2020-01091 This case was reported to OIE on September 18, 2020, and involves Claimant and Respondent il EEN} 2 220 hat Respondent vas Facebook messages, standing too close to her, staring at her, patting her on her back, and brushing ‘1p g3inst er ‘Two polices were implicated in this case, due to the timing of the events: the RVSM Policy, amended January 3, 2020 (Appendix C); and, the RVSM and Title IX Policy, dated August 14, 2020 (Appendix B), This case took nine months to conclude. The case was adjudicated through a hearing on May 5, 2021, and the decision was provided to the parties on June 2, 2021. Upon review, we find that the University took prompt and effective steps to respond to, investigate, and adjudicate the report. The University conducted an impartial and thorough investigation, reached findings based on the facts, and issued sanctions through the appropriate disciplinary unit. We identified no concerns with this case. K. Emerald 1D 2020-01290 OIE received a public incident report on November 15, 2020, stating that an individual, later identified as Respondent, created a fake IN account with the nae, aaa ° The report alleged that the| Multiple reports were submitted about the same conduct. This case ‘under the RVSM and Title IX Policy updated on August 14, 2020 (Appendix B). ‘was investigat ‘The University sent outreach to all identified Claimants. They chose not to file formal complaints or otherwise participate in the subsequent investigation. The Title IX Coordinator filed a formal ‘complaint, initiating an investigation. On March 4, 2021, following Respondent's interview and a Title 1X Case Review meeting, the case was discretionarily dismissed, Upon review, we find thatthe University took effective steps to respond to and investigate the report. However, we are concerned that the delays that took place in this case are not reasonable under the circumstances. For example, there was a two-month delay between the initial report and the determination to file a formal complaint without Claimants’ participation, There was another one- month delay while the draft discretionary dismissal letter was under internal review. Going forward, werrecommend that OIE ensure appropriate staffing levels in order to mitigate these kinds of internal or supervisory delays. Case ID #2019-00259 stalked Claimant Claimant originally reported the cipation on October 15, 2018. Claimant Claimant requested the case be re-opened on March 22, 2019, This case implicated the RVSM Policy, effective until February 8, 2019 (Appendix E) and, consistent with that policy, it proceeded to a formal resolution with the investigator making the determination. Upon review, we find that the University took effective steps to respond to, investigate, and adjudicate the report, The University conducted an effective, impartial, and thorough investigation, reached findings based on the facts, and issued sanctions through the appropriate disciplinary unit. However,Page 17 ‘we do not find that the University’s response qualified as prompt. The resolution of this matter took over two years. We are particularly concerned about the fourteen-month period from March 2019 and May 2020 when the case was assigned to an external investigator for fact gathering, The information gathered in that time period included interviews with the parties and two witnesses, however, there ‘was significant lack of communication from the external investigator to the parties and OIE, nor is there a sufficient explanation to account for this length of time to complete four interviews. ‘The case file reflects that, in May 2020, OIE transferred the case from the external investigator to an internal investigator to complete the case in a timelier manner. The internal investigator synthesized the information and provided the parties with a comprehensive Preliminary Investigative Report in June 2020. Since neither party requested a hearing, the internal investigator was responsible for preparing a Final Investigative Report. The Final Investigative Report was issued on July 28, 2021. The delay of thirteen months to prepare that Report was the result ofthe following: a rewrite requested by a supervisor; additional evidence received, and need for review by both parties and supervisor; vacation and out-of-office days of the investigator; and additional time for supervisory review of report before issuance. Though these reasons were well-documented in the case file and communicated to the parties contemporaneously they are unreasonable under the circumstances. This case did contain a voluminous amount of evidence (approximately 110 pages of exhibits consisting of texts, and social ‘media messages and posts), however, that evidence had been received and reviewed by the University prior to the time of the Final Investigative Report. We recommend that OIE exercise greater management of cases assigned to external investigators to ensure that the grievance process is proceeding in a prompt and equitable manner. We further recommend that OIE ensure that staffing is sufficient to prevent these types of delays in report- writing, M. Case ID #2020-00209 ‘Three Claimants, [TTY reported that JT. Respondent, engaged in sexually harassing behavior toward them during the time of the alleged policy violations. The case was first reported to OIE on February 24, 2021, and was closed on September 30, 2021. This case implicated both the RVSM Policy, effective january 3, 2020 (Appendix C) and the RVSM and Title IX Policy, effective August 14, 2020 (Appendix B). The Resolution Officer determined that the allegations did not meet all of the coverage requirements for the RVSM and Title IX policy, and thus dismissed the case. The parties were provided an opportunity to appeal Upon review, we find that the University took prompt and effective steps to respond to, investigate, and adjudicate the reports. The University conducted an impartial and thorough investigation and reached findings based on the facts. The resolution of this matter took approximately seven months in total. The case involved three Claimants, one Respondent and five additional witnesses. We find that the case file contained sufficient explanation and documentation for the delays and contained contemporaneous communications to the parties about the extensions of time and the good cause reasons for the delays, as required by federal law. We identified no concerns with this case.Page 18 Emerald 1D 2020-00999 Claimants he conduct 017, and the 2020. Due lespite not having On August 14, 2020, OIE received an anonymous report alleging that two experienced sexual harassment by| involving the first Claimant was alleged to have taken place during] conduct involving the second Claimant was alleged to have taken place| to the nature of the allegations, the University initiated a formal complaint identified Claimants, As the alleged conduct took place during two different timeframes, the University's response was governed by two RVSM policies: the RVSM Policy effective August 30, 2017 (Appendix F) and the RVSM Policy effective January 3, 2020 (Appendix C), Upon review, we find that the University took prompt and effective steps to respond to, investigate, and adjudicate the reports. The University conducted an impartial and thorough investigation and reached findings based on the facts. This case involved extensive investigatory steps, even prior to the date that OIF elected to move forward without the Claimants’ participation. Because the initial report was anonymous, OIE undertook significant efforts to identify potential Claimants, including emailing for whom the Respondent ‘After obtaining these lists, OIE made outreac toall potential Claimants to offer supportive measures and an opportunity to report. Two Claimants ‘were identified through this process. After meeting with OIE, providing information, and taking time to consider whether or not they wished to file a formal complaint, they eventually told OIE that they did not wish to participate in the formal grievance process. In light of the nature of the conduct, O1E took reasonable investigatory steps and adjudicated the matter through its formal grievance process even without the Claimants’ participation, The investigation included information provided by both Claimants in intake meetings, text and social media messages provided by Claimants, information provided by TTT information provided by Respondent, and the anonymous report filed with the University. Although the case took approximately thirteen months to resolve, we found the timeframe for resolution reasonable. Moreover, the delays and good cause reasons ‘were communicated to the parties during the investigation and resolution. We identified no concerns with this case. 0. Emerald 1D 2020-00632 On April 21, 2020, Claimant, reported that the two Respondent: MN! cose assaulted Serene During the University’ ;ponse to this report, there was a contemporaneous criminal investigation into the Respondents’ alleged conduct. ‘The case implicated the RVSM Policy, effective February 8, 2019 (Appendix D). The case was adjudicated without a hearing, and closed on July 30, 2021 Upon review, we find that the University took effective steps to respond to, investigate, and adjudicate the reports. The University conducted an impartial and thorough investigation and reached findings based on the facts. While the case took over fifteen months to resolve, we find that there were legitimate delays beyond the control of the University, such as the delay of two months in which MSUPD asked OIE to delay outreach, and the subsequent attempts to contact Claimant which were unsuccessful, resulting in an additional two-month delay. However, we find that the other significant delays in this case are concerning, including the four months it took to prepare the Preliminary Investigative Report following the completion of the fact-Page 19 gathering and an additional four months to prepare the Final Investigative Report after none of the parties requested a hearing. Although the investigator did provide contemporaneous communications to the parties about the extensions of time, we recommend that the University re appropriate staffing levels or develop internal protocols to prevent such delays. P. Emerald ID 2020-00750 uly 1, 2020, Claimant, reported that Respondent, a student, sexually assaulted her in IN| 2020. She allege HR Catia state ‘The policy implicated in this case is the RVSM Policy, effective January 3, 2020 (Appendix C). The case was adjudicated without a hearing, Upon review, we find that the University took effective steps to respond to, investigate, and adjudicate the report. The University conducted an impartial and thorough investigation and reached findings based on the facts. The investigation included interviews with five witnesses, and included the gathering of numerous text and social media messages and other communications relevant to the incident. Despite these thorough investigative steps, we are concerned with the detays that occurred between the time that the investigator concluded witness interviews and sent the Preliminary Investigative Report to the parties (four months), and the time between the deadline of a request for a hearing and the date the Final Investigative Report was sent to the parties (five months). Although the investigator provided contemporaneous communications to the parties about the extensions of time, we recommend that that the University ensure appropriate staffing levels or develop internal protocols to prevent such delays. Q. Emerald 1D 2021-00196 On February 15, 2021, Claimant, a Resp one, J when she told the investigator that Ke spondence ‘This case implicated the RVSM and Title IX Policy, effective August 14, 2020 (Appendix B). The case was adjudicated through a hearing. The Resolution Officer and the Office of General Counsel determined this case should be combined with [ij other cases involving Respondent for the hearing process. Under the University’s Policy, OIE consolidated these cases finding that they arose out of the same facts or circumstances. Consistent with federal law, the University reached individual determinations of responsibility as to each alleged instance of conductand as to each party. The cases all involved the same Respondent, and each Claimant's testimony was used as pattern evidence in the cases in which they were not the Claimant.* The Resolution Officer conducted one hearing on all ‘cases and issued separate decisions on each case. Upon review, we find that the University took prompt and effective steps to respond to, investigate, and adjudicate the reports. The University conducted an impartial and thorough investigation and reached findings based on the facts. The case took seven months to resolve, which was reasonable under the circumstances. ‘We identified no concerns with this case. 55 Appendix B, p. 16.Page 20, R. Case ID #2021-00554 On May 14, 2021, Claimant, NM reported to OLE that Respondent, Mj a student, had sexually assaulted her on IM, 2021. ‘This case implicates the RVSM and Title IX Policy, effective August 14, 2020 (Appendix B). The case was adjudicated through a hearing, and the matter was closed on November 5, 2021 Upon review, we find that the University took prompt and effective steps to respond to, investigate, and adjudicate the report. The University conducted an impartial and thorough investigation and reached findings based on the facts. This case took five-and-one-half months to complete, which we found reasonable under the circumstances. We identified no concerns with this case. V. Recommendations We noted several ways in which the University’s implementation practices did not consistently adhere to the University’s written Title IX-related policies and procedures and/or the law. We observed the following recurrent issues: A. Documentation and Notice to Parties Regarding Extensions for Good Cause ‘As noted above, the Clery Act states that a prompt, fair, and impartial process includes a proceeding that is “completed within reasonably prompt timeframes designated by an institution's policy, including a process that allows for the extension of timeframes for good cause with written notice to the accuser and the accused of the delay and the reason for the delay."*6 Similarly, under the final Title IX regulations, a recipient's grievance process must “allow ... for the temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the ‘complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of party, a party's advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.""? In over half ofthe cases we reviewed, there were extensive delays, often with no written notice to the parties acknowledging the delay or providing an explanation as to good cause. We recommend that OLE create templates and workflows that support timely written notifications to parties about good cause reasons for delays. These steps will assist the University in complying with the legal requirements related to delays, neframe B. Completion of the Process Within a Reasonably Prompt ‘Throughout our previous reports, we have identified isses with respect to timeliness. Those issues are recurrent and, in this round of review, impacted a greater percentage of cases than in prior rounds of review. The below chart reflects our observations with respect to timeliness in this round of review as compared with our four previous reports: 34 CER. § 668.46(K). The prompt provisions under the Clery Act have been in effect ‘govern all cases ~ and policies -in this Fall 2021 review. 57 34 CRR.§ 10645(b](1)(V}, elfective August 14, 2020. nce july 1,2015, andPage 21 # of Formal Cases with | % Cases with Review Period Resolutions Timeliness Timeliness Reviewed Issues Issues Fall 2019 19 4 21% Spring 2020 34 | 14 41% Fall 2020 I 3 18 [25% Spring 2021 12 3 25% “Fall 2021 (current) 19 10 53% Based on the above, we recommend that the University review the most common sources of delay, identify root causes, and build in supports, resources, and revised protocols to ensure more timely resolutions.* In particular, the OIE should track timeliness and engage in real-time monitoring of adherence to University timeframes. As we have written previously, we note that, in many cases, the University’s response would have been timely but for one or two long stretches of inactivity. Better understanding recurrent causes of delay will assist the University in meeting its obligation to provide a prompt and equitable resolution process. C Resource Assessment to Ensure Timeliness In light of the volume of cases and ongoing concerns about timeliness, we recommend that the University carefully evaluate the need for additional resources to support these critical functions. VL Conclusion We hope our findings will spur meaningful programmatic enhancements, additional supports, and resources for implementers, and better outcomes for campus and community members. We appreciate the opportunity to candidly share our observations and recommendations regarding the University’s policies, procedures and practices regarding sexual and gender-based harassment and violence, intimate partner violence and stalking, We remain available to discuss these recommendations in greater detail Sincere}y fatireen P. Holland, COZEN O'CONNOR CC: Shannon Torres (via email (a 58 We understand that some of the delay was occasioned by the timing of completion of investigations by external investigators, who were engaged to assist the University with responding to the volume of reports received, and the subsequent internal steps to re-create the external investigator's work or assume oversight of the investigation. As the University moves to using internal investigators, the University may be able to exercise more stringent oversight and control over potential delays. We note that a significant portion of the delay in time frames, however, still rests within the oversight and review of the Preliminary and Final Investigative Reports.Page 22 Enclosures: Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix Appendix Appendix} Appendix K Appendix L. Appendix M Appendix N Appendix 0 Appendix P Appendix Q Appendix R Appendix $ Appendix T Appendix U Appendix V Appendix W Appendix X Appendix Y RVSM and Title IX Policy ~ Updated August 24, 2021 Prior Relationship Violence and Sexual Misconduct (RVSM) and Title IX Policy ~ ‘August 14, 2020, to August 24, 2021. Prior RVSM Policy ~ January 3, 2020, to August 14, 2020 Prior RVSM Policy ~ February 8, 2019, to January 3, 2020 Prior RVSM Policy ~ August 31, 2018, to February 8, 2019 Prior RVSM Policy ~ August 30, 2017, to January 8, 2018 Prior RVSM Policy - August 31, 2016, to August 30, 2017 RVSM and Title IX Policy Hearing Procedures - updated December 9, 2021 Prior RVSM and Title IX Policy Hearing Procedures - February 5, 2021, to December 9, 2021 Prior RVSM Hearing Procedures ~ August 14, 2020, to February 5, 2021 Notice of Non-Discrimination, Anti-Harassment and Non-Retaliation- updated October 1, 2021 Notice of Non-Discrimination, Anti-Harassment and Non-Retaliation ~ updated June 9, 2021 RVSM and Title IX Policy Complaint Dismissal Appeal Procedures RVSM and Title IX Policy Appeal Procedures RVSM and Title IX Policy Emergency Removal Procedures - updated March 11, 2021 Anti scrimination Policy (ADP) ADP User's Manual Anti-Discrimination Policy Appeal Procedures Community Email ~ Update to Child Abuse Reporting Protocols ~ June 9, 2021 University Reporting Protocol ~ Child Abuse and Other Harm to Children ~ updated July 1, 2021 Reporting Protocol - Relationship Violence, Sexual Misconduct, and Stalking Child Abuse Reporting Protocols FAQ - updated July 1, 2021 Categories of Extracted Information Case Review Rubric Relationship Violence & Sexual Misconduct Plan