June 2, 2017

Coordinating with Local Law Enforcement to Address Sexual Violence and Comply with Title IX: The Key Features to Address when Negotiating a Memorandum of Understanding

BY: Stephen McLoughlin, Eve Peek Fichtner, Marilou Mirkovich

Title IX of the Education Amendments of 1972 (Title IX) prohibits sex discrimination by any educational institution that receives federal funds.  Sex discrimination under Title IX includes sexual violence such as rape and sexual assault.  In order to address sexual violence and comply with Title IX, the federal government suggests that education institutions coordinate with local law enforcement to make sure both parties work together whenever sexual violence involves the campus community.  This coordination can be accomplished through a Memorandum of Understanding (MOU) between the education institution and local law enforcement agencies to establish the process both parties will use when addressing sexual violence.  While the federal government has not established specific requirements for MOUs, several institutions have circulated recommendations, including California Attorney General, which provides a “Model MOU” to be used by colleges.

While the Model MOU and various suggestions provide good ideas for an MOU’s contents, many education institutions find it difficult to negotiate a mutually agreeable MOU with local law enforcement.  Because there is no legal requirement to enter into an MOU, local law enforcement agencies are often hesitant to agree to a detailed MOU.  Therefore, it is often helpful for education institutions to focus on the key issues that should be addressed by the MOU to help comply with Title IX and address sexual violence.  These key features include the following:

1) The process both parties will use to release information regarding sexual violence occurring on campus or involving the education institution’s staff or students.  These requirements should explicitly state that both parties will inform the complainant of their options to pursue both criminal and Title IX actions with local law enforcement and the education institution respectively.

2) A discussion of how each party will address requests for confidentiality when receiving reports of sexual violence.  Although confidentiality is a complex issue depending on the specifics of each situation, the MOU can generally establish that the parties will consider requests for confidentiality and comply with applicable regulations regarding the disclosure of names and personal information of those involved in sexual violence investigations.

3) A summary of the efforts each party will take to coordinate their respective investigations.  This summary should specifically discuss evidence collecting and interviewing and establish how the parties will work together to disclose information and reduce interference.

4)  Confirmation that each party will take specific steps to promote sexual violence prevention and training for the campus community.  Usually, education institutions establish a sexual violence program and local law enforcement agencies provide assistance and information to support the program.

Of course, the specific information in the MOU with respect to these categories will vary depending on particulars of each situation.  However, in order to develop an MOU that will meet the ultimate purpose of addressing sexual violence, the MOU should at least touch on these five main areas.  AALRR can provide further guidance and suggestions to any education institution planning to form an MOU with local law enforcement.

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Attorney Bio(s)

smcloughlin

Stephen McLoughlin

Senior Counsel

562-653-3200

smcloughlin@aalrr.com

Stephen McLoughlin advises public and private agencies on a wide variety of transactional and litigation issues. He represents California community college districts, universities and school districts in education-related matters, providing advice and counsel concerning compliance with Title IX, transgender accommodations, First Amendment and other constitutional rights of students and employees and related federal and state laws. He represents education clients in grievance arbitrations, administrative hearings, and civil litigation in state and federal court.

full bio

efichtner

Eve Peek Fichtner

Partner

916-923-1200

efichtner@aalrr.com

Eve Peek Fichtner is a partner in the Sacramento office. Ms. Fichtner represents school districts, county offices of education, community colleges and private employers for personnel matters, student issues and all forms of discrimination and harassment claims. Ms. Fichtner has certification and significant experience conducting prompt, thorough and effective workplace investigations and Title IX investigations. She also provides resolution-based services to clients, including workplace coaching for employees and supervisors, conflict resolution training and facilitated meetings. In addition, she serves as a hearing officer for student expulsion cases, appeals and Title IX campus assault matters.

full bio

Marilou Mirkovich

Marilou Mirkovich

Partner

562-653-3200

mmirkovich@aalrr.com

Marilou Mirkovich has been an attorney for over 30 years. During that time, she has represented employers in all aspects of labor relations and employment law. For the past 15 years, conducting, supervising, and evaluating investigations has comprised the central part of Ms. Mirkovich’s practice, with a focus on discrimination, harassment, whistleblower allegations, Title IX sexual misconduct, Public Safety Officer and Firefighter misconduct, and other complaints.

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