An important, but little defined, section of the Department of Education’s (DOE) new regulations implementing Title IX of the Education Amendments of 1972 (“Regulations”) is the requirement that schools (or “recipients”) offer supportive measures. The topic is worth exploring. Supportive measures can mean the difference between a student who stays enrolled, is able to access counseling and other services, and maintains a trusting relationship with the institution, and one who is not. This article first analyzes the guidance contained in the Regulations pertaining to supportive measures and then gives practical advice on how to offer supportive measures in an effective manner.
Supportive Measures Overview
According to the Regulations, there are three goals of the supportive measures:
- Restore or preserve access to the school’s education program or activity without unreasonably burdening the other party,
- Protect the safety of all parties and the school’s educational environment, and
- Deter sexual harassment.
(34 CFR § 106.30(a)) A key change in the regulations from previous measures (then called “interim measures”) is contained within the first goal: DOE directs that supportive measures not unduly burden respondents before a formal grievance process has determined responsibility. Supportive measures may be offered before any formal complaint is filed, where a formal complaint is never filed, and even where a full grievance process results in a finding of non-responsibility. (34 CFR § 106.44(a); see also Regulations at 567 and 572) By separating supportive measures from disciplinary sanctions, the DOE directs that supportive measures be provided without consideration of the culpability of the respondent.
A clear demarcation between supportive measures and disciplinary sanctions is thus important. Recipients are required to list which actions taken are supportive measures and which are disciplinary sanctions. (Regulations at 570) If a remedy is listed as a disciplinary sanction, it cannot be provided prior to a finding of responsibility following a formal grievance process.
Some of the supportive measures identified by DOE include:
- Counseling,
- Extensions of deadlines or other course-related adjustments,
- Modifications of work or class schedules,
- Campus escort services,
- Mutual restrictions on contact between the parties,
- Changes in work or housing locations,
- Leaves of absence,
- Increased security and monitoring of certain areas of the campus, and
- Other similar measures.
(34 CFR § 106.30(a)) DOE stresses that this list is “illustrative, not exhaustive” and encourages recipients “to broadly consider what measures they can reasonably offer to individual students.” (Regulations at 577 and 580 (noting as well that measures can “be designed to retrospectively ‘restore’ or prospectively ‘preserve’ a complainant’s equal educational access”)) In particular, it notes that while only mutual no-contact orders are listed, one-way no-contact orders may be appropriate in particular circumstances. (Regulations at 577)
For measures that are not listed by the recipient as either supportive measures or disciplinary sanctions, a fact-specific analysis will be made to ascertain whether the measure is disciplinary in a particular case. In determining whether the imposition of a particular measure in a particular case unduly burdens the respondent, access to academic pursuits is not the sole consideration. Rather, recipients are instructed to consider “whether a respondent’s access to the array of educational opportunities and benefits offered by the recipient is unreasonably burdened.” (Regulations at 570) The Regulations note, for instance, that in some circumstances, barring participation in a team sport or student government will not unduly burden the respondent, while in others, it will. (Regulations at 569-70)
Procedural Requirements
Under the Regulations, the Title IX Coordinator is responsible for the supportive measures, from the initial offer of them through their implementation. However, the Regulations also place significant importance on the role of the complainant in the development of the particular supportive measures put in place.
Thus, the Title IX Coordinator is directed to contact the complainant promptly to discuss the availability of supportive measures and to consider the complainant’s wishes in crafting the measures offered. The complainant should be told how to file a formal complaint, and that supportive measures are available whether or not a formal complaint is filed. (34 CFR § 106.44(a)) The recipient’s Title IX Coordinator is then responsible for coordinating effective implementation of the supportive measures, which are to be free of charge. (34 CFR § 106.30(a))
Section 106.45(b)(1)(ix) notes that supportive measures are available to respondents, as well. There is no requirement that Title IX Coordinators affirmatively offer supportive measures to respondents, however, and commentary makes clear that these measures are available to respondents only after a formal complaint is filed. (Regulations at 580 (“The Department encourages recipients to broadly consider what measures they can reasonably offer to individual students to ensure continued equal access to a recipient’s education program and activities for a complainant, irrespective of whether a complainant files a formal complaint, and for a respondent, when a formal complaint is filed.”))
Beyond that, the Regulations do not provide further guidance on the process for offering supportive measures, but as someone who has worked with victims of crime for over twenty-five years, I have some advice.
Practical Advice on Provision of Supportive Measures
It is wise to assume that the complainant who presents himself or herself to you is suffering trauma. Perhaps he or she is not, and this is all a ruse; nonetheless, employing basic trauma-informed care will lead to the truth more quickly and will ensure that you are not needlessly re-traumatizing someone merely because he or she does not present the way that you would assume someone in trauma would present.
A person in trauma has a heightened level of stress. That heightened stress level dulls the person’s rational decision-making part of the brain and can make it difficult for him or her to process complex information. (See, e.g., Claire Bates, Blanking out: How stress can shut down the command centre in the brain, Daily Mail Apr. 10, 2012 (updated Apr. 11, 2012), available at https://www.dailymail.co.uk/sciencetech/article-2127686/How-stress-shut-command-centre-brain.html; Healthline, Amygdala Hijack: When Emotion Takes Over, available at https://www.healthline.com/health/stress/amygdala-hijack#overview) Therefore, in our interactions with someone in trauma, it worthwhile both to take steps to lower the person’s stress level and to communicate in a way that assumes the person may have difficulty comprehending us.
A few things help with this. Before the meeting, ask if the person would like to bring along a friend. This can help to calm the person down and is another set of ears to assist with understanding the information given. In addition, when we give someone options, we offer them power and that makes them feel stronger and less stressed. Therefore, look for opportunities to offer choice throughout your interaction with the person. “Where would you like to sit?” “Would you like the door open or closed?” “Would you like something to drink?” Offer to take breaks as needed throughout the conversation.
Be mindful of your body language. As much as possible maintain eye contact and keep an easy, open stance. It is also wise to avoid touching the person, as this can bring up painful associations. In your communication, use short, clear sentences. Aim to say important points in a few different ways. If there is some step that the traumatized person needs to take, a place to go (like a counseling center), or a date by which something will happen, both say it and provide it in writing.
Most recipients will use a form that sets out the supportive measures offered, but it is a good idea to leave space for the complainant to ask for measures outside of those offered. The person in trauma is the expert in what he or she needs. However, because of the stress he or she is likely experiencing, the complainant may not immediately think of all that is needed. The form should inform complainants how to ask later for additional measures or a change in measures. Finally, it is worthwhile to build into the process a follow-up check with the complainant to assess whether the supportive measures are effective and if any modification is needed. The form should ask complainants how they would like to receive the check-in (by phone, email, or text), tell them how to change their information, and give them the option to decline a check-in altogether. Some complainants may wish to set up a separate email account solely for purposes of communicating about the Title IX process, so that they aren’t surprised with a reminder of a difficult experience popping into their email inbox on an otherwise good day.
The supportive measures a recipient provides can make a tremendous impact on the healing of those who have experienced a traumatic event. They also help to preserve the trust relationship between the complainant and the institution. When institutions treat people with compassion, respect, and support, they gain loyalty, higher effort and performance, and greater satisfaction. (See, e.g., C. Ashley Fulmer and Michele J. Gelfand, “At What Level (and in Whom) We Trust: Trust Across Multiple Organizational Levels,” Journal of Management Vol. 38 No. 4 (July 2012) at 1168 (collecting study results; citations omitted)) A robust process for provision of supportive measures will yield positive results for the institution and for the individuals involved in the Title IX process.