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How Violence Risk Assessment Can Support the Title IX Process

By: Brett A. Sokolow, Esq. President, ATIXA

A set of recent questions about Violence Risk Assessment (VRA) from an ATIXA member offer a great opportunity to explore this topic further. That exchange is reprised here, in Q&A style. The context of the conversation is that the 2020 Title IX regulations require colleges and schools to make an individualized assessment of risk before suspending a student on an emergency basis. Title IX Coordinators are recognizing that they’re not equipped for that kind of assessment, but often have access to a school or campus behavioral intervention or threat assessment team who does.

How then, does the Title IX Office make the best use of and operationalize the VRA process?

Q: Hi Brett, I’m a Title IX Coordinator and today I completed the Violence Risk Assessment training that ATIXA offered jointly with NABITA. I honestly thought it was super helpful, for me personally, as I have zero background with behavioral intervention and threat assessment. The presenters Scott Lewis, Brian Van Brunt, and Makenzie Schiemann were great. But, I still am confused on a couple of points. First, I get that Title IX Coordinators can make great use of existing campus or school behavioral intervention teams (we call ours the CARE Team) to perform violence risk assessments on incidents that are reported to the Title IX Office. What I need to understand is whether we should automatically refer every case to the CARE Team, or whether I should develop a triage mechanism? 

ATIXA Responds: College and school Title IX Coordinators should develop a threshold for mandating a VRA by the Title IX Office. Referring every complaint for a VRA is unnecessary because every complaint doesn’t indicate the ongoing risk of harm or violence that the VRA is intended to assess. For example, slightly sexualized comments or innuendo alleged as harassment don’t indicate a risk of violence. A complaint that “my boyfriend got mad and pushed me once, but I was fine” might indicate minor violence, but not necessarily an ongoing risk of harm. While there is some risk in making the call as to what is eligible for a VRA and what is not, administrators are called on to use this type of judgment all the time. The referral to the CARE Team for a VRA cannot be arbitrary, and should be criteria-driven. As was discussed in the training, you can using a version of the NABITA Risk Rubric for that purpose. Where you’re in the low/moderate range, you won’t triage the VRA, but as the risk factors match to elevated/severe, that’s the threshold where the referral is within the standard of care.

Q: There is this idea that a VRA cannot be completed until a formal complaint has been signed…I don’t think that’s true. Do you?

ATIXA Responds:  No, a formal complaint is not required. This is a safety function, thus cannot depend on whether someone complains. The preamble to the regulations on page 755 says “We reiterate that a § 106.44(c) emergency removal may be appropriate whether or not a grievance process is underway.” Also note this section of ATIXA’s One Policy, Two Procedures (1P2P) Model: “The Title IX Coordinator has ultimate discretion over whether Recipient proceeds when the Complainant does not wish to do so, and the Title IX Coordinator may sign a formal complaint to initiate a grievance process upon completion of an appropriate violence risk assessment.” 

Q: Obviously, today’s training was mostly focused on the Section 106.45 emergency removal which is great, but the presenters mentioned that the VRA has many other applications to the Title IX process. Such as?

ATIXA responds: The results of the VRA will specifically inform the questions below. Coordinators should direct some of these questions specifically to the assessor who performs the VRA, to respond
to as part of their assessment.

  • Whether the Title IX Coordinator should pursue/sign a formal complaint absent a willing/able Complainant. This is tied to the emergency removal. Any time that emergency removal threshold set by the regulations is met, the Title IX Coordinator should likely also be willing to sign the complaint, because the risk is such that the institution is compelled to try to proceed.
  • Whether to put the investigation on the footing of incident and/or pattern and/or climate. The VRA may indicate the potential for pattern looking backward, and if so, that indicates a need to broaden the investigation beyond the single incident complained of.
  • To help identify potential predatory conduct. The VRA can help to assess whether there is intentional targeting, isolating, intentional incapacitation of someone, deprivation of defenses, etc., that may indicate predation.
  • To help assess/identify grooming behaviors. The VRA can help to identify these precursor behaviors, especially a pattern of them, that indicates a possible modus operandi to enhance or exploit the vulnerability of the target.
  • Whether it is reasonable to try to resolve a complaint through informal
    resolution, and what modality may be most successful. A significant finding on a VRA means that informal resolution is unlikely to be a safe, reasonable, or successful option.
  • Whether to permit a voluntary withdrawal from the institution by the respondent. A significant finding on a VRA may make it dangerous/unethical to allow withdrawal without a finding.
  • Whether to impose transcript notation or communicate with a transfer institution about a respondent. A significant finding on a VRA may make it dangerous/unethical to fail to note the misconduct on the transcript or fail to communicate the risk to a transferor institution.
  • Assessment of appropriate sanctions/remedies to be applied post-hearing. The VRA may help to inform what sanctions can most effectively avoid future harm.
  • Whether a Clery Act Timely Warning, trespass order, or a persona non-grata order is needed. The VRA results may help to indicate whether a threat to the community exists, thereby triggering the Clery Act duty to warn for a college. Usually, if something is serious enough to trigger an emergency removal, it’s serious enough to warn about, unless the removal mitigates the on-campus nature of the threat. Sometimes it will,
    but other times, the campus might still be at risk, even if a respondent is excluded from the community. Work with your police department to assess the need for a Clery Act Timely Warning, trespass order, or a persona non-grata order.