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Month: January 2016

Legal Developments: Addressing Campus Sexual Assault in 2016
Posted by On Friday, January 22, 2016

The level of legislative activity to address campus sexual assault in 2015 reflects the national concern surrounding this problem. And the intense focus on Title IX compliance and prevention programs now includes K-12 schools. These signs indicate that the law will continue to evolve with new strategies to address campus sexual violence in 2016.

This post contains a rundown of significant legal developments in 2015 and what to watch for in 2016 that may have direct and indirect implications for preventing and handling cases involving sexual and interpersonal violence committed against students. For a more detailed discussion of recent state laws, download our white paper.

OCR Investigations

At the end of 2015, 159 colleges and universities and 63 K-12 schools were under investigation by the U.S. Department of Education’s Office for Civil Rights. The Chronicle of Higher Education’s Title IX investigation tracker lists 243 investigations opened since the OCR’s 2011 Dear Colleague Letter. And the OCR’s 2016 budget was increased by $7 million for additional enforcement staff.

With a growing list of K-12 investigations, colleges and universities are not the only targets of Title IX complaints and OCR investigations. For example, Know Your IX, a non-profit organization founded by student survivor activists, provides a self-described “one-stop-shop, information-rich website” that has added a Title IX toolkit for high school students.

There is no question that the number of OCR investigations has grown since the OCR issued its 2011 Dear Colleague Letter, which Catherine Lhamon, Assistant Secretary of the OCR, told a Senate Committee is “an explanation of what Title IX means.”

Challenging the OCR’s investigatory authority, Senator James Lankford (R-Oklahoma), Chairman of the Subcommittee on Regulatory Affairs and Federal Management, last week sent a sharply worded letter to Acting Secretary of the U.S. Department of Education, John B. King, Jr. In his letter, Senator Lankford argues that the OCR guidance letters were not created through the notice-and-comment procedures required by the Administrative Procedure Act.

Therefore, Lankford requests “specific statutory and/or regulatory language that, in your view, the [2010 and 2011 Dear Colleague] letters interpret or construe . . . no later than February 4, 2016.” To the extent that they create compliance obligations beyond existing statutory or regulatory language, Lankford demands that “failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.”

High School Prevention Programs

New federal and state laws acknowledge that prevention and awareness programs must start before students arrive on college and university campuses. On December 10, 2015, President Obama signed into law the Every Student Succeeds Act (ESSA, S. 1177), which will start to take effect during this next school year. The ESSA allows public K-12 schools to use Title IV grant funds for training on safe relationship behavior, including affirmative consent and sexual assault prevention.

In addition, as of January 1, 2016, California public high schools must cover sexual and interpersonal violence and harassment awareness and prevention in their health education curricula.

In Michigan, both the House and the Senate have passed identical bills requiring public high schools to teach students affirmative consent standards. The bills have not yet been signed by the governor.

New Laws, Pending Bills, and ALI Guidelines

For higher education institutions, at least 29 state legislatures considered campus sexual assault legislation in 2015 (new state laws are discussed in our white paper), and the 114th Congress will continue its debate of four pending federal bills in 2016: the Campus Accountability and Safety Act (CASA), the Hold Accountable and Lend Transparency Campus Sexual Violence Act (HALT), the Safe Campus Act, and the Fair Campus Act. Each of these bills addresses how colleges and universities handle reports of sexual violence, and the co-sponsors of the CASA bill (turned into the “Senators of Steel” by Marvel) predict that its provisions will be included in the Higher Education Reauthorization Act when it comes up for a vote in 2016.

Recognizing this emerging maze of legislative solutions, the American Law Institute has assembled a team to help address the unique problems facing the higher education community in disciplinary proceedings. ALI describes its mission as “producing scholarly work to clarify, modernize, and otherwise improve the law.”

Members of the ALI team say they bring “a sense of expertise, professionalism, and balance to that kind of debate” and “can help take the politics out of a politicized issue.” The team includes college leaders, victim advocates, and legal experts, including an OCR lawyer. This project will create guidelines and best practices for addressing campus sexual assault to create a process that responds fairly and effectively to complaints. Suzanne Goldberg, a clinical professor of law and executive vice president for university life at Columbia University, and a primary author of the preliminary guidelines, says the ALI team is proceeding with “a sense of urgency.”

Meanwhile, state legislators grew impatient waiting for federal legislation, taking matters into their own hands. The recent NASPA report analyzed recent state action and identified four primary legislative policy themes:

  • defining affirmative consent
  • the role of local law enforcement
  • transcript notation
  • the role of legal counsel

For a list of important state legislative action in 2015 that will shape how campus sexual assault cases are handled in 2016 and beyond, download our white paper on new state laws and pending bills.

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A Response from CampusClarity to the Campus Reform Article
Posted by On Tuesday, January 12, 2016

In response to the numerous questions CampusClarity received today regarding an article published in Campus Reform, we’ve published a detailed Q&A document that addresses the questions, comments, and concerns.

CampusClarity, a division of LawRoom, provides training to over 500 colleges and universities across the country. Think About It is our online training course based on extensive research and expert participation that educates students about sexual violence and substance abuse prevention. Presently, the course has been taken by over 1 million undergraduate and graduate students. Think About It helps schools meet their compliance requirements under Title IX and the Campus Save Act.

As part of Think About It, schools have the option of including surveys that ask students about their behaviors, attitudes, and beliefs regarding sex and substance use. Schools can use data from these questions to tailor campus programming to the unique needs of their student body.

While the course may be mandatory in some schools, the questions are not. Every question includes a “no comment” answer option that students can select if they do not wish to respond to the question. Individual students are not connected to their answers — the data are de-identified.

The following addresses many of the questions we received in response to the January 12th article.

Are USC students required to detail sexual history before registering for classes?

No. USC, like many other campuses, chose to require students to complete Think About It in order to register for classes, but students were not required to answer the survey questions, including those related to sexual history.

Schools have the option of including short surveys that are interspersed throughout the course. In these surveys, students are asked about their behaviors, attitudes, and beliefs regarding sexual activity and substance use. But students can choose not to answer these questions.

Are the questions mandatory?

No. Every question has a “no comment” option if students do not wish to answer.

Why are the questions asked?

By showing students’ attitudes, beliefs, and behaviors around intimacy and substance use, the data from these questions allow schools to better tailor their prevention programming to the unique needs of their student population.

Are students’ identities connected to their answers?

No. Answer data is de-identified and aggregated. No one can see how an individual student responded to the survey questions. School administrators can only see how students have answered in the aggregate. We take privacy very seriously.

You can read more about the personal questions and privacy in our white paper on the topic: http://www.lawroom.com/Brochure/TAI_questions.pdf

Is the training mandatory?

The Campus Save Act mandates that schools offer training to their students on sexual violence prevention. Additionally, in its Title IX FAQ, the Department of Education’s Office for Civil Rights recommends schools offer “age-appropriate training to its students regarding Title IX and sexual violence” (J-4). We provide different versions of the course for graduate students, adult learners, and undergraduates.

In short, schools must offer the training but do not have to mandate the training. Many schools, however, do require students to complete it because of the importance of these issues to the health and well-being of their students.

Why do schools offer the training?

Schools offer training in order to help empower students to make safe and healthy choices around intimacy and substance use. The training also helps schools comply with Federal regulations, specifically Title IX and the Campus Save Act.

How is consent defined in the course?

State-specific legal definitions of consent to sexual activity and criminal sexual assault are included in the courses, so a student can read summaries of the relevant state laws, as well as the statutes themselves on a range of laws related to sexual violence.

In California, for instance, the page on consent includes both the criminal law definition and the affirmative consent standard most California colleges and universities are required by law to use in campus disciplinary proceedings involving sexual assault.

Including both of these definitions in the training helps students understand the difference between the affirmative consent standard in campus policies and criminal law definitions of consent to sexual activity that apply in a court of law. The training programs present both definitions to explain these different standards and put them in the proper context.

Providing legal definitions also helps schools comply with the Campus Save Act, which requires schools to inform their students of the definitions of stalking, dating violence, domestic violence, and sexual assault in the applicable jurisdiction. We maintain summaries of the relevant state statutes defining these terms for all 50 states and the District of Columbia, and the applicable statutes are included in each school’s courses.

Schools also include their campus sexual misconduct policies in the course, which students must read and acknowledge before completing the course.

In addition, the course provides general guidelines to help students get and give consent. You can watch a video on consent from Think About It on Youtube here:  https://www.youtube.com/watch?v=laMtr-rUEmY

What if the discussion of consent is inconsistent with the schools’ policy?

Schools can customize the content of the course in order to fit their policy and campus culture.

All schools include their policy in the course, which students must read and acknowledge.

Does the course talk about how alcohol affects someone’s ability to give consent?

Yes it does.

This topic is important to discuss as is suggested both by research and guidance on Federal regulations.

For example, the Department of Education’s Office for Civil Rights recommends in the Title IX FAQ  that training for students include information “on consent and the role drugs or alcohol can play in the ability to consent” (J-3).

Similarly, one of the primary conclusions of the Campus Sexual Assault Study completed in 2007 for the National Institute of Justice was to “[c]ombine sexual assault prevention education with alcohol and drug education programming” (xviii).

As indicated in the video linked to above, an individual who is incapacitated cannot give consent. This reflects most schools’ policies, many states’ laws, and the Department of Education’s Office for Civil Rights definition of sexual violence in their Title IX FAQ: ” Sexual violence, as that term is used in this document and prior OCR guidance, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent)” (emphasis added A-1).

(For more information see our blog post on the topic here.)

Does the course say if a man and woman are both drunk and have sex then the man is always to blame?

No it does not. And it is disturbing that someone could draw this conclusion from the course.

In the article, a student who took the course said the following: “In one scenario both the man and the woman were drunk but the video still blames the male for the assault. I found that a little confusing,”

It is deeply concerning that the student found this portion of the course confusing.

Here is a summary of the scenario the student is most likely referencing.

A man and a woman have been drinking together. Later they start kissing. The woman decides to stop and pushes the man away. She tells the man that she wants to go home because she is feeling sick from the alcohol she drank. The man convinces her to stay, she passes out, and the man then has sex with her while she is unconscious. This is rape. The woman is incapacitated from alcohol and is unconscious when the man has sex with her.

The reason the man is to blame is because he rapes her while she is unconscious. It does not matter that he has also been drinking. As mentioned in the course “being drunk doesn’t release anyone from legal or student conduct responsibility.”

Conclusion

We believe preventing sexual violence is an important and complex issue, and welcome feedback and suggestions.

To learn about the program used at USC and over 500 colleges and universities across the country click here and here.

If you have any questions please contact us at talkaboutit@campusclarity.com

If you are a member of the press, please contact us at press@lawroom.com

 

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3 Predictions for Data Security and Higher Ed in 2016
Posted by On Tuesday, January 5, 2016

In tomorrow’s college classroom, data security training will sit front and center.

Technology is reinventing education, and schools are producing unprecedented amounts of data to teach and manage their students, staff, and faculty. Technology is already helping schools control costs, improve student retention, and personalize learning.

We can expect these trends to continue, especially as flipped classrooms and blended and online learning continue their rapid spread. Over 70% of academic leaders reported that online learning is critical to their institution’s long-term strategy, according to the Babson Survey Research Group. And though the hype around MOOCs (massive open online courses) has faded, they’re more popular than ever.

Further developments are on the horizon, including learning analytics, adaptive learning, and location intelligence.

These technologies are reshaping the learning and teaching process. But they also make colleges and universities attractive targets for hackers and make data breaches a bigger danger than ever.

Colleges and universities are in an unusual position when it comes to data security. Not only are they regulated by laws like FERPA (Family Educational Rights and Privacy Act), but they must also find a way to balance their commitment to academic freedom with the need to protect their data.

As David J. Shaw, the chief information security officer at Purdue University, told The New York Times, “A university environment is very different from a corporation or a government agency, because of the kind of openness and free flow of information you’re trying to promote.”

(Learn about higher education’s unique data security challenges in our data security white paper.)

Higher education leaders are certainly aware of the data security challenges they face. The Center for Digital Education recently surveyed higher education leaders about data security:

  • 72% think data breaches are one of their greatest concerns
  • 73% say cybersecurity is a high or very high priority among their other technology priorities
  • 70% expect spam and phishing to be a major threat in the next 12 months

Thinking about the growing role of technology (and data) in the classroom, here are three data security issues in higher education we expect to trend in 2016.

1.) More Data Will Mean More Problems

With new technologies come new concerns — especially around privacy and data security. Many emerging technologies rely on big data — so much data that Kathleen Styles, the Education Department’s chief privacy officer, recently called colleges and universities, “Data Factories.”

As Styles explains in a blog post on privacy and new uses of data, “The combination of new technologies and new uses of data create today’s cutting-edge privacy issues, including ‘Big Data,’ matching with wage data, data sharing in general, the use of analytics, cloud computing, MOOCs, and school use of web engagement tools.”

Higher education institutions create and consume a particularly broad range of information from educational, employment, and medical records to intellectual property, research data, and sensitive financial information.

Besides the privacy issues, all these data make colleges and universities attractive targets to hackers, hacktivists, and even state-sponsored cyberespionage.

The Ponemon Institute, which conducts independent research on data security, estimates that cybercrime costs the education industry an average of $3.89 million annually. Between 2010 and 2015, a total of 314 data breaches occurred at US educational institutions, exposing 7,852,750 records. In 2014 the education industry experienced 10% of total data breaches in the US, according to Symantec.

Privacy concerns around data collection forced one educational technology company to shut its doors in 2014, and in 2015 we saw a major university allegedly targeted by nation-state hackers for its research. We can expect more stories like these in 2016.

2.) BYOD Will Become Bring Your Own Everything

To promote the free flow of information, college and university networks often must accommodate numerous private devices — think of all the new students arriving each year with their smart phones, laptops, tablets, etc.

A survey conducted by Bradford Networks found that 85% of educational institutions have some form of BYOD policy (bring your own device). And these aren’t just for personal use: 52% of respondents said devices are integrated into the classroom experience.

Over 75% of surveyed institutions allowed faculty to use personal devices to access the school network, 72% allowed students, and 57.5% allowed all other staff and contractors to do the same.

The use of personal devices is so ubiquitous on campuses that one expert has suggested a new acronym: BYOE or Bring Your Own Everything.

And it looks like the current flood of devices is only priming the pump.

In its 2015 Horizon Report, The New Media Consortium (NMC), in collaboration with EDUCASE Learning Initiative, predicts schools will encourage more students to bring their own mobile devices into the classroom.

That’s just the near term! NMC expects wearable technologies to be classroom staples within the next two to three years and the internet of things to arrive in classrooms in the next four to five years.

Each device presents a potential security risk to an institution, a way for data to leak out or an avenue for malware to sneak in. Unsurprisingly, colleges and universities’ security performance drops during the academic school year with the influx of new students and their new devices.

It will be interesting to see how schools balance their desire to promote learning and the exchange of information with the need to secure their networks. One thing is certain: BYOE will be a challenge in 2016.

3.) IT Will Be Treated as a Behavioral Science

Most higher education leaders are confident in their security measures. What they report as their number one pain point is user adherence to policies.

In other words, users — not the technology — are the issue.

This situation isn’t unique to higher education. As we are fond of quoting, according to Marc Van Zadelhoff, the VP of IBM Security, 95% of data breaches or cyberattacks involve “mistakes by those with access to a company’s systems.”

But higher education’s unique balancing act of access and security can make technological solutions to data security particularly difficult to implement, forcing institutions to rely even more heavily on the good sense and cyber-hygiene habits of their employees and students.

Fortunately, schools can address employee habits and practices through training. These kinds of solutions may actually be well adapted to the higher education environment, since they can promote users’ sense of responsibility and autonomy. Online data security training, for instance, can help schools teach employees best practices while still respecting the free flow of information.

The human element in data security gained some prominence this year when Cisco released a new security manifesto. One of the manifesto’s core principles is that “security must be viewed as a ‘people problem’.”

The manifesto explains, “A technology-centric approach to security does not improve security; in fact, it exacerbates it. Technologies are merely tools that can enhance the ability of people to secure their environment. Security teams need to educate users…People, processes, and technology, together, must for the defense against today’s threats.” (See our post on CTOs and data security training for more.)

Or as Werner Boeing, the CIO of Roche Diagnostics, puts it, “People believe that IT is about technology, but it’s really a behavioral science — understanding the behaviors of your company’s staff, leaders, and customers — and facilitating the adoption of a new vision.”

In 2016, expect to see more discussion of data security as a people problem and the role of cybersecurity training as an essential complement to technological solutions.

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