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Author: Karen Peterson

FERPA Compliance and Sexual Assault
Posted by On Thursday, June 2, 2016

The administrative burden placed on colleges and universities across the nation by the Family Educational Rights and Privacy Act (FERPA) “must not be understated,” and FERPA has been described this way: “the law was enacted hastily, poorly written, and, from its adoption, has begged review.” Salzwedel, M. & Ericson, J. “Cleaning Up Buckley.” Wisconsin Law Review, 2003: 1053, 1065. The stakes are also high: federal funds may be withdrawn from a school that has a “policy or practice” of releasing a student’s education records.

A recent case emphasizes the complexity of applying FERPA regulations and the importance of FERPA training. In an op-ed piece in the New York Times Magazine, Jon Krakauer, author of Missoula: Rape and the Justice System in a College Town, described his lawsuit against Montana’s Commissioner of Higher Education to force the release of education records from a disciplinary proceeding involving sexual assault allegations against a University of Montana football player.

But the issues involved are broader than Krakauer’s research for a new book. The US Department of Education filed an amicus brief in the Krakauer case to clarify FERPA principles at issue in the case, and journalists and news media organizations filed an amicus brief to defend freedom of the press.  Krakauer’s lawsuit challenges the school’s interpretation of FERPA — the University claims FERPA prohibits disclosing the football player’s private education records. Krakauer’s case was heard by the Montana Supreme Court on April 27th and the court’s decision will provide a rare high court interpretation of the labyrinth of FERPA regulations which school administrators, faculty, and staff must wade through.

The Department of Education’s amicus brief also argued that is has a “strong interest” in UM’s compliance with Title IX, noting UM’s 2013 resolution agreement with the Office for Civil Rights. In its 2014 Q&A on Title IX as well as the 2001 Revised Sexual Harassment Guidance, the Department pointed out the relationship between FERPA and Title IX regarding information about the outcome of a sexual harassment complaint and the due process rights of accused individuals.

Together with Title IX training, educating employees about basic FERPA principles allows them to recognize FERPA issues when handling education records, protecting student privacy rights, and helping schools comply with both their FERPA and Title IX obligations in a wide range of school activities.

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OCR’s UVA Title IX Findings and Resolution
Posted by On Wednesday, May 11, 2016

As schools wind down the 2015-2016 academic year and plan for 2016-2017, it’s an opportunity to look back at how Title IX policies, procedures, and prevention programs can be improved for effectiveness and Title IX compliance. To help guide this effort, it’s instructive to look at the Department of Education’s Office for Civil Rights’ resolution agreement with the University of Virginia, which is the most recent real case study of Title IX compliance. While the OCR found that UVA’s sexual assault and sexual misconduct policies violated Title IX, UVA’s revised policies and procedures for investigating and resolving reports of sexual harassment and violence have the OCR’s stamp of approval.

From the OCR’s UVA investigation and guidance documents, we’ve compiled the following list of essential steps to achieving Title IX compliance and increasing campus safety.

Title IX Coordinator

In April 2015, the OCR issued a Dear Colleague Letter reminding schools that receive federal financial assistance to designate at least one employee who has the time, training, and authority to address complaints, as well as coordinate and oversee the school’s efforts to comply with Title IX and related laws. The DCL states that this Title IX coordinator should report directly to “senior leadership,” such as the college or university president, to avoid any conflicts of interest. Schools should not designate persons with other job duties that may interfere with their ability to fair and impartial. Another takeaway from the DCL is that interfering with a Title IX coordinator’s efforts to do their job violates Title IX’s anti-retaliation provision.

A Letter to Title IX Coordinators was also issued with a Resource Guide explaining their responsibilities and authority. These documents emphasize the importance of each school having a dedicated person who has the necessary training to coordinate responses to all reports and complaints raising Title IX issues.

Title IX Policies

The Resource Guide emphasizes that Title IX coordinators play an important role to ensure a nondiscriminatory environment. Specifically, the OCR recommends that Title IX coordinators should be involved in drafting and revising a school’s Title IX policies and grievance procedures to make sure they:

  • Explain prohibited behavior and conduct proceedings in plain English
  • Define prohibited behavior the same across all policies
  • Encourage reporting

Additionally, policies and procedures should be made available in places where they are easily found, applied uniformly in all cases involving sexual/interpersonal harassment or violence against students, and reviewed at least annually, and sooner if laws change.

The White House Task Force’s Resource Guide and notalone.gov provide checklists and model definitions of prohibited conduct.  In addition, the Association for Student Conduct Administration offers these recommendations:

  • Define consent and incapacitation (intoxicated vs. incapacitated)
  • State that students or the institution may initiate a complaint
  • Do not place time limits on filing a complaint
  • Encourage reporting by including an amnesty policy for conduct violations involving alcohol or drugs at or near the time of the incident

Grievance Proceedings

The OCR’s Q&A states that provisions for “adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and alleged perpetrator to present witnesses and evidence,” should be included in a school’s grievance procedures.  And Title IX requires schools to “adopt and publish grievance procedures providing for the prompt and equitable resolution of student and employee sex discrimination complaints.” (OCR on Title IX and Sexual Violence, C-1)

A school’s resources and support, not Title IX, determine the most appropriate adjudication model to determine the facts of a case. The most common models are:

  • Single investigator
  • Administrative or panel hearing
  • Hybrid of hearing and single investigator models

Appearance of Conflict of Interest

In the OCR’s UVA Letter of Finding, it found an “appearance of a conflict of interest” based on the multiple roles played by a key individual in the panel hearing process: “the same individual went from being tasked under the [Sexual Misconduct Policy] to ‘identify forms of support or immediate interventions’ for the complainant to being a neutral decision-maker, and then to possibly defending a decision of the [Sexual Misconduct Board] Panel on appeal.” UVA LOF, p. 15)

Since most of these cases involve “he said-she said” situations with alcohol or drug impairment, it is critical that decisions are made by  persons who are impartial and trained in the complexities of sexual assault, where the effects of trauma can affect victims’ reactions and ability to recall details. The Association for Student Conduct Administration has put together a list of training topics for adjudicators and hearing board members. (See ASCA’s Student Conduct Administration & Title IX: Gold Standard Practices for Resolution of Allegations of Sexual Misconduct on College Campuses, Appendix A.)

It is interesting to note that the Commonwealth of Virginia is considering a system of resolving sexual assault cases outside of universities made up of impartial trained investigators, which was first proposed by John Banzhaf, a public interest law professor at George Washington University.

While OCR guidance and court orders don’t provide specific answers, they provide guidelines that allow flexibility to address misconduct in a way that reflects your student population and administrative resources, as long as the response is prompt and impartial.

Prompt and equitable

When evaluating policies and procedures, the OCR looks for these critical elements to meet the “prompt and equitable” standard for Title IX compliance:

  • Notice to students and employees of the procedures, including where complaints may be filed;
  • Application of the procedures to complaints alleging discrimination and harassment carried out by employees, other students, or third parties;
  • Provision for adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and respondent to present witnesses and other evidence;
  • Designated and reasonably prompt timeframes for the major stages of the complaint process;
  • Written notice to both parties of the outcome of the complaint and any appeal; and
  • Assurance that the recipient will take steps to prevent recurrence of any sex discrimination or harassment found to have occurred, and to correct its discriminatory effects on the complainant and others, if appropriate. (OCR’s UVA LOF.

Basically, if a school’s policies and procedures contain these Title IX elements they also satisfy due process requirements afforded to students attending public institutions, which require:

  • Written notice of the allegations and nature of the evidence; and
  • A fair opportunity to present the student’s position, explanations, and evidence.

We’ve previously written about due process requirements, including the differences between conduct proceedings vs. criminal trials, and the right to cross-examine witnesses. As pointed out in our post, the OCR’s position on allowing the accused to question adverse witnesses through the hearing officer – but not direct cross examination – does not violate constitutional due process.

Campus Climate Surveys

In order to inform these policies, procedures, and prevention programs each school should conduct an annual “climate assessment” to gather data from students about incidents of sexual harassment and violence, find ways to encourage reporting, and develop prevention strategies that meet the needs of your campus community. The primary goal of the AAU climate survey was to inform policies to prevent and respond to sexual assault and misconduct.

In addition to informing policies and creating effective prevention strategies, conducting campus climate surveys provides critical data for allocating resources, which we have written extensively about on this blog. And the OCR has required climate surveys in several resolution agreements: University of Virginia, Michigan State University, Ohio State UniversityUniversity of Montana, Southern Methodist University, Lehigh University, Harvard Law School, Lyon College, Virginia Polytechnic Institute and State University, University of Dayton, Cedarville University, Glenville State College, Kentucky Wesleyan College, State University of New York, Rockford University.

Conclusion

Every college and university has a unique student population with its own culture and complexity. Our goal at CampusClarity is to provide useful information to help all schools reach a common goal:  create policies, procedures, and prevention programs that eliminate sexual harassment on campus, off campus, and online.

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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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When Civil Liberties Collide With Civil Rights
Posted by On Wednesday, October 14, 2015

The First Amendment protects the free exchange of ideas in public schools at every level of education, and Title IX protects a student’s right to learn in a hostile-free environment at all federally-funded schools. When Title IX collides with the First Amendment, it requires schools “to mediate the tension created by the collision of rights.”

One former college administrator framed the issue this way: “Academic freedom is about education. When hostile behavior gets in the way of the educational process, academic freedom must give way to equal opportunity.”

In this post, we’ll explore the difficult balancing act required to protect these two fundamental values in an educational environment. School policies play an important role in these cases. As we’ll see, legally sound sexual harassment policies are critical to mediating this tension and avoiding lawsuits.

OCR and SCOTUS on Title IX and Free Speech

When Title IX complaints involve First Amendment issues they enter the realm of academic freedom, which the U.S. Supreme Court (SCOTUS) has deemed a matter of national interest. In two landmark decisions, the SCOTUS ruled that state laws violated the First Amendment because they prohibited teaching any subject except in English [Meyer v. State of Nebraska (1923) 262 U.S. 390], and required professors of public universities to sign a certificate that they were not Communists [Keyishian v. Board of Regents (1967) 385 U.S. 589].

In Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 511), the SCOTUS famously said that students in the public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker at 506). Since no substantial disruption of school activities was reasonably expected or actually occurred, adopting a school policy to prohibit students from wearing symbolic black armbands to protest the Vietnam War violated the students’ First Amendment rights.

However, the SCOTUS also concluded that high school educators did not violate students’ First Amendment rights when they refused to publish the students’ articles in the school newspaper—one describing students’ experiences with pregnancy and another discussing the impact that parents getting divorced has on students—based on “legitimate pedagogical concerns” [Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260].

In 1992, U.S. Supreme Court Justice Scalia explained that government restrictions on speech are not absolutely prohibited. And he noted that sexually derogatory “fighting words” in the workplace are not protected by the First Amendment:

Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices. [citations omitted] Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. [RAV v. City of St. Paul (1992) 505 U.S. 377, 389-390]

In 2003, the Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter to confirm that “There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment.” In other words, Title IX prohibits harassment that is serious enough to limit or deny a student’s educational opportunities, not speech that is protected under the First Amendment.

In its 1997 Sexual Harassment Guidance, the OCR describes the balance between a school’s Title IX obligations and the protection of academic freedom, which does not involve bright lines:

Overall, the Guidance illustrates that in addressing allegations of sexual harassment, the judgment and common sense of teachers and school administrators are important elements of a response that meets the requirements of Title IX . . . the resolution of cases involving potential First Amendment issues is highly fact-and context-dependent. Thus, hard and fast rules are not appropriate.

Since schools must address these issues on a case-by-case basis, next we’ll look at faculty and student conduct to illustrate some of the factors that help schools determine when civil liberties must give way to civil rights.

Unpopular and Offensive Content

A recent case made headlines when Northwestern Professor Laura Kipnis complained about her institution’s sexual harassment policies and found herself in the middle of what she called “My Title IX Inquisition.” Two students had filed a Title IX complaint for retaliation based on Professor Kipnis’s essay, “Sexual Paranoia Strikes Academe,” in which she wrote that the new sexual harassment policies “aren’t just a striking abridgment of everyone’s freedom, they’re also intellectually embarrassing. Sexual paranoia reigns; students are trauma cases waiting to happen.”

After an investigation, Northwestern found Professor Kipnis had not violated Title IX. As pointed out by Erin Buzuvis of the Title IX Blog, a Title IX violation requires severe or pervasive conduct that “would have to rise to the level of retaliatory harassment.” Additionally, Kipnis wrote about a matter of public concern. Without more, unpopular and offensive content about a matter of public concern does not violate Title IX.

In another case involving allegations of faculty-on-student harassment, Professor Silva used this example to gain his students’ attention: “Belly dancing is like jello on a plate with a vibrator under the plate.” Professor Silva said he was illustrating how to define concepts in a technical report by using a general classification and a simple metaphor. He was suspended from teaching a technical writing class.

However, the court found that Professor Silva was disciplined “simply because six adult students found his choice of words to be outrageous,” even though his example was used for a valid educational objective and was part of a college class lecture, and these were adult college students. Thus, the court concluded that using the school’s sexual harassment policy to discipline Silva’s classroom speech violated the First Amendment [Silva v. University of New Hampshire (USDC NH 1994) 888 F.Supp. 293].

A federal court found the definition of Temple University’s sexual harassment policy too broad because harassment was not qualified with a severe or pervasive requirement. Therefore, it could prohibit speech protected by the First Amendment [DeJohn v. Temple University (3d Cir. 2008) 537 F.3d 301]. The policy definition also prohibited “gender-motivated” conduct, which focused on the actor’s intent rather than the actual effect of creating a hostile environment that interferes with a person’s educational opportunities.

Another federal court rejected a student’s claim that Oakland University’s conduct code was too broad because the court concluded that the student did not engage in constitutionally-protected speech. The adult male student wrote “lascivious entries” in a Daybook assignment, expressing lust for his female English professor, which the court found this was not “pure speech,” as in Tinker. Nor was the student expressing his views on matters of public concern. The court concluded that “speech protected in other settings is not necessarily protected when made in response to a classroom assignment and when directed at one’s professor” [Corlett v. Oakland University (USDC ED MI 2013) no. 13-11145].

In summary, legally sound sexual harassment policies define the prohibited conduct consistent with the First Amendment and OCR’s sexual harassment guidance. The cases also provide these factors to help determine if a professor’s statements were protected speech, including: (1) the age and sophistication of the students, (2) the relationship between the teaching method and a valid educational objective, and (3) the context and manner of presentation.
And, finally, OCR also advises schools to seize a teachable moment:

[W]hile the First Amendment may prohibit a school from restricting the right of students to express opinions about one sex that may be considered derogatory, the school can take steps to denounce those opinions and ensure that competing views are heard.

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Are Climate Surveys Part of Title IX/Clery Act Compliance?
Posted by On Wednesday, September 9, 2015

On April 29, 2014, the White House Task Force issued its “Not Alone” report with an overview of how to plan and conduct a campus sexual assault climate survey, as well as a sample survey based on best practices. The report urges “schools to show they’re serious about the problem by conducting the survey next year.”

In a May 2015 article, “Climate Surveys Are Coming,” readers were told, “The task force’s suggestion that schools conduct climate surveys is one of several signals that surveys soon will be required as part of a Title IX/Clery Act compliance program.”

On the same day that the White House report came out, the Department of Education’s Office for Civil Rights issued the guidance document, “Questions & Answers on Title IX and Sexual Violence,” which listed conducting climate surveys as one of the ways to “limit the effects of the alleged sexual violence and prevent its recurrence,” if a victim requests confidentiality and does not want formal action taken against the alleged perpetrator.

Other signals that campus climate surveys soon may be mandated include OCR agreements resulting from Title IX investigations and compliance reviews that require schools to conduct surveys, including: Michigan State University, Ohio State University, University of Montana, Southern Methodist University, Lehigh University, Harvard Law School, Lyon College, Virginia Polytechnic Institute and State University, University of Dayton, Cedarville University, Glenville State College, Kentucky Wesleyan College, State University of New York, and Rockford University.

Instead of waiting for federal laws or Title IX guidance that mandate climate surveys, some states have already enacted laws requiring them:

  • Maryland House Bill 571 requires institutions of higher education to “DEVELOP AN APPROPRIATE SEXUAL ASSAULT CAMPUS CLIMATE SURVEY, USING NATIONALLY RECOGNIZED BEST PRACTICES FOR RESEARCH AND CLIMATE SURVEYS,” and submit to the Maryland Higher Education Commission on or before June 1, 2016 (and every two years thereafter), a report aggregating the data collected by the survey, including:
        1. Types of misconduct
        2. Outcome of each complaint
        3. Disciplinary actions taken by institutions
        4. Accommodations made to students
        5. Number of reports involving alleged nonstudent perpetrators
  • The New YorkEnough is Enough” law signed on July 7, 2015, requires all New York colleges and universities to conduct campus climate surveys at least every other year. The survey requirement goes into effect on July 7, 2016.
  • The State of Washington passed a new law (SSB 5518.SL), requiring state universities, the regional universities, The Evergreen State College, the community colleges, and the technical colleges to conduct a campus climate survey and report their findings to the governor and legislature by December 31, 2016.
  • Louisiana passed a new law (SB 255) which provides, “When funding is made available, each public postsecondary education institution shall administer an annual, anonymous sexual assault climate survey to its students.”
  • In addition, the Massachusetts legislature is considering Bill S. 650, which would create a task force to develop a sexual assault climate survey to be administered by colleges and universities selected by the task force.

Meanwhile, Boston University launched a student survey in March 2015 (see FAQs about BU’s survey) and, while not required by law, the University of California conducted a campus climate survey on its campuses in Spring 2013 (see results and FAQs). Previously, we’ve reported on published data from other climate surveys, what experts say, and how to get started.

With Congress back in session, the Campus Accountability and Safety Act may have gained some momentum from the July 29th hearing before the Senate Committee on Health, Education, Labor & Pensions. Testimony received at that hearing included strong support from the Association of American Universities for campus climate surveys, pointing out that it is important that schools directly or indirectly control survey administration so that it addresses the unique circumstances of individual campuses.

We will continue to watch this closely as the patchwork quilt of climate survey requirements continues to unfold. We will also be hosting a webinar on Tuesday, October 13th with Peter Novak from University of San Francisco and Jessica Ladd from Sexual Health Innovations about climate surveys and data.  Follow our twitter account @CampusClarity for the link to register as the date gets closer.

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CampusClarity/LawRoom Update Courses to Meet New York’s “Enough is Enough” Law
Posted by On Tuesday, July 28, 2015

On July 7, 2015, Governor Cuomo signed New York’s “Enough is Enough” bill into law, mandating uniform policies and procedures to address campus sexual violence across the state, including “student onboarding and ongoing education.” New York schools must have policies in place to comply with these new requirements by October 5, 2015. To help New York institutions of higher education educate campus communities about their rights and responsibilities under the new laws, CampusClarity and LawRoom have updated their courses.

Basically, the new legislation codifies sexual assault prevention and response policies already required for the 64 SUNY campuses, extending them to private colleges and universities with New York campuses to create a consistent statewide approach with campus policies that:

  • define consent as a clear, unambiguous and voluntary agreement to engage in specific sexual activity
  • grant witnesses and victims reporting in good faith incidents of sexual misconduct immunity from drug or alcohol conduct violations
  • provide a Bill of Rights to all students, informing them of their reporting options, available resources, and the right to a fair and impartial process that protects their privacy and dignity
  • require comprehensive training for all new students, including first-year or transfer, undergraduate, graduate, or professional

Our courses already cover federal training requirements under Title IX and the Campus SaVE Act, but our employee and student courses for New York schools will also cover the new state law requirements. Specifically, the following courses will address the additional New York requirements:

  • Think About It: versions for Undergraduates, Graduate Students and Adult Learners, as well as a shorter Campus SaVE Act version
  • Intersections (combined anti-harassment, Title IX, and Campus SaVE Act training for supervisors and non-supervisors)
  • Bridges (Title IX and Campus SaVE Act training for all employees)

These courses cover the following New York content:

  • statements of prohibition and equal protection
  • definition of affirmative consent
  • explanation of the students’ bill of rights and amnesty policy
  • additional procedures and protections required in conduct proceedings
  • the long-term costs of sexual violence

Contact us for detailed information on how our updated programs help New York schools provide mandated training that covers this material with high levels of instructional interactivity.

[UPDATE 8/28/2015]: Our webinar on updates to our courses that help meet the new NY requirements is now online: “Enough is Enough” addressing New York’s New Higher Education Requirements 

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Recent State Laws: From “Campus Carry” to “Enough is Enough”
Posted by On Tuesday, June 30, 2015

Our primary focus has been on federal legislation to address campus sexual violence, including the pending HALT and CASA bills, as well as the Violence Against Women Reauthorization Act of 2013 regulations that become effective July 1, 2015.

However, there have been a number of recent state law developments that pose additional challenges to many school administrators across the country. Below is a snapshot of some of the current state requirements for responding to and preventing campus sexual violence.

California
Previously, we reported on California’s “Yes Means Yes” law, which requires California’s colleges and universities receiving state funds for student financial aid to adopt a policy that defines what does and does not constitute consent to sexual activity. The law also has a July 1, 2015 deadline to have policies in place to ensure reports of violent crime, hate crime, and sexual assault received by campus security authorities are immediately disclosed to local law enforcement. To help schools comply with this requirement, California Attorney General Kamala Harris released a Model Memorandum of Understanding, which Harris said “will help break down silos between campuses and law enforcement agencies to provide sexual assault victims with the help they need and hold more perpetrators accountable.” This MOU adopts best practices for collaboration between school officials and law enforcement agencies, including: clarifying their respective duties following an assault, working together to connect victims to services, and providing regular training for campus and law enforcement communities.

Colorado
On May 4, 2015, Colorado Governor John Hickenlooper signed HB 15-1220, which requires agreements between public and private colleges and universities and medical or other facilities where sexual assault victims can receive medical and forensic exams. Schools also need to make transportation to these facilities and referrals to advocates available to victims, and have sexual assault training and response policies.

Connecticut
Over the past several months, Connecticut has enacted laws to:

  • allow an anonymous reporting option, and require annual reports to the legislature on the school’s policies, victim rights, crime reports, and the number of disciplinary cases with final outcomes (HB 2059)
  • require memoranda of understanding with community-based assault crisis service centers and domestic violence agencies (HB 6695)
  • require sexual assault forensic examiners to provide care and treatment to victims of sexual assault at school health care facilities (SB 966)

Connecticut Senate Bill 636 is currently pending, which would establish an affirmative consent standard similar to California’s to be applied in sexual assault and intimate partner violence cases.

Illinois
Both Houses of the Illinois legislature have passed HB 821, the Preventing Sexual Violence in Higher Education Act, requiring colleges and universities to adopt comprehensive policies to address campus sexual violence. If signed by the governor, this Act will require schools to provide survivors’ notification of their rights and options, confidential advisors, and emergency and ongoing support. In addition, schools would need to establish one procedure to resolve complaints and provide sexual violence awareness training and education.

Maryland
Effective July 1, 2015, HB 571 requires colleges to:

  • conduct climate surveys on or before June 1, 2016, and every two years thereafter
  • submit reports to the Higher Education Commission on sexual assault data gathered, including number of complaints received, disciplinary action taken, and victim accommodations made, beginning on October 1, 2016, and every two years thereafter
  • pursue agreements with local law enforcement and local rape crisis programs
  • provide amnesty from code of conduct violations for alcohol or drugs to students who make good faith reports of sexual assault and witnesses who participate in investigations

Effective October 1, 2015, Maryland SB 477 adds victims of dating violence (who have had a sexual relationship with the offender within the past year) to the list of persons eligible for protective orders that provide broader protection for a longer period of time.

Minnesota
Effective January 1, 2017, the Higher Education Omnibus Bill requires public and certain private institutions to adopt policies that:

  • allow victims to decide if their case is referred to law enforcement
  • protect victims’ privacy
  • provide health care or counseling services, or referrals to services
  • prohibit victim blaming and retaliation
  • grant amnesty from drug or alcohol conduct violations to students who make good faith reports of sexual harassment, including sexual violence
  • establish cooperative agreements with local law enforcement
  • establish an online reporting system that allows anonymous reports
  • train investigators and persons adjudicating sexual assault complaints
  • train students within 10 days after the start of a student’s first semester of classes
  • annually train persons responsible for responding to sexual assault reports
  • designate a staff member at student health or counseling centers as a confidential resource

New York
New York’s “Enough is Enough” bill has passed both houses and is expected to be signed by Governor Cuomo. This legislation codifies a sexual assault prevention policy already adopted by all 64 SUNY campuses, requiring public and private colleges and universities with New York campuses to adopt policies that:

  • define consent as a clear, unambiguous and voluntary agreement to engage in specific sexual activity
  • grant immunity for students reporting incidents of sexual assault or violence from certain campus policy violations, such as drug or alcohol use
  • provide a Bill of Rights to all students, informing them of their legal rights and available resources, including outside law enforcement
  • require comprehensive training for administrators, staff, and students

North Dakota
Effective August 1, 2015, Senate Bill 2150 was signed by North Dakota’s governor, making it the third state (see North Carolina General Statutes § 116-40.11 and Arkansas Act 1194) to allow students facing suspension or expulsion the right to be represented by an attorney or non-attorney advocate who may fully participate during disciplinary proceedings involving matters other than academic misconduct.

Oregon
Effective June 10, 2015, HB 3476 prohibits disclosure of communications with victims of sexual violence when they seek help from counselors and advocates unless the victim consents.

Effective January 1, 2016, SB 790 requires school districts to adopt policies that incorporate domestic violence education into training programs for students in grades 7-12 and school employees.

Texas
On June 13, 2015, Texas Governor Greg Abbott signed a “campus carry” bill into law, which allows students who are 21 or older to carry concealed firearms on public and certain private college and university campuses. Before the law goes into effect on August 1, 2016, Senate Bill 11 allows school administrators to designate gun-free zones on campus and establish rules for storing handguns in dorms and other residential facilities, but those restrictions may not generally prohibit students from carrying handguns on campus.

Virginia
Enacted April 15, 2015, SB 712 requires specific action when responsible employees receive information about sexual violence, including:

  • the information must be reported to the Title IX coordinator “as soon as practicable after addressing the immediate needs of the victim”
  • the Title IX coordinator must meet within 72 hours with the review committee, which includes representatives of law enforcement and student affairs
  • if the allegations involve felony sexual assault the law enforcement representative must consult with a local prosecutor within 24 hours (however, personally identifiable information about persons involved will not be disclosed unless it is necessary to protect the victim or others)
  • schools must have a memorandum of understanding with a local sexual assault crisis center or other victim support service to connect victim with those services

Additionally, SB 1193 enacted on April 30, 2015, requires schools to include a “prominent notation” on the academic record of anyone who is suspended or dismissed for a sexual violence offense, or withdraws while under investigation. However, the notation will be removed if the student completes the disciplinary action and is thereafter deemed a student in good standing.

Washington
Effective July 24, 2015, Washington’s SB 5518 requires:

  • all institutions of higher education to establish one disciplinary process for sexual violence complaints
  • four-year institutions to conduct campus climate surveys to assess the prevalence of campus sexual assault, evaluate student and employee attitudes and awareness of campus sexual violence issues, and make recommendations for addressing and preventing sexual violence on and off campus
  • report survey results to the legislature by December 31, 2016
  • report on steps taken to enter into memoranda of understanding with local law enforcement by July 1, 2016

The Washington Student Achievement Council will also work with schools to develop rules and guidelines to eliminate gender discrimination, including sexual harassment, against students.

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Three Takeaways From the OCR’s Guidance Package
Posted by On Wednesday, April 29, 2015

Without much fanfare, the Department of Education’s Office for Civil Rights issued a “Guidance Package” on April 24, 2015, which includes a Dear Colleague Letter (DCL), a Dear Title IX Coordinator Letter, and a Title IX Resource Guide. The three takeaways from the OCR’s Guidance Package are: (1) all primary, secondary, and postsecondary schools must have a Title IX coordinator; (2) Title IX coordinators must be given adequate authority and training to meet their obligations; and (3) interfering with a Title IX coordinator’s efforts to do their job violates Title IX’s anti-retaliation provision.

The DCL is a seven-page reminder that “all school districts, colleges, and universities receiving Federal financial assistance must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Title IX . . ..” Another significant guidance document—Questions and Answers on Title IX and Sexual Violence, released in April of 2014 — had already pointed out that designating a Title IX coordinator is one of three key procedural requirements in the Title IX regulations. This latest DCL leaves no doubt that this is not a matter of simply adding a title to someone’s long list of job duties:

This position may not be left vacant; a recipient must have at least one person designated and actually serving as the Title IX coordinator at all times.

An OCR spokesperson said that many schools currently under investigation do not have a Title IX coordinator. For example, Brown University just hired its first Title IX coordinator this month. Apparently, the OCR is lighting a fire under schools that have not yet taken this step.

The DCL lays out the Title IX coordinator’s responsibilities and authority, emphasizing that it is a Title IX violation to interfere with the Title IX coordinator’s performance of their job responsibilities:

Title IX’s broad anti-retaliation provision protects Title IX coordinators from discrimination, intimidation, threats, and coercion for the purpose of interfering with the performance of their job responsibilities.

To establish a strong and visible role in the community for the Title IX coordinator, the DCL encourages schools to create a prominent link on its homepage to a dedicated webpage with the Title IX coordinator’s contact information, Title IX policies and grievance procedures, and other resources related to Title IX compliance and gender equity.

To keep informed of the laws, regulations, and OCR guidance on campus safety, the DCL recommends regular training for Title IX coordinators and all employees whose responsibilities are related to the school’s Title IX obligations.

Also included in the guidance package is a Letter to Title IX Coordinators with a Resource Guide, which covers Title IX basics, as well as the Title IX coordinator’s administrative duties and role in helping schools meet their Title IX obligations. The letter contains this warning: “To be an effective Title IX coordinator, you must have the full support of your institution.”

As Catherine Lhamon, assistant secretary for civil rights, said in the OCR’s press release, “A critical responsibility for schools under Title IX is to designate a well-qualified, well-trained Title IX coordinator and to give that coordinator the authority and support necessary to do the job.”

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Court Finds School’s Failure to Train Employees Violates Equal Protection
Posted by On Friday, April 17, 2015

A recent decision by the U.S. District Court in Michigan applied “deliberate indifference for failure to train in light of foreseeable consequences” as the proper legal standard for determining a school’s liability for violating its student’s equal protection rights claim. The Court ruled that the student showed “the district’s complete failure to train its employees on how to respond to sexual assault complaints and sexual harassment was deliberately indifferent and caused her injury.”

On March 31, 2015, Chief Judge Paul Maloney issued a 38-page decision, concluding that failing to train school staff was a violation of students’ Fourteenth Amendment equal protection rights:

Because sexual assault claims arise frequently in the public high school context, it is certainly foreseeable that the failure to train school staff on how to handle such claims would cause disastrous results. The Department of Education has made it clear to school administrators that training and proper responses to sexual assault claims are required. . . . Just like failing to train a police officer on when to use his or her gun, failing to train a school principal on how to investigate sexual assault allegations constitutes deliberate indifference. It is inevitable that these situations would arise at some point, and the complex Title IX requirements virtually ensure that an investigation done without any formal training would be deficient. [Jane Doe v. Forest Hills School Dist. (USDC WDMI 2015) no. 1:13-cv-428]

Two and a half years earlier, the Department of Education’s Office for Civil Rights found the Forest Hills School District violated Title IX in its investigation of a sexual assault complaint.

The Facts of the Case*

Fifteen-year-old “Jane Doe” claims she was sexually assaulted after being forced into a band practice room by another student referred to as “MM.” Doe says she told two friends the next day what happened and they urged her to tell a teacher. Doe wrote a note and left it on her teacher’s desk. After reading the note, the teacher immediately notified a school counselor and the principal about Doe’s allegations.

Shortly after being notified, the principal interviewed Doe and “initially believed her due to her extreme emotional reaction,” and met with local law enforcement and Doe’s parents the next day. A police report was filed, and Doe had a forensic exam two days after the assault.

The principal and other staff members reviewed the school’s surveillance footage of Doe and MM walking around campus on the day of the alleged assault. Although there was no camera in the area where the alleged assault occurred, the principal and the staff members concluded that MM’s and Doe’s “demeanor and actions” on the tape did not support Doe’s report.

The principal also interviewed a cafeteria worker and two students who were near the band practice room around the time of the alleged assault, but they did not see or hear anything unusual. The principal did not, however, interview any of Doe’s friends who spoke to Doe the next day after the alleged assault occurred.

When the principal interviewed MM, he denied Doe’s allegations. The principal said he knew that MM had a history of disciplinary issues at school and had “heard rumors about MM being involved in some kind of sexual misconduct when he was younger.” However, the principal never followed up on those rumors, never requested or received a copy of Doe’s rape kit report, and “explained that his investigation was ‘pretty much done’ at that point.” Instead, he decided to wait for the police to come up with evidence supporting Doe’s story.

Two weeks after Doe’s report, another student reported she was sexually assaulted by MM in the school parking lot. MM was eventually transferred out of the class he shared with Doe, but Doe continued to eat lunch in the library since MM had the same lunch period, and she missed classes and after-school activities because she was being harassed by MM and other classmates.

Meanwhile, when Doe’s parents complained to the principal that MM continued to harass their daughter but the principal told them he couldn’t discipline MM without proof, so he was waiting for the police to provide evidence of the assault.

Finally, after MM pled guilty to misdemeanor simple assault charges, the district suspended MM from school for five days. The Court noted that during MM’s plea colloquy, he admitted engaging in sexual conduct with Doe that constituted criminal sexual conduct for which an adult could be punished by up to two years imprisonment.

Court’s Decision

As a bit of background, in 2009 the US Supreme Court ruled that students can sue schools for sex discrimination under both Title IX and the Equal Protection Clause in the Fourteenth Amendment of the US Constitution. While Title IX allows awards of compensatory damages, the Equal Protection Clause allows school officials to be sued individually and also provides for the recovery of punitive damages. [Fitzgerald v. Barnstable School Committee (USSCt 2009) no. 07-1125]

Doe sued for sex discrimination under Title IX, claiming an inadequate response to her complaint, and under the Equal Protection Clause, claiming a failure to train employees on how to respond to a student’s sexual assault complaint. Judge Maloney ruled that Doe’s Title IX claim should be decided by a jury, but decided in Doe’s favor on her equal protection claim because there was no factual dispute about the district’s complete failure to train school officials on how to handle sexual assault complaints.

First we’ll look at how the school responded to Doe’s sexual assault report and the factors that the Court found are relevant to determining whether the school’s response violated Title IX.

1. Inadequate Response

Even though the school district took steps to protect Doe — such as telling MM to stay away from her, offering counseling services to Doe, allowing her to park in a different parking lot, and offering to drive her home if she became overwhelmed — the Court concluded that a jury should decide if the school’s responses were merely negligent, or deliberately indifferent (i.e., its response was clearly unreasonable), because:

MM and other students harassed Doe for the remainder of the school year, and administrators merely “talked to” MM repeatedly; when this proved ineffective, the school should have done something different.

The District argued that they could not suspend or expel MM from school because there was no proof that the sexual assault actually occurred. Even when MM was accused of a second assault, the school did not change its response, leading the Court to conclude:

Forest Hills cannot escape liability due to its inability to conclusively substantiate Doe’s complaint to avoid its Title IX duties. Further, after the second complaint of an assault by MM, a jury could certainly find that the school was on notice that there was a risk to students. Apparently, at least arguably, the second report had no impact on the school’s response. [Emphasis in original.]

In fact, the Court pointed out the district seemed to require “nothing short of a signed confession or video tape of the alleged assault or subsequent harassment,” and noted that “Title IX imposes many duties on a school that must occur before a final investigation substantiates a complaint.”

The Court also pointed out that failing to follow Title IX guidance to resolve complaints is a factor in deciding deliberate indifference for Title IX liability. Here, the school did not allow the parties to present witnesses and evidence, nor did the school make a determination of MM’s responsibility within sixty days of Doe’s complaint. And, while “failure to comply with Title IX guidance does not, on its own, constitute deliberate indifference, it is one consideration.” [Emphasis in original.]

Thus, a jury will have to decide whether the school’s response to Doe’s sexual harassment complaint was deliberately indifferent and denied her access to educational opportunities or benefits, violating Title IX.

2. Failure to Train

Deciding the school was liable because it acted with deliberate indifference on Doe’s equal protection claim was not a close call for the Court. At their depositions, the superintendent admitted that the district did not train its employees on how to respond to sexual assault complaints, and the Title IX coordinator and the school principal both testified they still were not sure if Title IX applied in Doe’s case. In fact, the only Title IX training the district’s Title IX coordinator attended was five years before Doe’s assault.

Since “it is certainly foreseeable that the failure to train school staff on how to handle such claims would cause disastrous results,” the Court found that inadequate training was the result of Forest Hills’ deliberate indifference. The Court also found that “sexual assault claims arise frequently in the public high school context,” leading to this conclusion:

It is inevitable that these situations would arise at some point, and the complex Title IX requirements virtually ensure that an investigation done without any formal training would be deficient.

This left the Court to answer the difficult question of how a well-trained person would have handled Doe’s complaint to determine if inadequate training caused Doe’s emotional distress, psychological damages, and damage to her reputation.

Finding that school administrators did not act with bias or ill-will, the Court concluded that the administrators would have followed Title IX guidance on how to handle sexual assault complaints if they had been properly trained:

Thus, if school administrators had been trained properly, it is probable that they would not have waited for the criminal process to be complete before disciplining MM or relied so heavily on information from law enforcement. . . . Training concerning Title IX’s prohibition on retaliation against complainants may also have mitigated Plaintiff’s emotional distress and social ostracization. If the school had done an independent investigation and either punished or exonerated MM quickly, the issue likely would have “blown over” much more quickly.

The Court then ruled that the school district acted with deliberate indifference because it failed to properly train its employees, and is liable to Doe for damages: “if the school administrators had been adequately trained in the optimal methods of addressing sexual assault complaints, even allowing for mistakes, Plaintiff would not have suffered the injuries she alleges.”

Conclusion

This decision should be required reading for anyone who still doubts the importance of Title IX training for school employees. In its guidance document, Questions and Answers on Title IX and Sexual Violence, the Department of Education’s Office for Civil Rights states that schools “should provide training to all employees likely to witness or receive reports of sexual violence.” [Q&A, pp. 38-40]

However, this decision warns school administrators that training employees is not only a compliance issue, but it is also a significant liability issue. The OCR found Forest Hills’ response to Doe’s complaint and its grievance procedures violated Title IX, and now the U.S. District Court has ruled its failure to train makes the district liable to Doe for money damages.
Forest Hills still faces a jury trial on its liability for Title IX violations. This is a classic case of “an ounce of prevention is worth a pound of cure.”

*The facts of the case included in this post are set forth in the Court’s Opinion and Order Granting in Part and Denying in Part Cross Motions for Summary Judgment.

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When FERPA Meets HIPAA
Posted by On Wednesday, March 18, 2015

Last week, we wrote about the dramatic rise in mental health issues among college students and the shortage of counseling services at some schools to meet this increased demand. This post looks at another potential barrier to students accessing mental health care created by the recent revelation that the University of Oregon accessed a student’s counseling records and gave them to its attorneys to help defend itself against the student’s lawsuit, which accused the school of mishandling her sexual assault complaint.

In its response to the student’s lawsuit, UOregon states that “governing laws permit and encourage collecting [counseling] records” to investigate the student’s claim that the school’s actions and inaction caused her emotional distress.

This argument raises the question: doesn’t HIPAA (Health Insurance Portability and Accountability Act) protect the confidentiality of these records? The answer is no. Under HIPAA’s regulations, student education records are not “protected health information” if they are covered by FERPA (Family Educational Rights and Privacy Act). [45 CFR § 160.103]

The Departments of Education and Health and Human Services anticipated the next question, “does FERPA or HIPAA apply to records at health clinics run by postsecondary institutions?” and provided an answer in their 2008 Joint Guidance document:

FERPA applies to most public and private postsecondary institutions and, thus, to the records on students at the campus health clinics of such institutions.

If FERPA protects the confidentiality of education records, doesn’t UOregon need the student’s consent before accessing and sharing a student’s education records? According to federal regulations, the answer is no if the records help the institution defend itself against the student’s lawsuit:

If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself. [34 CFR § 99.31(a)(9)(iii)(B)]

However, we should point out that this rule doesn’t apply if the therapist doesn’t work for the university. In that instance, the student would be able to ask the court to look at the records and decide what was relevant before they were disclosed to the university, according to Gonzaga law professor Lynn Daggett.

A letter of concern from a UOregon Senior Staff Therapist first revealed that the student’s clinical records were accessed by the university without the student’s consent. To fulfill her professional duty to protect a client’s clinical information to the best of her ability, the UOregon therapist reported the disclosure of student records to the Oregon Board of Psychologist Examiners as “prohibited or unprofessional conduct.”

In response to the Letter of Concern, former law professor Katie Rose Guest Pryal researched the university’s right to use the student’s post-rape therapy records to defend against her lawsuit and discovered the “ugly truth” that FERPA allows schools to access records kept by the school’s mental health counselors. Pryal ends her piece with this advice for the Department of Education: “Fix this devastating privacy loophole” because UOregon’s action “could well chill the desire of students to seek support at university counseling centers everywhere.”

However, the Joint Guidance is clear that the disclosure by UOregon does not require student consent:

If the institution chooses to do so, a disclosure may be made to any party with a prior written consent from the eligible student (see 34 CFR § 99.30) or under any of the disclosures permitted without consent in 34 CFR § 99.31 of FERPA.

In response to the outcry over UOregon providing a student’s treatment records to its attorneys, the Department urged “higher education institutions to not only comply with FERPA, but also to respect the expectation of confidentiality that all Americans hold when talking to a counselor or therapist.”

This debate occurs at a time when a sexual assault victim’s confidentiality is a central issue in creating a safe and supportive environment to encourage victims to come forward. Moreover, the expectation of confidentiality is not just a concern for victims but also should concern students accused of sexual assault who have sued schools, claiming their due process rights were violated.

Title IX guidance says topics covered in student prevention training should include “reporting options, including formal reporting and confidential disclosure options …” In addition, schools need to make sure that their “professional counselors, pastoral counselors, and non-professional counselors or advocates also understand the extent to which they may keep a report confidential.”

Last week, UOregon’s interim general counsel told the school’s Senate committee, “in hindsight, he would have acted differently before requesting copies of a student’s confidential therapy records.” Unfortunately, a UOregon law professor, who is also a member of the committee, has already seen the chilling effect of this action, “Students now have a perception that their records are not safe . . . I have seen it in my work, and it is devastating.”

Now UOregon’s committee is drafting a policy to prohibit attorneys or school administrators from accessing a student’s counseling or therapy records without the student’s consent. To avoid the devastating effects of silencing students who need help, other schools may want to consider adopting similar policies to reassure students that their confidential resources really are confidential.

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