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The Passing of the Sexual Assault Survivors’ Rights Act
Posted by On Friday, October 21, 2016

On Friday October 7, 2016, President Obama signed into law the Sexual Assault Survivors’ Rights Act, which guarantees specific rights to survivors of sexual assault. The driving force behind this Act was led by Rise, a civil rights nonprofit organization founded by Amanda Nguyen, a sexual assault survivor herself. Given her own struggles to prevent authorities from destroying her rape kit after a certain amount of time, Nguyen felt that something needed to be done to protect the rights of sexual assault victims.

Until now, many sexual assault survivors have experienced obstacles in their attempt to receive a rape kit examination, as well as frustration with the process that follows. The kit itself consists of a medical examination conducted by trained healthcare professionals to collect and preserve forensic evidence following a sexual assault. Survivors have been burdened with fees, as well as kits that were never examined due to lack of government funds. Some kits were destroyed without prior notification or permission, potentially causing the loss of information that could have resulted in some glimmer of justice.

According to a February 2016 interview with the Guardian, Nguyen was sexually assaulted in October 2014, went through a rape kit examination, and submitted the evidence to Massachusetts. Massachusetts law states that a survivor has 15 years to pursue legal action. However, Nguyen recounts that a pamphlet she received while at the hospital said that she would have to file an extension request if she wanted her test to be preserved for longer than six months, after which time it would be destroyed.

With just the aforementioned information in hand, Nguyen had to do some digging in order to figure out how to file such an extension. To this day, she repeats this process of requesting another extension every six months. Such experiences helped to inspire Nguyen to take action, for herself and for other survivors.

“The system essentially makes me live my life by date of rape,” said Nguyen.

As reported by Mother Jones, the recently passed measure focuses on the collection and preservation of rape kits, ensuring that survivors will not be charged for or be prevented from getting a rape kit examination, even if they have yet to decide whether or not to pursue legal action. Additionally, once the examination has been completed, the kits must be preserved until the applicable statute of limitations runs out, at no cost to the survivor.

Survivors will also be able to request that authorities notify them before destroying their rape kits, with an option of requesting that they continue to be preserved. The measure goes further in guaranteeing survivors the right to be notified of the examination results, including a DNA profiling match and toxicology report. Regardless of whether or not the survivor decides to pursue legal action, they must be informed of their rights.

Nguyen reached out to Senator Jeanne Shaheen (D-NH) to help bring her vision to fruition. “Sexual assault remains one of the most underreported crimes and I hope that these basic rights will encourage more survivors to come forward and pursue justice,” said Shaheen in a statement regarding the Act.

In a statement to Buzzfeed news, Nguyen said: “At the heart of this is a deep belief of equality under the law and making sure that when survivors do choose to engage with the justice system that they are met with something that is fair.”

With advocates like Nguyen and Shaheen, we can hope that survivors are met with a justice system that works with them in the aftermath of a sexual assault, rather than having them feel as though it’s against them.

Along with these new rights for survivors, BuzzFeed news reports that the law also calls for “a working group run by the U.S. attorney general and the secretary of health and human services to develop and disseminate to local agencies the best practices for preservation of forensic evidence and treatment of survivors.”

“Half of the battle was getting these civil rights codified, the other half is making sure there is implementation on the ground and enforcement of these rights,” Nguyen told BuzzFeed News.

Nguyen said that she and Rise are going to continue working on reforms at the state level in an effort to improve how law enforcement handles sexual assaults.

I could accept injustice or rewrite the law,” Nguyen said. “I chose rewriting the law.”

For more information regarding the prevention of sexual harassment and misconduct, visit CampusClarity’s home page.

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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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Transforming Climate Surveys From a Compliance Trend to Sexual Assault Prevention
Posted by On Thursday, April 14, 2016

College campuses, along with many states and the federal government, have all recognized the need for campus climate surveys on a near-universal level. Climate surveys provide the ability to achieve a more comprehensive understanding of the sexual assault problems that occur regularly on college campuses, giving insight to perpetration and victimization trends.

Instead of just providing the administration with data, climate surveys can become an important tool for the prevention of sexual assault. As we wrote about previously, there are three different types of prevention:

  • Primary Prevention: Addressing an issue before it happens
  • Secondary Prevention: Dealing with the immediate effects of an issue
  • Tertiary Prevention: Managing the long-term effects of an issue

Climate surveys can – and should – fit in to each of the three categories of prevention for a number of important reasons. One, of course, is to stay student-centric. And another is for the importance of proving the value of climate surveys. It is much easier to convince folks to allocate funds to something that is prevention-focused rather than simply retroactive. Let’s break the value of climate surveys down into the three categories of prevention.

Primary prevention is often the only thing people consider when thinking about prevention. It is also often the hardest to fathom. Climate surveys serve as a primary prevention technique through providing definitions of words like sexual assault, rape, consent, and incapacitated. Unfortunately, many perpetrators don’t even realize what they’re doing is wrong, and so by educating potential perpetrators on the weight of their actions, they will be less likely to commit sexual assault. Also, climate surveys show that the institution is taking the problem of sexual assault on campus seriously, and thus adding a deterrent to committing sexual assault. Primary prevention (different from risk reduction), or addressing sexual assault before it occurs, can really only be done by preventing perpetrators from perpetrating. Luckily, climate surveys do this in a couple of ways.

Secondary prevention manages the immediate affects of sexual assault. Climate surveys can be considered secondary prevention because they allow survivors to disclose sexual assault in a safe and anonymous way, which is shown to be healing and therapeutic for many survivors. Climate surveys also can provide students with resources about where to get support if they have been impacted by sexual assault.

Another way climate surveys can be considered secondary prevention is through their usage as a data collection tool. The data received from climate surveys can allow administrators to strengthen and target education and programming by identifying perpetration and victimization trends on campus, thus trying to improve the immediate impacts of sexual assault.

Finally, and perhaps most importantly, climate surveys are a great tool for tertiary prevention – if done correctly. Tertiary prevention manages the long-term effects of sexual assault. Distributing a climate survey shows that the institution has a commitment to preventing sexual assault, supporting survivors, and addressing the campus climate. However, one mishandling, or even the perception of such, can harshly impact a student’s trust of the institution. Climate surveys can remediate this distrust and show that resources are being allocated toward stopping sexual assault.

To develop, redevelop, or strengthen student trust, there are some beneficial actions a school can make to within their climate survey implementation.

  • Be intentional with language: Talking about sexual assault can be complicated. Not everyone will identify the incident or incidents that happened to them as sexual assault, and not everyone who experienced sexual assault will consider themselves a survivor. Make sure that you’re being clear about what the survey is about while also being careful about putting labels on people and situations.
  • Test subject lines: The subject of your emails could make all of the difference in who opens the email and who clicks on the link to the survey. If you’re missing respondents of a certain demographic, try out a different subject line that could attract a different set of students. At the end of the day, it is extremely important that the survey respondents are a representative sample of your student body.
  • Test drop-off rates: No matter how many times you think and re-think your survey questions, there could always be something that is triggering or challenging for students. If a question like this does exist, it might be important to know before a full deployment of the survey. Similarly, if the survey is too long, there might be a certain place where users lose interest in completing the survey. Test the survey with a small sample first – either students or non-students – to determine the drop-off rates and locations.
  • Use incentives: Having a large respondent pool will yield the most accurate and representative results. To get a large sample size, offer incentives for survey completion. However, make sure you know how much, or what kind, of incentive will be most appealing to your students. Simply giving out more money may not lead to more respondents.
  • Ensure accessibility: As with online courses, it is important that a survey is WCAG 2.0 AA compliant. It isn’t possible to get a true sample of the campus population if a specific demographic of students is unable to respond to the survey. It is also important to note that identities intersect, and that folks with disabilities are just as, if not more, impacted by sexual violence.
  • Design for mobile optimization: Around 30% of students take climate surveys on their smartphones.  It is important that students can take the survey on any type of device that they own (tablet, phone, laptop, etc.). This is especially important for low-income students who may not own a personal computer.
  • Include content warnings: Using specific language is important in order to achieve accurate results. However, it is equally as important to warn students about the content included in the survey so that they can emotionally prepare themselves. This helps to build trust and display transparency.

Going beyond compliance means not just creating a climate survey to meet a legal requirement, but also to benefit your students and your community. By framing climate surveys as sexual assault prevention, you’ll be able to articulate the value of it, build rapport with students, and focus on improving the campus climate.

Building a climate survey? Watch this short video.

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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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Weekly Roundup
Posted by On Friday, August 21, 2015

In this week’s roundup, confusion and guidance around confidentiality and the University of Texas system launches a study of campus sexual assault across all 13 of its campues.

Department of Education Seeks Input on Protecting Student’s Medical Records

On Tuesday, August 18th, The Department of Education’s (ED) Chief Privacy Officer, Kathleen Styles, requested input from the higher education community on protecting student medical records. The request, which was published on “Homeroom,” the ED’s official blog, accompanied a draft Dear Colleague Letter (DCL) addressing an exception under FERPA that allows a school to access a student’s medical records without consent if there is litigation between the student and the school.

The draft guidance follows a controversial incident earlier this year: after a student sued her university for allegedly mishandling her report of being raped, the university gave her therapy records to its attorneys to help defend itself against her lawsuit. One commentator argued the university’s decision — and the FERPA exception that allowed them to make it — left students “stuck between unaffordable therapy in a safe space and free therapy provided by an institution they are unsure they can trust.” The draft DCL offers guidance for these situations,

…without a court order or written consent, institutions that are involved in litigation with a student should not share student medical records with the institution’s attorneys or courts unless the litigation in question relates directly to the medical treatment itself or the payment for that treatment, and even then disclose only those records that are relevant and necessary to the litigation.

Public input is welcomed until October 2nd, and anyone interested can email comments to FERPA.Comments@ed.gov.

Controversial & Confidential Advisers

What’s controversial about confidential advisers? According to some experts, advocates employed by a college may have a conflict of interest when counseling alleged victims, rendering them unable to give students unbiased support. And without the protection of a legal privilege, advisers could be subpoenaed as part of a criminal investigation or by lawyers of accused students to disclose their communications with the alleged victim. Or, when helping a student move to a new dorm, information could be given to an employee who is required to report it to the Title IX coordinator. United Educators’ general counsel says simply hiring an adviser for every campus “is likely to cause more confusion and conflicts.”

However, as the White House Task Force Report pointed out, victims and survivors of sexual violence are more likely to seek help, rather than stay silent, if they have a place to go for confidential advice and support. The University of California has at least one adviser on each of its ten campuses. In fact, the UC Santa Barbara campus has five staff members to support victims through a campus or criminal investigation, or accommodations in academic and living situations, and the number of students seeking services from its confidential-advising program tripled after they increased the number of advisers.

California’s “Yes Means Yes” law requires campuses to have a confidential advising office for survivors. New York’s “Enough is Enough” law and the Campus Accountability and Safety Act now pending in the U.S. Senate both require confidential advisers on every college campus. Given the positive impact that a confidential adviser has on survivor reporting and recovery, it is likely we will see legislative action to protect advocate confidentiality.

Sexual Assault Climate Assessment at University of Texas

The University of Texas (UT) is undertaking a $1.7 million study of campus sexual assault across all 13 of its campuses.  Led by William McRaven, the chancellor of the UT system, the project is expected to take multiple years and will include an online student questionnaire, faculty and staff focus groups, and longitudinal studies of student experiences. This study is one of many sexual assault Campus Climate Survey projects sweeping the nation’s higher education institutions.

McRaven, who has been in his current role since January, is comparing his experience working with UT to his previous extensive experience with the military. McRaven is a retired four-star Navy admiral and a long-time Navy SEAL.  He is most known for his involvement in the operation that resulted in the death of Osama bin Laden in 2011. While in the Navy, McRaven says that he knew sexual assault was a problem, but until he conducted a survey of personnel, the extent and breadth of the problem were unknown. “Frankly, I was stunned by the results,” he said. “The problem was a lot more entrenched, and a lot broader, than I thought it was.”

This experience has helped him realize that “I don’t have enough data just yet” to understand how big the sexual assault problem is in the UT system. This project will happen in conjunction with the UT-Austin campus taking part in the AAU survey, for which aggregate results are expected to be published this Fall.

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Proposed Legislation Limits University Investigations
Posted by On Thursday, August 20, 2015

Rusted gated chained and locked shut

Two recent bills winding their way through congress could have serious implications for investigations of sexual assault at colleges and universities if they become law.

These two new bills would limit not only when a university could investigate a reported sexual assault, but also the type of sanctions that could be imposed on fraternities / sororities when one of its members is under investigation or found in violation of an institution’s code of conduct.

The two new bills titled the Safe Campus Act and the Fair Campus Act would prevent college investigations if the victim of a sexual assault chooses not to report it to local law enforcement. Not only that, but the “the institution may not initiate or otherwise carry out any institutional disciplinary proceeding with respect to the allegation, including imposing interim measures.” In some instances, these bills directly contradict mandates issued in Title IX that may require an institution to investigate even if the claimant does not wish it to. The arguments for the potential new laws hinge around a common refrain that will be familiar to Title IX coordinators and directors of student conduct around the country: “Universities don’t investigate murders and other serious felonies, why should they investigate and punish students without due process for something as serious as sexual assault?”

Universities establish their own codes of conduct to create safe and respectful living and learning environments. The processes for deciding whether or not a student is in violation of the university’s student conduct policies are different from the criminal justice system, and should remain that way. Decisions made by a university’s conduct process are internal, and not viable as civil penalties. A university can often take action when the criminal justice system cannot, and the university should maintain the ability to remove students for violating its terms of conduct and behavior on campus.

A student may have many reasons for not wanting to report an assault to local law enforcement. If universities have been criticized for mishandling sexual assault investigations, the criminal justice system is far more arcane, cumbersome, and complicated. Even when an assault is reported, it is unlikely to lead to arrest and prosecution. And with 400,000 untested rape kits throughout the United States, it’s difficult to imagine someone placing all or even any their trust in the civil justice system.

Contrary to most institution’s adjudication processes, the new bills also allow for greater participation from lawyers (hired at the expense of the complainant and respondent) who may now ask questions, file relevant papers, examine evidence, and examine witnesses (including the complainant). The new bills fundamentally change the institutional procedure into a duplicate of the courtroom environment. And it would be easy to see how complicated and unfair it might be for a student of means to hire an attorney (no matter which side they are on) if the other student cannot afford to do so. In my experience as a VP of Student Affairs at an urban private school, there were many instances where a complainant did not want to file a report against another student because the respondent had the ability and money to hire professional legal counsel.

Critics will counter that, with such high stakes on the table if someone is found in violation of a university’s sexual assault policies, lawyers are there to protect students from both sides. The recent prominence of lawsuits by students accused of assault exposes the enormous pressure that universities are under from both complainants and respondents. As the Huffington Post has reported, no higher education trade group has yet supported these bills; universities already recognize the complexities of these new governmental regulations and the importance of sustaining a process that is fair to everyone involved. Some common sense provisions, such as ensuring that university personnel do not fill dual roles (i.e., an investigator should not be an adjudicator, or a victim’s advocate should not be an appeals adjudicator) are included in the bills, but these are commonplace.

Though universities have attempted to remove many barriers for the reporting of sexual assault (which remain significantly underreported), they must remain committed to creating a system that ensures fairness for both claimants and respondents. In the face of an increasingly complex regulatory system and with conflicting interests, universities remain in an untenable middle. It would be nice to get clarity around the current regulatory scheme rather than limits to the response of the university.

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Campus Climate Surveys: Expert Opinions
Posted by On Wednesday, August 12, 2015

There is limited research out there on how best to develop and implement Sexual Assault Campus Climate Surveys because they’re a relatively new trend. “Experts” on campus climate surveys are a wide range of folks with related expertise, whether it be in government, in sexual assault prevention work, or as student affairs administrators.

On July 29th, the Senate Health, Education, Labor, and Pensions Committee heard testimony around reauthorizing the Higher Education Act. The Campus Accountability and Safety Act would amend the broader Higher Education Act, which Congress is working to reauthorize. It would require schools to gauge how often sexual assaults occur on their campuses and offer confidential advisers for victims.  Below are a few statements detailing how the amendment would impact climate surveys as well as the opinions of some thought-leaders in the field.

Statement of Senator Dean Heller

“Sexual assault is a crime that more often than not goes unreported, which is one of the reasons why data provided by our nation’s institutions simply do not reflect the prevalence of this crime. In fact, there are many colleges and universities that have reported zero incidences of sexual offenses to the federal government. I strongly believe one of the most important provisions of our bill is the campus climate survey. This survey will improve access to accurate, campus-level data by allowing students to anonymously share their experiences related to sexual assault. Under our bill, schools will give their students an anonymous, online survey to gauge the scope of sexual assault on campus and the effectiveness of current institutional policies on this issue. The Department of Education will be responsible for developing this survey, as well as picking up its cost. Schools just need to ensure an adequate, random, and representative sample of students take the survey. The survey results will be reported to Congress and published on the Department of Education’s website. Because this survey will be standardized, the American public will be able to compare the campus climate of all schools. As a father of four children, I wish I had access to this kind of information when my kids were preparing to attend college. And, now as a grandfather of two, my hope is that when they grow up and go off to school, our nation’s campuses will be safer than ever before. The campus climate survey will be a useful, educational tool for both students and parents, as well as an invaluable resource for institutions to help create or enhance efforts to prevent sexual assault, assist survivors of this crime, and improve campus safety overall.”

Testimony of Dana Bolger, co-founder of Know Your IX

“To counteract the potential negative reputational consequences of encouraging survivors to report, Congress should mandate that schools conduct campus climate surveys and publish their results publicly. This step would provide invaluable information to students and their families – including prospective students – and would increase incentives for schools to appropriately address violence. Schools should also be required to publish aggregate statistics on how investigations are being handled, which would provide greater insight into whether or not disciplinary proceedings are being handled promptly and equitably. This will help ensure that students, parents, and policymakers can evaluate and compare how each school responds to complaints of gender violence in practice, not just on paper.”

Testimony of Janet Napolitano, President of University of California

“CASA requires that the Department of Education develop, design and administer a standardized, online, annual survey of students regarding their experiences with sexual violence and harassment every two years. Having just conducted the largest university system climate survey of its kind in the nation, I have significant concerns about the usefulness of a single survey developed for all institutions given the broad diversity in higher education institutions across the nation and the student populations they serve. UC surveyed not only students, but also faculty and staff about their experiences and perceptions of the campus or workplace climate. We now have a rich baseline of data that campuses are analyzing to identify key areas of focus. Institutions should be allowed to develop and use their own climate surveys, as long as they meet criteria and standards defined by the Department of Education and are developed in consultation with stakeholders. Further, I believe that it is inappropriate for the legislation to place the responsibility on the university for ensuring that an adequate, random, and representative sample size of students enrolled at the institution completes the survey. This requirement could compromise the perceived anonymity of the survey and would be especially challenging if the survey would be administered by the Department of Education and not the institutions.”

There are many mixed thoughts around the Reauthorization of the Higher Education Act: Combating Campus Sexual Assault.  Much of this disagreement focuses around the inclusion of mandatory, government-created campus climate surveys.  In April of last year, the Huffington Post published an article detailing some of the differing views about this component of the legislation. (For more information on CASA read our past coverage.)

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EEOC Evolves on Orientation
Posted by On Wednesday, August 5, 2015

The Equal Employment Opportunity Commission (EEOC) ruled that Title VII was violated when an employee was denied a promotion because of his sexual orientation. The case involved an air traffic control supervisor in Florida, who accused the Federal Aviation Administration (FAA) of not selecting him for a permanent position because he is gay.

Traditionally, Title VII has been interpreted not to cover sexual orientation bias for gays, lesbians, and heterosexuals. This was true unless there was sex-based “gender stereotyping.”

However, in addition to prohibiting gender stereotyping, the EEOC now says Title VII implicitly forbids sexual orientation discrimination.

“[T]he question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not,” the EEOC wrote. “Rather, the question … is the same as any other Title VII case involving allegations of sex discrimination — whether the [employer] has relied on sex-based considerations or taken gender into account when taking the challenged employment action.”

“[W]e conclude that sexual orientation is inherently a sex-based consideration, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,” the EEOC stated. “[An employee] alleging that an [employer] took his or her sexual orientation into account in an employment action necessarily alleges that the [employer] took his or her sex into account.”

“Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex,” the EEOC explained. “Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.”

Noting that the EEOC’s “own understanding of Title VII’s application to sexual orientation discrimination has developed over time,” the EEOC ordered the case to proceed to determine the FAA’s liability for violating Title VII. [Baldwin v. Foxx (EEOC 2015) no. 2012-24738]

Note: In 2012, the EEOC applied Title VII’s rule against sex bias in a case involving discrimination against a transgender employee.

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