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Higher Ed Law

Weekly Roundup
Posted by On Friday, July 24, 2015

In this week’s roundup, states are considering more laws to prevent campus rapes, survivors stories about sexual abuse at an elite prep school, and a decline in mental health at English universities.

Horace Mann Abuse Case

In May of this year, a group called the Horace Mann Alumni Coalition released a report detailing over 60 cases of sexual assault by Horace Mann faculty between the ’60s and ’90s.  The report reveals that, during this time frame, the Horace Mann school received 25 reports of abuse by more than 20 different faculty members. A recent Buzzfeed article details that in the past two years, 32 former Horace Mann students came forward to tell their stories with the goal of entering mediation with the school for a settlement and apology. After an extremely difficult multi-year process, the survivors were left with resurfaced trauma, minimal monetary settlements, and no closure from Horace Mann. This case is an example of shortcomings of sexual assault investigations as well as the lasting impacts that sexual assault can have on individuals and communities.  At CampusClarity, we are in the process of adding pages to our Graduate Course specifically around the lasting impacts of sexual assault. The effects do not end when the assault ends or even when the investigation ends. Instead, they stay with the survivors. As  Malcolm Gladwell wrote in his book David and Golliath. “Even today I carry a death within myself…and I am like a decapitated pine. Pine trees do not regenerate their tops. They stay twisted, crippled. They grow in thickness, perhaps, and that is what I am doing.” The impacts of trauma are never ending, but neither is the change that happens within us.

State Legislators Confronting Campus Sexual Assault

In 2014, six states considered bills to prevent campus sexual assault. According to the National Conference of State Legislatures, so far this year 26 states have considered possible ways to make campuses safer. The “scarlet letter” approach is currently being debated by the District of Columbia Council in a bill authored by Council member Anita Bonds, which would require a student’s permanent record note a student was found responsible for sexual assault or left school during a pending conduct proceeding. The argument in favor of the bill is, of course, that students found responsible for sexual violence could not move to a new school without putting campus officials on notice of prior misconduct. The other side of the argument, however, questions whether a permanent mark should result from a conduct proceeding that determines responsibility by a preponderance of evidence. And Zoe Ridolfi-Starr of Know Your IX said it could discourage reporting because it imposes such a tough penalty. Kevin Kruger, president of Student Affairs Administrators in Higher Education said, “it puts campuses in a difficult position, with overlapping state and federal guidance. That can be really challenging.” Meanwhile, Virginia and New York have enacted laws requiring transcript notations and they may not be the last. After a Washington Post-Kaiser Family Foundation survey found 1 in 5 college women experienced unwanted sexual experience, Bonds introduced her bill because “I hear these statistics and I am outraged as many in the community are.”

Mental Health Declines at English Universities

We’ve written about research that suggests students’ self-reported mental health is at an all-time low at colleges and universities in the US. New research suggests that students in English higher education might be similarly affected. The Institute of Employment studies found a 132% rise in students who declared a mental health problem in the past several years, according to Times Higher Education (THE). Interestingly, the rise seems greater at more selective institutions. As in the US, researchers suggest that the increase might, in part, be attributed to “a more open culture around mental health and improved diagnostic procedures,” according to THE. In light of the new research, some staff and students are worried government cuts to resources for students with disabilities might strain schools trying to support the growing number of students with mental health issues or disabilities. THE reports that “[o]ne university employee went as far as to warn that the change could force universities to reject applications from disabled students, while another feared that it could deter students from disclosing their disabilities.”

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Cui Bono? New Ruling on Unpaid Internships
Posted by On Wednesday, July 15, 2015

When do companies have to pay their interns?

During the production of the film Black Swan, Eric Glatt and Alexander Footman worked as unpaid interns, running errands, doing office chores, and making deliveries.

Later, Glatt and Footman sued Fox Searchlight, claiming they’d been misclassified and were legally entitled to pay as “employees” under the federal Fair Labor Standards Act (FLSA).

“At its core, this [case] raises the broad question of under what circumstances an unpaid intern must be deemed an ‘employee’ under the FLSA and therefore compensated,” the Court wrote.

“An employee cannot waive his right to the minimum wage and overtime pay,” the Court stated. “In 1947, however, the [Supreme] Court recognized that [certain] trainees should not be treated as employees, and thus that they were beyond the reach of the FLSA’s minimum wage provision.”

“When properly designed, unpaid internship programs can greatly benefit interns,” the Court observed. “However, employers can also exploit unpaid interns by using their free labor without providing them with an appreciable benefit in education or experience.”

“In sum, … the proper question is whether the intern or the employer is the primary beneficiary of the relationship,” the Court concluded.

Thus, the Court ordered the case to proceed so a jury could decide whether the educational benefits gained by Glatt and Footman outweighed the value of their services to Fox (in which case they’d be “interns”), or whether Fox had been overcompensated (in which case they’d be “employees” and entitled to pay). [Glatt v. Fox Searchlight (2nd Cir. 2015) no. 13-4478]

Note: The Court also reviewed the US Labor Department’s six-part test for determining whether an intern is an employee (see Fact Sheet #71), and found it lacking, writing: “[W]e do not find it persuasive, and we will not defer to it.”

If you’re interested in learning more, check out our employment-side training, policies, and resources at LawRoom.

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Weekly Roundup
Posted by On Saturday, July 11, 2015

In this week’s roundup we have a summary of recent court decisions related to Title IX, NY’s new “Enough is Enough” law that requires all schools to adopt an affirmative consent standard, and the Department of Education’s annual “Indicators of School Crime and Safety” report. (For more information on recent legislation, check out our blog post here.)

Round-up of Decisions in Disciplined-Student Cases

Given the heightened attention on effectively responding to and preventing sexual violence by the Department of Education and Colleges and Universities across the country, it is perhaps unsurprising that there has been some pushback. In particular, students accused of sexual assault have been suing their schools because of what they claim are flawed or discriminatory disciplinary hearings. Students have brought suits on a variety of grounds, including violations of due process, contract, freedom of speech, and, of course, Title IX. Recent rulings in these cases provide insights into how the courts are interpreting a school’s obligations under Title IX. Though many news sites and blogs follow these issues, the Title IX Blog, maintained by Erin Buzuvis, a Professor of Law, and Kristine Newhall, a Ph.D. in Women’s Studies, offers particularly insightful coverage of these issues. In this post, Professor Buzuvis offers a short roundup of several recent rulings. As she summarizes, “in all of these cases, the plaintiff’s Title IX claims were dismissed early in the litigation.”

Governor Cuomo Signs Yes Means Yes into Law

New York’s private colleges and universities now also have to adopt an affirmative consent policy. Also known as “yes means yes,” affirmative consent is defined by the law as  “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” The definition also specifies that “Silence or lack of resistance, in and of itself, does not demonstrate consent.” The law also grants immunity from code of conduct sanctions for drug or alcohol violations to students reporting in good faith incidents of violence; provides a victim’s Bill of Rights to students; and mandates training on these issues. Read our coverage of this new law and others here. Read our coverage of California’s similar “Yes Means Yes” law.

Department of Education Releases Annual Report of Crime Statistics

Early this week the Department of Education released its 17th annual report on school crime statistics. The report covers crime information on elementary, secondary, and post-secondary schools. The report’s purpose is to establish “reliable indicators of the current state of school crime and safety across the nation and regularly updating and monitoring these indicators.” In general the news for post-secondary schools is good, “the overall number of [on-campus] crimes reported between 2001 and 2012 decreased by 29 percent.” The report was not universally positive. There was one category of on-campus crime where the numbers rose: forcible sex offenses. “In the case of forcible sex offenses, the rate was higher in 2012 (2.6 per 10,000 students) than in 2001 (1.9 per 10,000 students).” Read the whole report here.

 

 

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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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How the HALT Act would Transform Title IX Enforcement
Posted by On Saturday, June 6, 2015

Last summer we wrote about the HALT Act, Hold Accountable and Lend Transparency on Campus Sexual Violence Act. The bill was introduced into the House by Representatives Jackie Speier and Patrick Meehan. According to Congresswoman Speier’s website, the HALT Act will significantly expand the federal government’s ability to hold colleges and universities accountable if they fail to protect their students’ civil rights by:

(1) requiring the Department of Education to issue penalties for noncompliance with civil rights requirements under its authority, including Title IX;
(2) increasing penalties for violating the Clery Act from $35,000 to $100,000;
(3) creating a private right of action for students harmed by institutions that fail to meet campus safety requirements;
(4) instituting biennial climate surveys;
(5) requiring greater transparency and public disclosure of a list of institutions under investigation, the sanctions (if any) or findings issued pursuant to such investigations, and copies of all program reviews and resolution agreements entered into between higher education institutions and the Education and Justice Departments under Title IX and the Clery Act;
(6) increasing funding for Title IX and Clery investigators by $5 million;
(7) expanding institutional requirements to notify and publicly post students’ legal rights and institutions’ obligations under Title IX; and
(8) creating an interagency task force to increase coordination between agencies and enhance investigations.

The HALT Act is similar to the CASA Act, the Campus Safety and Accountability Act, introduced last year in the Senate by Senators Claire McCaskill and Kirsten Gillibrand, which strengthens the enforcement of Clery Act and Title IX and would also require schools to provide an annual climate survey.

Contact us at 1-800-652-9546 to find out more about how we can help your institution comply with Title IX and how we can help you with climate surveys. Follow us to stay up-to-date on compliance news.

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Weekly Roundup
Posted by On Friday, May 29, 2015

More states are considering “Yes Means Yes” laws, and the five things you need to know about climate surveys.

More States Consider Affirmative Consent Bills

We’ve reported extensively on California’s “Yes Means Yes” law, which requires colleges and universities that participate in state student financial aid programs to adopt a definition of consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.” At the time, we described California as being “at the forefront of addressing a difficult societal problem with a controversial new law.” Now, as expected by our team of legal analysts, other states are following California’s lead with affirmative consent laws of their own. Connecticut’s Senate has passed a similar bill already—if the law is approved by the House and signed by Gov. Dannel Malloy, Connecticut will become the second state with an affirmative consent law. A movement in favor of such a law is under way in Pennsylvania as well, with some schools in that state having adopted an affirmative consent definition without a legislative mandate.

What You Need to Know About Climate Surveys

It is generally agreed that mandatory climate surveys are coming. What does your institution need to know to be prepared? This article from Inside Higher Ed provides a useful cheat sheet, listing five things you should know about mandatory climate surveys. They include the likelihood that such surveys will be required by law, the fact that surveys are already being designed and deployed at various campuses, the caveat that participation will pose unique challenges, what remains unknown about how the surveys will be utilized, and the possibility that climate surveys will reveal “blind spots” in a school’s prevention efforts. The notalone.gov website provides information about how to plan and conduct a climate survey, as well as a sample “empirically informed survey.”

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Weekly Roundup
Posted by On Friday, May 8, 2015

For this week’s roundup we have two different articles focusing on different aspects of the data released last Tuesday by the Department of Education and a list of seven things to know about CASA from the National Law Review.

Good News: The Number of Reported Sexual Assaults is Up

The data released by the Department’s Office for Civil Rights (OCR) and the Federal Student Aid office (FSA) last Tuesday in response to a request from Senators Barbara Boxer, Kirsten Gillibrand, and Tim Kaine, confirmed a trend we’ve noted earlier —the number of reported sexual assaults on college campuses has been and continues to increase dramatically. In 2009, 3,300 assaults were reported. In 2013, there were over 6,000 reports. As we and others have covered extensively, this is a positive development in the fight against campus sexual violence, suggesting that increased awareness has made students feel more comfortable reporting incidents of sexual violence than they did in the past. However, as pointed out by this article from the Christian Science Monitor, the number of reported assaults still trails far behind the numbers reported in anonymous surveys, indicating there is still much work to do.

Bad News: The Length of OCR Investigations is Also Up

One unfortunate side effect of the federal government’s aggressive efforts to address campus sexual violence is a dramatic increase in the average length of Title IX investigations. The same report discussed in the above story reveals that the average OCR investigation now takes 1,469 days—around four years, meaning that even a student who filed a complaint as a freshman would graduate before the investigation was resolved. As this piece from Bloomberg Business points out, there are serious consequences of an investigation dragging on that long—solutions to the problems that led to the complaint are delayed, the facts of the pertinent cases become more difficult to ascertain, and victim/survivors are denied closure. However, as the renewed focus on sexual assault leads to more and more complaints and investigations, the OCR has seen its budget cut — reducing its full-time staff from 1,148 to 544 between 1980 and 2014 — contributing to delays and a backlog of cases.  The President’s budget proposal and Senators Kaine, Boxer, and Gillibrand have called for increased funding for the OCR.

The National Law Review Tells You What You Need to Know About CASA

If you follow this blog regularly you’ll have seen this analysis of the Campus Accountability and Safety Act, the proposed law with bipartisan support that would introduce new, more stringent regulations for how colleges and universities handle sexual harassment and violence. The article above, published by the National Law Review, highlights seven aspects of the proposed law you should be aware of, including increased fines, a Campus Climate Survey requirement, and broader reporting requirements.

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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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