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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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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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DCL: Good Faith Effort to Comply Required
Posted by On Tuesday, July 15, 2014

On Monday, July 14, 2014, the ED issued a Dear Colleague Letter because they “have received numerous inquiries from institutions asking us to clarify their responsibilities under the Clery Act, as amended by VAWA.” This guidance repeats ED statements from May 2013 with a bit more clarity: “until final regulations are published and effective, institutions must make a good-faith effort to comply with the statutory provisions as written.”

The ED’s guidance says good faith compliance with amendments to the Clery Act, which include the Campus SaVE Act, requires institutions to expand their policies to describe the procedures and programs that satisfy those new requirements. For example, the Campus SaVE Act requires each school to have a policy that describes the procedures that will be followed when a student reports a sexual assault incident and what standard of evidence will be used to decide an accused student’s responsibility for the assault.

Therefore, the ED will be looking for information in the policy statement submitted with a school’s October 2014 Annual Security Report that satisfies all of the requirements in the Campus SaVE Act, including a description of its prevention program.

(more…)

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No Easy Answers At Third Roundtable Discussion With U.S. Senator Claire McCaskill
Posted by On Thursday, July 10, 2014

We’ve previously written about the first and second roundtable discussions that U.S. Senator Claire McCaskill held over the past couple of months. The third roundtable discussion held on June 23rd dealt with improving collaboration between local law enforcement and campus police, and the recurring question of how to bring perpetrators to justice. However, at the end of the day it was clear that there are no easy answers.

Nancy Cantalupo, a research fellow at the Victim Rights Law Center and adjunct law professor at Georgetown University, pointed out that sexual response teams have been a key best practice that brings internal and external people together. While she admitted that the relationship among the different perspectives and different goals may be dysfunctional at first, once they work through their differences, collaboration works.

Victim advocates emphasized confidentiality because “self-blame and shame has persisted among victims.” However, law enforcement explained that reporting to police so they can begin collecting evidence as soon as possible is critical to successful prosecutions in the criminal justice system. But, it was pointed out, until victims trust the system they won’t report to police and put their character and credibility on trial.

Carrie Hull, a detective with the Ashland, Oregon Police Department said her experience confirmed that confidentiality and reporting go hand in hand. After sexual assault victims were given options and, therefore, control over how their case was handled reports in Ashland rose 106% from 2010 to 2013. In Ashland, victims are given three options: (1) report information only, (2) authorize a partial investigation, or (3) request a complete investigation that will be referred to a prosecutor.

Jessica Ladd-Webert, the Victim Assistance Director at the University of Colorado at Boulder, agreed that when a victim has an advocate who gives them all of their options and helps them pursue the one they choose, it builds trust. Therefore, designating victim advocates as confidential resources, not mandated reporters, is critically important for victims.

According to these experts, giving victims confidentiality and control provides the support they need to increase reporting. The next question is how to make campuses safer by holding perpetrators accountable. The answer to that question is still being debated.

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Golden State Auditor Issues Report
Posted by On Tuesday, July 1, 2014
Golden State Auditor Issues Report

Second Roundtable Discussion: Title IX
Posted by On Thursday, June 5, 2014

The second of three roundtable discussions focused on the role Title IX plays in the issue of campus sexual harassment and sexual violence, as well as what Senator McCaskill described as how to address “inadequate training, inadequate resources, and little proactive enforcement.” Among the topics discussed were:

  • the importance of customizing a school’s prevention program to meet the unique needs of that particular campus community
  • increasing penalties and proactive enforcement by regulators
  • making it easier to sue a college or university for damages suffered as a result of its mishandling a complaint
  • creating transparency around best practices for Title IX compliance

Customized Compliance
Senator Jon Tester of Montana talked about the Title IX investigation of the University of Montana by the Departments of Justice and Education. Jocelyn Samuels, the DOJ’s Acting Assistant Attorney General for Civil Rights, noted that the agreements reached with the University of Montana and its Office of Public Safety serve as a “model for other universities around the country to be able to adopt the kind of proactive steps necessary to really address these problems,” including:

  • having a unified set of policies that comply with the law and are easily accessible to the campus community
  • ensuring that everyone on campus knows their rights and responsibilities when it comes to dealing with sexual assault
  • providing proper training for school officials, students, and anyone involved in the investigative or disciplinary process
  • promptly responding to complaints
  • taking corrective action whenever sexual assault occurs
  • collecting data on the scope of the problem at a particular campus so that the school is taking informed measures to address the problem

Emphasizing the last point, Ms. Samuels said it’s important for every institution to engage with members of its community to make sure that serious steps are being taken to customize prevention efforts to the needs of individual schools.

Proactive Enforcement and Private Lawsuits
Laura Dunn suggested at the first roundtable that the penalty for Clery Act violations be calculated as a percentage of the institution’s gross revenue so that it hurts large institutions and doesn’t overwhelm smaller institutions, and that idea was brought up again at the second roundtable discussion. McCaskill asked, “how do you impact change on the thousands of campuses out there . . . that’s kind of where I think we need to be going if we can figure out a way to do it that’s not draconian on small universities and meaningful to larger universities.”

Besides penalties, Senator McCaskill suggested that making it easier for students to prevail in private lawsuits for monetary damages could also encourage Title IX compliance by a college or university. Ms. Samuel noted that the standard for obtaining an injunction is less demanding, requiring a showing that the school has not taken “reasonable steps” to address the sexual misconduct, instead of the standard for obtaining money damages, which requires proving that the institution was “deliberately indifferent,” or took no action to address the situation.

Other suggestions to make private lawsuits a viable option included extending the statute of limitations beyond 180 days and making the standard of review for Title IX complaints consistent at the OCR’s twelve regional offices.

Best Practices

Transparency around regulatory investigations was a popular topic, and Ms. Noble-Triplett, Assistant Vice President for Academic Affairs at the University of Missouri, noted that she would also like to have access to information about “those institutions that have demonstrated sustainable, evidence-based results from doing things well.”

As with many discussions at the roundtable, this came back to the duty of the institution to educate its campus community on their rights and responsibilities to address the sexual assault problem. Noble-Triplett suggested that instead of creating a compliance mentality with more legislation, a more effective approach would be to create more accountability within an institution.

Also, Ms. Noble-Triplett noted that the correlation between alcohol and substance abuse with sexual assault cannot be ignored where the institution is faced with changing the campus culture.

At the end of the second session, panelists got a chance to talk about their wish list which includes a:

  • website for Title IX officers that provides information, such as the best practices and other helpful information from regulators
  • list of forensic investigator training competencies required since training results are inconsistent (McCaskill suggested looking at military training)

Look for draft legislation in late June which, according to McCaskill, needs to have “the right mix of regulation, support, and penalties.” The discussion at the next roundtable set for June 23rd will center on using disciplinary proceedings and the criminal justice system to hold perpetrators of sexual assault accountable.

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Why Your Sexual Assault Prevention Program Needs to Address Substance Abuse
Posted by On Thursday, May 29, 2014

It is crucial that a prevention program covers both sexual misconduct and substance abuse, especially alcohol abuse. Consider these statistics:

In other words, alcohol is the number one rape drug.

Indeed, researchers and educators have long called for sexual assault prevention programs to incorporate training on substance abuse as well. This includes recommendations from

There are many theories explaining the connection between alcohol and sexual assault including pharmacological and cultural reasons. (Antonia Abbey offers an excellent summary of these theories here. )

For instance, alcohol can incapacitate victims, making it harder for them to resist an attacker. Or it can make attackers more aggressive and impulsive. Perpetrators may also use to justify their crimes to themselves and those around them. An assailant might drink in order to surrender responsibility for his or her actions – “I can’t help it, I’m drunk.” Similarly, stereotypes about the relationship between drinking and sexual desire (e.g. women who drink are looking for sex) could encourage an assailant to aggressively pursue a woman despite her refusals. Victims may even internalize cultural stereotypes about alcohol and sexual behavior and as a result blame themselves for an assault.

Therefore, it’s crucial that a prevention program address these misconceptions and problematic associations, explaining that being drunk never excuses an individual from moral or legal responsibility for an assault nor does it place responsibility for an assault on the victim.

More broadly, a program that encourages (and teaches) students who drink to do so responsibly and to look out for their friends helps to instill positive habits and attitudes that will also help students stand up to sexual assault. It’s all part of the same prevention message.

For more on what to look for in a prevention program, refer to these posts:

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What is Ongoing?
Posted by On Friday, May 23, 2014
Ongoing Training

What to Look for in Prevention Programs
Posted by On Tuesday, May 20, 2014
What to Look for in Prevention Programs