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Selling Safety: The Rise of Sexual Assault Prevention Products
Posted by On Wednesday, February 3, 2016

Since the 1990s, studies have found that roughly 1 in 5 women will experience some form of sexual assault while in college. Recent results from campus climate surveys have bolstered these numbers. In the past several years, people have been trying to fight this epidemic through many strategies ranging from increased legislation to prevention training.

In addition, companies have recently begun offering other novel solutions. Some are manufacturing wearable gadgets that alert authorities and select emergency contacts when an attack is about to occur. A group of college students is developing a nail polish that changes colors when dipped into a drink that’s been laced with certain date-rape drugs. Entrepreneurs are producing an array of fashionable jewelry that emits a loud alarm when the user pushes a button.

Below, you will find a list of some of the sexual assault prevention products on the market and how they work, followed by an analysis, criticisms, and common misconceptions about sexual assault.

iBall Andi Uddaan: This is a cellular device with a built-in “SOS” button that sends an alert message and phone call to five emergency contacts chosen by the user, posts a Facebook status with a pre-written message asking for help and gives the user’s GPS location (only if connected to the Internet), and emits a loud siren sound to ward off potential attackers.

Athena: Manufactured by Roar for Good, this transformable accessory can be worn as necklace pendant or clip onto clothing, a belt, or purse. The Athena is a “coin-sized personal safety alarm” and comes with an app that allows the wearer to customize their preferences. The device has a button that can sound an alarm “louder than a freight train” while sending a text message with the user’s location to a list of emergency contacts chosen by the user. If the button is held for three seconds longer, the alarm stays silent, but messages are still sent as long as an Internet connection is established. A portion of the company’s proceeds goes to educational programs.

Safelet: A bracelet that sends out alerts with the wearer’s location to the police and emergency contacts (known as “Guardians”) selected by the wearer—this happens when two buttons are pressed simultaneously. Once activated, the device will also call the police and activate the wearer’s cellular microphone, transmitting the sounds coming from the microphone to the police. The wearer can add contacts and security preferences through the Safelet app. The Safelet device operates by using a “secure Bluetooth Low Energy connection.”

First Sign: A hair clip with “built-in gyroscope and accelerometer to detect head impacts indicative of physical assault.” When pressed, the clip turns on a microphone that calls the police while recording the incident. The First Sign clip also emits an audible message when pressed in order to “deter the attacker.” If pressed accidentally, the wearer can access the First Sign app on their phone within 15 seconds to deactivate the false alarm. The First Sign clip uses Bluetooth and an Internet connection must be established in order for the device to work.

Cuff: This is a smart device that can be inserted into the manufacturer’s line of jewelry/accessories (such as a sport band, metal necklaces and bracelets, leather bracelets, and key chains). The device uses a phone app that allows the wearer to set their emergency contacts, and when activated, the Cuff sends the user’s emergency contacts a message. The Cuff device can be paired with any of their jewelry line products to change the look. However, the wearer can’t be more than 20-30 feet from their phone for the device to fully work, and their phone must be connected to the Internet.

Undercover Colors: A nail polish line that detects date rape drugs such as Rohypnol, Ketamine, Ecstasy, and other “roofies” by changing colors when a finger is dipped into a drink to “discreetly” stir. This method can alert the wearer of a spiked drink before they consume it.

It might be reassuring to know that more than pepper spray, mace, rape whistles, and tasers can be used to protect victims before, during, and after an assault. However, the very idea that such a number of up-and-coming devices are necessary is concerning in itself. While the thought of having an aid in sexual assault prevention is undoubtedly a good one, the need for these items is telling of how much of an issue sexual assault has become.

Though prevention gadgets are steps in a good direction, they are not solutions to stopping the act that calls for their existence. And for all the good these products attempt to achieve, they come with a fair amount of criticism:

  • Products such as the aforementioned and others put the burden of rape prevention on the potential victim, not the perpetrators. It is the victims who are going out of their way to obtain and use these products—and while it is a safe, smart thing to ensure one’s safety, perhaps education, accountability, prosecution, and practicing consensual sexual activity should take the forefront.
  • These products may reinforce myths about what sexual assault looks like—for example, a woman who was drugged by a stranger in a bar or was attacked while walking alone at night. While these kind of attacks do happen, research suggests that the vast majority of sexual assaults at college are acquaintance assaults (this is also true for assaults that occur outside of college).
  • Marketing these products to women leaves out male victims. According to a Washington Post-Kaiser Family Foundation survey that polled college students living on or near campus, “twenty percent of women and 5 percent of men reported being sexually assaulted either by physical force or while incapacitated.” This survey and many others reveal that both men and women experience sexual assault.
  • These products are intended to be used before, during, or after a sexual assault has occurred—they do not guarantee that the act will be stopped, that the victim will be safe, or that the attacker will be caught.
  • While date-rape drugs such as roofies are sometimes used to facilitate sexual assault, most often, alcohol is the number one date rape drug.
  • Many of these devices also present some practical challenges: they assume the user already has a smartphone, and many of the devices require that a free mobile app be downloaded and connected to the product itself; for the fashion fashion/jewelry pieces, an accessory cover would be needed to better conceal the product; an Internet connection must also be established in order for the devices to correctly work.

Critics’ assertions that these devices misrepresent the nature of sexual assault and unfairly shift the burden to victims show that these devices cannot solve the problem without educational initiatives providing students the proper context.

Fortunately, many colleges, universities, and now high schools in select states require students to take sexual assault prevention programs or classes. With the well of information, definitions, statistics, and scenarios in these courses, the goal is to educate students about consent and sexual assault, leading to better decision-making and ultimately a safer environment.

These products can save lives, but they need to paired with the proper education and training. The goal is to prevent sexual assault, not just avoid it.

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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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Weekly Roundup
Posted by On Friday, April 17, 2015

This week we have an app that will streamline reporting on college campuses, a new book on a campus sexual assault case by the author of Into the Wild, and a diverse collection of viewpoints on how to achieve progress on preventing campus sexual assault.

New App Promises to Improve Reporting of Sexual Assaults

Three higher education institutions are expected to pilot a new system for reporting sexual assaults. Developed by Sexual Health Innovations, the system is called Callisto after a nymph from Greek mythology. The system offers students information about how to report a sexual assault to their college and local law enforcement agencies. If students choose to report, they can do so through Callisto. If they choose not to report, they can still record information about the assault through the system. Although the school will not be able to see this record without the student’s permission, the school will be able to see aggregate statistical information about users of the system.

Importantly, Callisto has an additional feature that helps schools identify repeat offenders. Students who create a record on Callisto but choose not to file a report with their institution, can opt into a matching feature, which will send the school the reporter’s name and the name of the alleged assailant if someone else files a report on Callisto involving the same assailant. Some commentators, however, expressed concern over the privacy issues and legal protections for the system’s users. As Laura Dunn, a lawyer by training and the founder of an advocacy group for Survivors of sexual assault, explained: “As a survivor and as an activist, I think this is amazing… as a lawyer, I am cautious.”

Bestselling Author to Release Book on Campus Rape

Next week, Jon Krakauer, author of the best sellers “Into Thin Air” and “Into the Wild,” is releasing a book on campus rape. Krakauer’s new book, “Missoula: Rape and the Justice System in a College Town,” discusses multiple sexual assault cases at the University of Montana (UM). UM was the subject of yearlong federal investigation into its handling of sexual assault complaints. Two years ago, UM entered into a Resolution Agreement with the Department of Education’s Office for Civil Rights and the Department of Justice. The Joint Letter of Findings called the Resolution Agreement with UM a “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” The Agreement provides information on important issues such as confidentiality, campus climate surveys, and standards of proof in campus adjudication processes. For the book, Krakauer relied on documentation of the investigations and adjudication of these incidents, as well as talks with psychologists about the effects of rape on survivors. According to the Wall Street Journal, “One takeaway from ‘Missoula’ is that every incident of alleged rape is different, and ambiguities abound. Mr. Krakauer provides no sweeping conclusions.”

9 Perspectives on What Will Signal Progress on Campus Sexual Assault

The Chronicle of Higher Education has collected diverse responses to the question, “what will signal progress on sexual assault at colleges and universities?” The viewpoints range from providing survivors with the tools they need to heal, to ensuring a fair process for everyone involved, to beginning prevention training before college. The contributors include lawyers, advocates, and administrators, including The President of the University of Montana. All of the pieces point to the important leadership role schools play in addressing this issue through training and strong policies and procedures around sexual violence. As Annie Clark and Andrea Pino, the co-founders of End Rape on Campus, suggest in their essay: “Change will come only when colleges lead it, rather than follow the efforts of the students who expect their guidance.”

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Peter Novak Talks Think About It and Creating an Ethic of Care on College Campuses
Posted by On Monday, August 25, 2014

The University of San Francisco and Peter Novak, USF’s Vice Provost for Student Life, were recently featured in an article and video from the National Catholic Reporter. The pieces go into detail about Think About It and how USF uses the program.

Vice Provost Novak and USF collaborated (and continue to collaborate) closely with us on developing the Think About It program.

In a recent opinion piece for the San Francisco Chronicle, Novak discussed the challenges schools face in eliminating campus sexual violence and substance abuse and the steps his university is taking to achieve this goal.

“Creating a new culture is the single largest challenge,” Novak writes, “as universities must contend with the many societal norms that have helped to shape students’ expectations of the traditional college experience. We must push ourselves to break new ground in the prevention of harmful behaviors.”

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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

Weekly Roundup
Posted by On Friday, April 25, 2014

We want to use this week’s Roundup to catch up with a few of the issues we’ve reported on over the last few months. Below we have three updates, follow-ups, and rebuttals.

Why U.S. News Should Absolutely Not Factor Sexual Assault Into Their College Rankings

In last week’s Roundup we wrote about an open letter, signed by a dozen members of the House of Representatives, calling on U.S. News to consider “violence statistics in annual Clery reports” and information such as whether or not a school has “been found to be in violation of Title IX provisions regarding sexual violence” when compiling their annual ranking of American colleges and universities. This week, Annie E. Clark, co-founder of End Rape on Campus, published a thorough explanation of the pitfalls of that plan on the Huffington Post. Clark pointed out that, among other problems, praising schools for having fewer reported sexual assaults could have the counter-intuitive but unfortunate effect of punishing schools that make it easier for survivors to report assaults and rewarding schools that “discourage reporting and intentionally misrepresent their campuses.”

Colleges Combat Unpaid Internships

Last month we reported on a number of recent court decisions that ruled unpaid internships illegal. Now, various schools are taking their own steps to ensure that their own students don’t fall victim to what many see as an exploitive and increasingly common practice. Some schools are removing unpaid internships from their job boards altogether, while others are requiring that employers guarantee that their internship programs meet the guidelines of the Department of Labor before they post them.

White House Task Force to Make Its Formal Recommendations

We’ve been covering the White House task force on campus sexual assault since its inception. Now, the task force is ready to make their formal recommendations, which will be published next Tuesday (check back here for our analysis next week).  In the meantime, you can peruse a letter to the White house signed by seven senators including Sens. Barbara Boxer (D-Calif.) and Kristen Gillibrand (D-N.Y.), which recommends requiring anonymous standardized surveys of campus sexual assault for all colleges and universities, creating a searchable public database of all Title IX and Clery Act complaints and investigations, and creating a single position in the Department of Education to handle all Clery Act and Title IX violations involving physical violence or criminal activity.

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Counting New Crime Statistics
Posted by On Tuesday, March 25, 2014

In the Fall of 1962, President Kennedy sent U.S. Marshals to the University of Mississippi to protect James Meredith, the first African-American student to matriculate at “Ole Miss,” as he faced a riot aimed at stopping him from entering the Oxford campus. Today, nearly a quarter of the university’s students are minorities and a statue of Meredith has been erected as a symbol of the university’s progress.

Sometime during the early morning hours of February 16, 2014, Meredith’s statue was defaced. A noose was tied around its neck and a Georgia state flag with the Confederate battle symbol was draped over its face. Three freshmen were implicated and expelled from their fraternity, while the university is proceeding with disciplinary action. In addition, the FBI is investigating the incident to determine if this was a hate crime intended to intimidate African Americans.

Racially motivated hate crimes are not confined to southern states.  At San Jose State University in California, an African-American freshman was subjected to “disturbing racial indignities” by his white roommates, including fastening a bicycle lock around his neck and displaying the Confederate flag in their dorm room. The victim has filed a $5 million claim against the university, alleging that the dormitory adviser ignored warning signs of a potentially dangerous situation, and four of the roommates have been charged with hate crimes and battery.

Both cases remind us not only that ugly prejudices still exist on today’s college campuses but also that hate crimes such as these are covered by the Clery Act’s reporting requirements. The Clery Act requires every postsecondary school that participates in federal student aid programs to prepare an Annual Security Report that is made available to enrolled and prospective students. These reports provide information about campus safety so that students and their families can make informed decisions about where to pursue higher education. The “Clery crimes” that must be reported range from murder and sexual assault to auto theft and arson.

Effective October 1, 2013, the Violence Against Women Reauthorization Act of 2013 amended the Clery Act reporting requirements. Prior to October 1, 2013, the Clery Act defined hate crimes as those that involved prejudice based on race, gender, religion, sexual orientation, ethnicity, and disability. Starting with the Annual Security Reports due on October 1, 2014, hate crime statistics include two additional types of prejudice: national origin and gender identity.

Hate crime statistics also include these crimes which are not reported under other categories: intimidation, larceny-theft, simple assault, and crimes involving property damage and personal injury. It should be noted that the VAWA of 2013 added these new Clery crimes, which would also be reported as hate crimes if they were motivated by prejudice: sexual assault, domestic violence, dating violence, and stalking.

The new reporting requirements are raising questions about how to count these crimes, and the Department of Education’s Rulemaking Committee is working on regulations to explain compliance, addressing issues such as how to:

  • define the new crimes
  • count and disclose statistics for these offenses

One of the subcommittees has posted Issue Paper #1, which describes the current discussion around how to define new offenses. For example, it is unclear what definition of sexual assault should be used since the FBI’s definition of sex offenses has changed but the 2013 VAWA amendments didn’t reflect those changes.

One important question addressed by Issue Paper #2 is how to count a single reported incident that falls into multiple categories. Examples of how hypothetical incidents might be counted under different interpretations of the VAWA amendments were submitted by one of the negotiators on the Rulemaking Committee to illustrate the problem.

Counting stalking incidents has also raised questions, including: does the course of conduct count as multiple stalking incidents or one incident, and how do you determine where the crime occurred?

On May 29, 2013, the Department of Education issued a memorandum, stating that:

[F]inal regulations to implement the statutory changes to the Clery Act will not be effective until after the Department completes the rulemaking process … The Department expects that institutions will exercise their best efforts to include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014.

The January 2014 White House Report on Rape and Sexual Assault told us that “the Department of Education is engaging in negotiated rule-making with the goal of publishing a final rule by November 2014.”

In the meantime, schools will need to make their best effort at compliance until these questions are answered. We’ll follow the rulemaking proceedings and pass along information as it becomes available, trying to shed light on what constitutes “best efforts” to report these new crime statistics.

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Why Are Students So Unhealthy during Finals Week?
Posted by On Monday, December 9, 2013

It’s that time of the year: the trees are all bare, a coat of frost shines on the sidewalk, the smell of  anxiety hangs in the air, and sleep-deprived students lumber around campus unshowered and unshaven. Ah, finals season!

Most of us intuitively understand that stress is connected to students’ failure to fulfill even the most basic self-care during finals, but why? After all, students usually don’t have class or other commitments during finals week, so they should be able to focus exclusively on studying without ignoring the basics like brushing their teeth and getting enough to eat.

Indeed, one might think that faced with the intense pressure of finals, students would renew their focus and effort. In fact, research suggests otherwise, demonstrating how stress alters the way we make decisions.

When stressed out we tend to focus on the short-term rewards and pleasurable outcomes of a decision while ignoring the less savory and long-term consequences. That’s why it’s so hard to resist eating that pint of ice cream in your freezer after a tough day or to forgo buying that new pair of shoes you covet (but can’t afford) after a miserable meeting at the office.

In other words, it is exactly because students have to study for five finals that a friend’s invitation to party tempts them so much. The stress causes them to focus on the immediate reward of going to the party (socializing and drinking) and not the downside of losing a night’s sleep to late night carousing (hang over and poor grades).

Stress also makes it more difficult for students to connect bad decisions to their consequences. Even if students go out the night before a test, stress will help them remember the pleasurable experience of socializing and drinking and forget the fact that they were horribly hung over for the exam. This is one reason why researchers also link stress to substance abuse and addiction. Under stress, you focus on the pleasures of the drug and lose sight of the negative consequences.

Am I saying that stress makes us short-sighted and irresponsible? Not quite. Another recent study shows that under stress some people are actually more likely to sacrifice their time to help someone they care about. The research supports the uplifting hypothesis that humankind’s default setting is to self-sacrifice (when it comes to close relationships). This is well and good for our species, but it also explains why some harried students take on big social commitments during finals week when they should be making more time for themselves.

All this rather paradoxically suggests that exactly when we need to buckle down and get the most done, we have the fewest cognitive resources to do so because stress saps our willpower. Given this fact, a nudge in the right direction might help students keep their cool and improve their grades.

A few common tips worth reminding students about:

Exercise (like walking) has long been touted as an important stress reliever and memory aid. Recent studies suggest that regular exercise also boosts creativity.

Mindfulness and meditation are also good ways to decompress and still the turbulent waters of daily life.

Also remind students to wait until after finals to make big decisions. The simple act of waiting can help students make better, more reflective choices.

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Privacy vs. Safety: Does FERPA Apply to Sexual Assault Cases?
Posted by On Monday, November 25, 2013

Navigating the muddy waters between protecting student privacy and addressing complaints of sexual misconduct still causes confusion. Does FERPA prohibit disclosure of information about sexual assault cases? As one expert points out, many schools perceive a conflict between the confidentiality of student records under the Family Educational Rights and Privacy Act (FERPA) on the one hand, and the competing rights of sexual assault victims and other students under Title IX and the Clery Act on the other.

While this post is only intended to address whether FERPA prohibits disclosure of information about peer sexual assault complaints, a few basics are in order. As the Department of Education explained in a 2006 interpretation letter, FERPA protects “education records” maintained by or for the school which are tangible documents (including media and electronic data). FERPA does not, however, protect personal knowledge or observations:

FERPA applies to the disclosure of tangible records and of information derived from tangible records … As a general rule, information that is obtained through personal knowledge or observation, and not from an education record, is not protected from disclosure under FERPA.

Therefore, even if an education record exists containing the same information, FERPA doesn’t protect the confidentiality of information independently obtained from personal knowledge or observations.

In addition, the education records must contain “information directly related to a student” — in other words, they must directly or indirectly identify the student. So far this seems pretty straightforward. However, the various exceptions to FERPA protection when sexual assault is involved seem to cause confusion.

Starting with a clear exception, schools may disclose — without the accused student’s consent — the final results of a disciplinary proceeding involving alleged acts that, if proven, would constitute a violent crime or non-forcible sex offense:1

  • to anyone if the alleged perpetrator is found to have committed the offense
  • only to the alleged victim if the accused is not found responsible. In this case the victim must be told not to disclose the outcome to a third party

The result of a disciplinary proceeding is not final until after any appeals. Once the result is final the school may disclose the student’s name, the offense, and any sanction imposed, as indicated above. Another slightly more confusing exception allows disclosure of the investigative reports and other records2of campus police and security units involving sexual assault complaints if they are created for a “law enforcement purpose.” Whether the records qualify for this exception depends on (1) who created the records, (2) why they were created, and (3) who maintains them.

Under FERPA, if the records are created “exclusively for the purpose of a possible disciplinary action against the student” those records would be “education records.” However, the ED Secretary has said that it “expects such occasions to be very rare, especially when incidents involv[e] criminal conduct by students at postsecondary institutions.” Thus, if a student reports a sexual assault to campus police and other security staff their records are probably not protected from disclosure by FERPA.

A couple of cases illustrate how FERPA has been misapplied at the expense of student safety. Last year Oklahoma State University did not alert campus or local police when a victim reported to Student Affairs that he’d been molested. Over the next month the accused molester committed more assaults. Finally, a student newspaper reporter received an anonymous tip and contacted police, which led to the perpetrator’s arrest. In September, Nathan Cochran pled guilty to three criminal counts of sexual battery for fondling and performing oral sex on other male students while they slept in his fraternity house. Cochran was suspended from OSU for three years.

When the OSU victim first came forward, no tangible education record existed relating to the accused student. LeRoy Rooker, the ED’s chief FERPA enforcer for 21 years, said “Just forget FERPA at that point.”

And even if an education record existed a third exception, FERPA’s health and safety exception likely applied. Again, Rooker provides guidance in ED’s 2006 interpretation letter:

This provision allows an educational agency or institution to disclose personally identifiable information from education records, without prior written consent,in connection with an emergency [to] appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons. 20 U.S.C. §1232g(b)(1)(I); 34 CFR §§99.31(a)(10) 99.36.3

In another case, Swarthmore College’s disciplinary proceeding found the accused student responsible but the victim felt the sanction did not protect her or other students in part because the accused’s identity was never revealed by the school. Though her assailant was found responsible for rape and suspended, he will be allowed to re-enroll after she graduates. In the meantime, his suspension wasn’t made public so he continues to visit the campus and present a safety risk.

When Liz Braun, Dean of Students at Swarthmore, asked for student feedback about the school’s College Judiciary Committee process, the victim described the CJC process as “unnecessarily torturous.” She asked a valid question in her response to Dean Braun: “Should the outcomes of CJC hearings and appeals be made public with identifiable names of perpetrators?” In fact, the accused student’s name could be made public if the CJC’s final decision found him responsible. This would not violate FERPA and could help protect other students.

Responding to a question about obtaining information from schools regarding sexual assaults against college students, ED Secretary Arne Duncan encouraged journalists to seek assistance from Department of Education staff if they encounter schools misapplying FERPA. While participating in a conference call organized by the Education Writers Association, Duncan stated, “Where districts or schools are — I’m not saying they are — but if they’re sort of hiding behind FERPA and not sharing simple information, we’re happy to try and assist there.”

A journalist from Student Press Law Center said she plans to follow up with ED’s chief privacy officer, Kathleen Styles. We’ll be looking for further guidance on this issue but hope that in the meantime this post provides some explanation of what is and isn’t a legitimate use of FERPA when it comes to protecting the privacy of students accused of committing sexual assault.


1. While this post focuses on sexual assault complaints, this exception to FERPA protection covers a number of violent crimes and non-forcible sex offenses listed in 34 CFR §99.39 and 34 CFR §99.31(13)and (14) covers the conditions that allow disclosure of information without consent.

2. 34 CFR §99.8(b)(1) defines “law enforcement records” as “records, files, documents, and other materials that are — (i) Created by a law enforcement unit; (ii) Created for a law enforcement purpose; and (iii) Maintained by the law enforcement unit.” While FERPA allows disclosure, the confidentiality of records maintained by a school’s security staff may be restricted by the school’s policies or applicable State law.

3. 34 CFR §99.31(10) provides that prior consent not required to disclose information where “The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36.”
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