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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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Weekly Roundup
Posted by On Friday, June 13, 2014

For this week’s roundup, we’re taking a look at the other side of cases, statistics, and thought pieces that have been widely publicized in the ongoing national conversation about campus sexual assault.

The Rise in Campus Sexual Assaults Being Reported Might be a Good Thing

Between 2001 and 2011 the number of sexual assaults reported on college campuses rose 52%, from 2,200 to 3,300. Counter-intuitively, that striking rise may in fact be a good thing. Given the fact that the rise in reported assaults corresponds with increasing pressure on colleges and universities to handle sexual assault cases more openly and effectively, it seems likely that the rise in reported assaults indicates not a rise in sexual violence on American campuses but in the percentage of that violence which is officially acknowledged and, hopefully, addressed. And, as a result of colleges acknowledging the problem victims feel empowered to come forward, increasing the number of reported incidents.

Young Men Accused of Sexual Assault Fight Back

It turns out that victims of sexual assault aren’t the only ones unhappy with the way various schools have handled their cases. Their accused assailants are beginning to complain as well, filing lawsuits against their schools and even Title IX complaints alleging bias in favor of victims in disciplinary hearings that discriminates against men. For example, Brown student Daniel Kopin, the alleged perpetrator of a violent rape that has gained national attention, has taken the largely unprecedented step of having his lawyers send a letter to the Department of Education’s Office for Civil Rights, to “make sure that his reputation wasn’t further damaged in any action the OCR might take because of [the victim's] complaint.” This emerging pushback against more effective policing of sexual violence on college campuses is a reminder of how crucial it is that disciplinary procedures to resolve complaints of sexual assault  be “adequate, reliable, impartial, and prompt.”

George Will’s Sexual Assault Column Sparks Outrage

A recent George Will column alleging that efforts to fight campus sexual assault “make victimhood a coveted status that confers privileges” has, understandably, provoked outrage. The piece has the National Organization for Women calling for Will’s dismissal from his position with the Washington Post, and a host of commentators pointing out numerous inaccuracies in the piece. These include his supposed refutation of the statistic that 1 in 5 women will be assaulted in college (his numbers were taken from a single university, currently under investigation for Title IX violations) and his reliance on Clery Act statistics, which are, according to Representative Jackie Speier “notoriously underreported.” The column also provoked this response from four U.S. Senators: “The culture you described is so antiquated, so counterintuitive and so contrary to anything we hear that we hope you will make an effort to hear the stories survivors bravely share with us …” Moreover, it seems that Will’s contention that young women would covet the status of sexual assault victim is, given the treatment of sexual assault victims at numerous schools, highly questionable at best, and, in light of studies that show that false rape accusations are exceedingly rare (between 2% and 8%), a dangerous perpetuation of rape myths at worst.

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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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Weekly Roundup
Posted by On Friday, May 16, 2014

Much of our coverage on this blog focuses on the latest and most innovative methods of preventing sexual assault and holding the perpetrators of assaults responsible for their crimes. This week, we’re bringing you stories of three unique, though in some cases controversial, techniques for fighting sexual assault on American campuses.

Alleged Perpetrators Named on Bathroom Walls

The first and probably most controversial story comes from Columbia University, where unknown activists have repeatedly published the names of alleged “Sexual assault violators on campus” and “Rapists on Campus” on fliers and bathroom walls. The frustration evidenced by such tactics may come as no surprise at a university where 23 students have filed a federal complaint regarding Columbia’s sexual assault policies. However, while some students have applauded the vigilante-like tactics, others have criticized such public shaming as being counterproductive to the goal of achieving changes in campus sexual assault policy.

Pop-up Ads Warn Prospective Students about Universities’ Sexual Assault Problems

Meanwhile, the women’s activist group UltraViolet has taken similar tactics online to publicly shame schools accused of Title IX violations.  UltraViolet’s online ads target high school students whose search terms, Facebook profiles, or physical location suggest that they might be interested in attending schools currently under federal investigation for having inadequate sexual assault policies. The ads ask if the user has been accepted to the university in question, and warn, “You should know about its rape problem before you attend.” According to InTheCapital, a similar campaign targeting Dartmouth last year reduced admissions by 14%. Naturally, such campaigns have created controversy, especially because not all of the schools targeted by UltraViolet are actually under federal investigation.

FundRazr Campaign Raises Funds for Sexual Assault Lawsuit

A student’s lawsuit against Yale University and its philosophy professor accused of sexual assault claims the university of “knowingly protecting him.” The lawsuit is getting a boost from an online fundraising campaign meant to raise funds to hire an expert witness for the unnamed plaintiff. The campaign (which has met its $7,000 goal) was supported by a number of noted philosophers, some of whom have referenced the numerous recent sexual assault scandals in their discipline when explaining their contributions.

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When Students Are Also Employees
Posted by On Thursday, April 3, 2014

Early this week, we wrote about “costly” unpaid internships. But lawsuits over unpaid internships are only the first tremors in the shifting landscape of student workers.

The National Labor Relations Board (NLRB) just ruled that football players at Northwestern University who receive scholarships are employees of the school and can unionize. The Northwestern case is one of several that might change the nature of college athletics.

In arguing against the athletes’ bid to unionize, Northwestern cited a 2004 decision by the NLRB that declared graduate assistants at Brown University were not employees and therefore could not unionize. The NLRB concluded in the Brown case that the graduate students’ work assisting faculty members was related to their academic studies and hence they were “primarily students,” not employees.

In distinguishing between the student-athletes and graduate students, the NLRB determined in the Northwestern case that the relationship between the university and the athletes was economic — not educational — based on the fact that the athletes’ football duties are unrelated to their academic studies. Therefore, unlike the graduate students, the athletes were not “primarily students.”

Detailing weeks in which the athletes spent up to 50 to 60 hours on football, the board declared:

Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies…Obviously, the players are also required to spend time studying and completing their homework…But it cannot be said that they are “primarily students” who “spend only a limited number of hours performing their athletic duties.”

Though Northwestern will appeal the decision, it already seems to be affecting how some colleges approach their athletes. Stanford, for instance, sent out a memo to its coaches and staff members on how to respond — or not respond — to the NLRB’s ruling.

Indeed, over at the Title IX Blog, Erin Buzuvis speculates on how the ruling might affect Title IX: “I believe that if the decision results in actual bargained-for benefits for student-athletes of one sex, Title IX would continue to require that such benefits inure equally to student-athletes of the other sex.” Buzuvis continues:

This outcome will surely seem weird to many people…But that’s the consequence of…running a profit seeking business enterprise while receiving federal support and non-profit status. With the latter comes the obligation to comply with civil rights laws like Title IX. And now, with the former, comes the obligation to comply with employment and labor law as well.

As Lloyd Cotsen and Lauren Gaydosh  have pointed out, the Northwestern case provides an opportunity for the higher education community to reflect on the proper balance between the students’ education and their campus work experience:

Regardless of legal definitions all students engaged in campus-related work deserve proper protections and regulations…The NLRB ruling should not scare us but instead encourage careful thinking about how to avoid exploitative student labor and preserve a meaningful campus work experience.

The decision, then, is an opportunity for schools to reflect on how they can help ensure a healthy work-life balance for students, one that fosters a positive campus environment for everyone.

UPDATE (8/27/2015): On appeal the NLRB declined to assert jurisdiction — a decision effectively denying the players the right to unionize under the NLRA. 

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Weekly Roundup
Posted by On Friday, March 21, 2014

For the last several weeks we’ve been covering an ongoing national conversation about the dangers and advantages of Greek organizations on college campuses. This week, three stories illustrate the fact that the problems and dilemmas posed by Greek fraternities are not unique to that particular brand of student groups, or even the United States.

Black Fraternities’ Hazing Problem

Most of that ongoing national conversation has focused on fraternities that are largely white, heterosexual, and, naturally, entirely male. But of course there are sororities, as well as black, Asian, Latin, and various professional fraternities and sororities. These groups often face different problems than those faced by predominantly white fraternities, but that doesn’t mean that they are problem free, or should be ignored in a conversation about the dilemmas posed by student groups. A good example is provided by this story about hazing and black fraternities—since the beginning of 2014, more than 17 members of black fraternities at three different universities have been arrested for hazing.

Student Co-op’s Drug Problem

Nor are problems like substance abuse limited to student groups with the word “fraternity” or “sorority” at the end of their name. Take, for example, the latest bit of drama coming from U.C. Berkeley, this time out of its student cooperative system, the largest in the country. Cloyne Court, which is itself the largest housing co-operative in the country, recently settled a lawsuit brought by the family of resident John Gibson, who has been in a drug-induced coma since he overdosed while living at Cloyne in 2010. Faced with “unaffordably high” insurance rates, Berkeley Student Cooperative president said, “We need to make a direct response to this settlement to show our efforts to prevent further incidences and liability. A change needs to happen now.” Radical changes to address what they see as a culture of substance abuse at Cloyne, include evicting all but one of the co-op’s current residents, and rebranding it as an academic-themed, substance-free residence.

Portugal’s Hazing Problem

The drowning deaths of six Portuguese university students in a single hazing (or praxes) incident, has sparked a national debate in that country about whether or not the tradition of hazing first-year students should be banned. Unlike in this country, hazing in Portugal is not associated with student groups, but is instead a general rite of initiation for incoming students, demonstrating that the inclination towards reckless behavior amongst young people is one that cannot be solved simply by targeting specific, or even all, student groups.

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Weekly Roundup
Posted by On Friday, March 14, 2014

A national fraternity is making big changes, while college presidents don’t think they have to. It’s this week’s Weekly Roundup!

College Presidents Agree Colleges Have a Sexual Assault Problem—Just Not Their College

Much of this blog is dedicated to the epidemic of sexual assaults afflicting college campuses. Much of that coverage has focused on schools’ all-too-often inadequate responses to allegations of sexual assault. Now, a new study suggests that college presidents are aware of at least part of the problem—71% of college presidents agree that institutions of higher education need to improve their response to sexual assault. Which institutions exactly need to clean up their act is unclear however, as 95% of those presidents surveyed asserted that their schools “handle sexual assault allegations appropriately.”

New Lawsuit Challenges the Campus SaVE Act

One possible solution to the issues 95% of college president’s don’t think their institutions have is the Campus SaVE Act, which lays forth at least some guidelines for how schools deal with and attempt to prevent sexual assault. However, a lawsuit filed earlier this month asks a federal court to stop application of Campus SaVE Act provisions in all campus disciplinary proceedings, as well as a pending federal investigation of the University of Virginia’s mishandling of a sexual assault case.  The lawsuit contends that the Campus SaVE Act, which took effect last October, is one step forward, two steps back for victims of sexual assault because it “eliminat[es] the preponderance standard set forth three years ago by the DOE. It also removes the time limit for colleges to resolve sexual assault cases.” They want the court to resolve any conflicts between the Title IX guidelines in the 2011 Dear Colleague Letter and the Campus SaVE Act.

However, U.S. Senator Robert Casey, the senator who originally drafted the Campus SaVE Act, says the Campus SaVE Act was not intended to supersede Title IX requirements in the DCL. Casey told the Rulemaking Committee currently drafting the implementing regulations that, “institutions will still be subject to Title IX obligations … to use the ‘preponderance of evidence’ standard,” as well as the requirement that proceedings be “prompt and equitable.”

SAE Fraternity Ends Hazing Nationwide

In the past few weeks we’ve included stories about the pros and cons of the impact Greek organizations have on campuses and student life. Now, it seems that at least one Greek organization—the fraternity Sigma Alpha Epsilon—has been listening to their critics. Their national office announced this week that, following a number of deaths linked to hazing and substance abuse, they would end hazing at their chapters nationwide.

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Conduct Hearings vs. Criminal Justice
Posted by On Tuesday, March 11, 2014

In addition to the flood of Title IX lawsuits filed by female college students against their schools for failing to adequately respond to sexual assault complaints, schools are now facing a rising number of lawsuits filed against them by male students accused of sexual assault. These students claim that they have suffered damage to their reputations and emotional distress. They also claim that student conduct hearings violate their due process rights and are biased in favor of their female accusers.

This places schools in a catch-22 situation. On the one hand, if they don’t “take immediate and effective steps to end sexual harassment and sexual violence” they face a lawsuit from the victim. On the other hand, if they don’t turn student conduct hearings into a court of law or refer all sexual assault complaints to the criminal justice system they face lawsuits for not complying with the accused students’ due process demands.

Previous posts examine the differences between the standard of proof and right to cross-examine required in student conduct hearings on the one hand, and criminal trials on the other. These differences reflect the fact that student hearings are not courts of law, while recognizing that accused students must receive a fundamentally fair hearing.

Many sexual assault victims choose not to pursue criminal charges against the accused and, unfortunately, there are good reasons for their decision that we will discuss. Therefore, in order to fulfill its obligations under Title IX to end sexual harassment (including sexual assault) whenever it knows or should know it exists on campus, each school should be taking a hard look at its disciplinary proceedings to make sure its hearing process is fair, prompt, and impartial.

Criminal Justice for Sexual Assault Victims

How effective is the criminal justice system at handling sexual assault cases? Dr. Rebecca Campbell’s research found 86% of sexual assaults reported to police are never referred to prosecutors, and 90% of victims felt upset and re-traumatized by their interaction with law enforcement when they reported a sexual assault.

Dr. Campbell’s research is consistent with the RAINN website’s statistics, which show that 8 out of 100 police reports are prosecuted and half of those reports result in a felony conviction. This means only 4 out of 100 sexual assault complaints result in a conviction.

One study found that survivors of acquaintance assault are less likely to notify police because they:

  • are too embarrassed
  • fear reprisal
  • think the police won’t believe them
  • believe the police would be ineffective
  • don’t consider themselves crime victims

When research shows that false sexual assault reports are rare and 96% of sexual assault cases are rejected by prosecutors, it’s not surprising that victims are reluctant to make police reports.

DOJ’s Investigation of Missoula County Attorney’s Office

The criminal justice system of Missoula, Montana provides a high-profile case in point. Last year, the U.S. Department of Justice issued its findings after investigating the Missoula Police Department, and concluded that the MPD compromised investigations and deprived “female sexual assault victims of basic legal protections.”

The DOJ also investigated the Missoula County Attorney’s Office. The DOJ recently released its findings that, even when Missoula police did refer sexual assault cases to the County Attorney’s Office, it refused to prosecute “nearly every case of non-stranger assault” involving a victim who was incapacitated by drugs or alcohol. Since 85-90% of campus sexual assaults are committed by someone the victim knew and 72% of college women who were raped were intoxicated at the time of the attack (Journal of Studies on Alcohol, Mohler-Kuo, et al., 2004), this is a major deterrent to reporting these crimes.

In fact, in one case cited by the DOJ the perpetrator admitted raping an unconscious woman and the County Attorney’s Office still declined to prosecute. Based on its investigation, the DOJ concluded there was pervasive gender bias against women who reported sexual assaults to local police:

[T]he County Attorney’s Office’s handling of crimes of sexual assault is indicative of unlawful gender bias, perpetuates a culture that tolerates sexual assault, dissuades victims from reporting crimes, leaves violent criminal activity unaddressed, and compromises the safety of all women in Missoula. Such a situation strongly suggests that MCAO stands in violation of the Constitution and federal anti-discrimination laws.”

Given the institutional and individual barriers to ending acquaintance assault through the criminal justice system, student conduct hearings are critical to the success of a campus sexual assault prevention program provided the disciplinary process meets Title IX and Campus SaVE Act requirements.

Student Conduct Hearings Requirements

Proper hearing procedures and qualified hearing officials are essential to meeting a school’s legal obligations and managing risk in sexual assault cases.

Both Title IX and the Campus SaVE Act require schools to have a disciplinary process that provides prompt, fair, and impartial investigations and resolutions of sexual misconduct complaints. The Campus SaVE Act also requires that disciplinary proceedings are “conducted by officials who receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.”

Therefore, the first step is to train members of the campus community who investigate sexual assault complaints and are involved in student disciplinary proceedings. Getting to the truth in a case involving allegations of alcohol-facilitated, non-stranger sexual assault with no witnesses is a difficult and emotional process. It requires knowledge of the unique challenges presented in these cases.

The next step is to make sure that a school’s hearing procedures provide a solid framework for fair and impartial hearings. Title IX requires that a school must provide grievance procedures for:

  • reporting sexual misconduct, including sexual assault
  • allowing equal opportunities for each party to present witnesses and evidence
  • using the preponderance of the evidence to resolve complaints involving sexual misconduct
  • notifying both parties of the outcome of the complaint (determination and any sanction imposed)
  • giving either party the right to appeal the decision

Under the Campus SaVE Act, schools must disclose their policies that establish these procedural requirements, and the Department of Education expects the policy to reflect the institution’s practices. Simply having a policy that is not consistently followed will not pass a compliance review.

Schools have their work cut out for them. They must protect the safety of the campus community by encouraging reporting and holding perpetrators accountable. Each school is unique and has its own set of challenges but the way forward is the same: educate students and employees, and implement fundamentally fair disciplinary procedures designed to eliminate campus sexual violence and the risk of being sued in the first place.

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Why Your Course Materials Might Violate the ADA
Posted by On Tuesday, August 27, 2013

The Government Accounting Office (GAO) reported that in 2008 nearly 11 percent of postsecondary students had a disability, ranging from visual to motor impairments. Though administrators and faculty may be familiar with some common accommodations for disabled students such as extra time on exams and note takers, they may not know that they also need to ensure textbooks, websites, handouts, and similar course materials are accessible.

For example, roughly 100,000 to 200,000 postsecondary students have print disabilities, meaning they cannot read standard print because of physical, developmental, or learning disabilities. Legally, schools need to make reasonable accomodations for these and other disabilites that prevent students from accessing print and digital content.

The lack of accessible materials can have serious effects on a student’s success, causing them to fall behind or even withdraw from courses without access to the same materials as their classmates.

Three high-profile cases settled in the first-half of 2013 illustrate the importance of making sure all course materials are accessible.

  • In March, South Carolina Technical College System entered into an agreement with the Department of Education’s Office for Civil Rights (OCR) over findings that its websites were not accessible to visually impaired students. It agreed to develop a resource guide of accessibility requirements, make its websites accessible, and annually review its websites and address accessibility problems.
  • In May, the University of California at Berkeley reached a settlement with Disability Rights Advocates (DRA) to ensure that students with print related disabilities had access to all necessary materials. Berkeley agreed to implement policies and procedures to provide access to print materials through alternative media solutions, interim accomodations, or personal readers.
  • In July, the Department of Justice (DOJ) settled with Louisiana Tech University over claims that the university used an online learning product that was inaccessible to blind students. The university will make learning technology, web pages, and course content accessible, and train its instructors and administrators on accessibility requirements.

Training the Faculty

As these recent cases illustrate, the push to move course material online is creating new challenges (and opportunities) with regards to accessibility. Indeed, as more students with disabilities enroll in colleges and universities, faculty will increasingly need to be forward-thinking to ensure their textbooks, handouts, and online materials are fully accessible.

Part of the Louisiana Tech agreement explicitly requires the university to train “all individuals who provide any course-related instruction to University students (including, but not limited to, professors, instructors, other faculty, and teaching assistants)” on accommodation requirements and best practices.

Indeed, at this year’s annual meeting of the National Association of College and University Attorneys, L. Scott Lisner of Ohio State University spoke to this issue:

“I used to say I didn’t want individual faculty members making individual accommodations for their students. Now I need 5,000 content creators to be creating accessible content…I don’t expect a faculty member to convert a textbook, but it is not unreasonable of them to convert a 20-page article on a webpage into an accessible format.”

(Quoted in Online Accessibility a Faculty Duty at InsideHigherEd). Lisner is the president of the National Association on Higher Education and Disability.

Faculty can also help students understand their responsibilties. Unlike high schools, colleges and universities do not need to identify students with disabilities or document their needs. Thus a greater burden rests on the students’ shoulders. They must identify themselves, provide documentation of their disabilities, and request accommodations. This means that new students with disabilities may not be aware of their responsibilities at the university level.

For example, the Berkeley settlement includes Alternative Media Guidelines for disabled students. The guidelines provide students with information on requesting and receiving accessible course materials.

So, as the new school year starts, here are some important questions to ask about your own campus’s accommodation procedures.

  • Does your school have an individual who coordinates the school’s compliance with the Rehabilitation Act and ADA, as required by law?
  • Do you have professionals evaluate accommodation requests on a case by case basis?
  • Do you have well-publicized grievance procedures to ensure prompt and equitable resolution of complaints?
  • Are faculty members aware of their responsibility to accommodate students with disabilities? Do they know how?
  • Are course websites and your school’s learning management systems accessible?
  • Do you reach out to students with disabilities who may not be aware of the services your school provides or how to get them?

Further Reading

Grasgreen, Allie. “Audiobooks Aren’t Enough,” InsideHigherEd. 26 July 2013.

Rothstein, Laura. “New Legal Questions About Diability Demand Colleges’ Attention.” Chronicle of Higher Education. 5 August 2013.

ADA best practices toolkit for websites

Joint Dear Colleague Letter on “Electronic Book Readers,” Department of Education and Department of Justice

Department of Education FAQ

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